Monday, December 17, 2007

Judge Orders Hearing as Suspicions Mount of CIA 'Torturegate' Cover-Up

Eerie Echoes of Watergate Sweep Washington After D.C. Federal Court Defies White House Bid to Block a Judicial Inquiry; ACLU Files Motion in N.Y. Federal Court to Hold CIA in Contempt for Violating '04 Court Ruling

The President takes a walk in the snow on the South Lawn with his dog, Spot, Thursday, Dec. 5, 2002.

The loneliest man in Washington? In this 2002 photo, President Bush walks his dog, Spot, on the south lawn of the White House. The image is apt: Bush may now be following in the footsteps of Richard Nixon by stonewalling congressional and judicial investigations of an alleged cover-up of torture tactics by the CIA against suspected al-Qaida operatives. Nixon did the same thing in the Watergate investigation three and a half decades earlier -- and destroyed his presidency as a result. (White House file photo by Eric Draper)

(Updated 2:30 p.m. EST Thursday, December 20, 2007)

By Skeeter Sanders

A U.S. District Court Judge in Washington ordered the Bush administration Tuesday to answer questions about the destruction of Central Intelligence Agency interrogation videos of two al-Qaida suspects, amid growing suspicions that the White House is engaging in a Watergate-style cover-up of CIA interrogation tactics banned as torture under U.S. and international law.

Rejecting the government's efforts to keep the courts out of the investigation, U.S. District Judge Henry Kennedy ordered Justice Department lawyers to appear at a hearing scheduled for Friday morning to discuss whether destroying the tapes, which showed two al-Qaida suspects being questioned, violated his 2005 court order.



The New York Times

WASHINGTON — President Bush deflected questions on Thursday about the destruction of Central Intelligence Agency's interrogation tapes, saying that he will withhold comment until investigations into the affair are complete.

Nor would the president respond directly when asked whether he thought the C.I.A.’s 2005 destruction of the videotapes showing harsh questioning of two suspected terrorists was “the responsible thing to do.”

The president said he was confident that inquiries being started by Attorney General Michael B. Mukasey, by the C.I.A.’s own inspector general’s office and in Congress “will end up enabling us all to find out what exactly happened.”

The president spoke a day after the CIA agreed to make documents related to the destruction of interrogation videotapes available to the House Intelligence Committee and to allow the agency’s top lawyer, John Rizzo, to testify about the matter.

It remained unclear, however, whether Jose Rodriguez, who as chief of the agency’s clandestine service ordered the tapes destroyed in 2005, would testify. Officials said Rodriguez’s appearance before the committee might involve complex negotiations over legal immunity at a time when the Justice Department and the intelligence agency were reviewing whether the destruction of the tapes broke any laws.


CIA Destroyed Tapes Despite 2005 Court Order to 'Preserve Evidence'

Acting in a lawsuit challenging the constitutionality of detentions at the U.S. naval base at Guantanamo Bay, Cuba, Judge Kennedy ordered the Bush administration in June 2005 -- five months before the tapes were ordered destroyed by Jose Rodriguez, Jr., then the chief of the CIA's clandestine operations -- to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at. . . Guantanamo Bay."

Attorneys representing a group of Yemeni detainees at Guantanamo had asked Kennedy to hold a hearing on whether the tapes' destruction violated that order. The now-destroyed recordings involved suspected al-Qaida terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.

Government lawyers told Judge Kennedy the tapes were not covered by his court order because because Zubaydah and al-Nashiri were being kept in secret prisons at the time, not at the Guantanamo military prison in Cuba. By the time President Bush acknowledged the existence of those prisons and Zubaydah and al-Nashiri were transferred to Guantanamo, the tapes were destroyed.

Acting Assistant Attorney General Jeffrey Bucholtz was said in court documents to be concerned that Kennedy might order CIA officials to testify about the tapes. Bucholtz said that "could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter." Bucholtz also argued that Kennedy does not have jurisdiction over the matter in any case.

Kennedy's decision could, as a result of Friday's hearing, lead to charges of obstruction of justice levied against the government.

ACLU Seeks Contempt Citation Against CIA Over Destroyed Tapes

Attorneys in other cases, meanwhile, began pressing other judges to demand information about the tapes.

The ACLU filed a motion in U.S. District Court in New York last Wednesday seeking a contempt-of-court citation against the CIA for violating a judge's 2004 order to produce records concerning the treatment of all detainees apprehended after the 9/11 attacks and held in U.S. custody abroad -- not only at Guantanamo, but also at the CIA's secret prisons in Eastern Europe.

The ACLU had filed a Freedom of Information Act lawsuit in June 2004. U.S. District Court Judge Alvin Hellerstein ordered the CIA and other government departments the following September to "produce or identify" all relevant documents by October 15.

The CIA argued in its response that some of the documents were the subject of an inquiry by the CIA's inspector general and requested a stay of the judge's order. Judge Hellerstein denied the CIA's request for a stay, but did not enforce his decision when the CIA immediately filed a motion for the judge to reconsider his ruling.

CIA lawyers have since kept the ACLU lawsuit at bay by filing repeated motions for continuance. With the agency's admission that it had destroyed the interrogation videos, the ACLU filed its contempt motion. If Judge Hellerstein holds the CIA in contempt, the resulting furor could snowball to a full-scale constitutional confrontation between the executive and judicial branches.

White House Balks at Sharing Info With Congress on Tapes Probe

Suspicions that the White House is engaging in a cover-up of alleged CIA torture tactics had intensified over the weekend as the White House balked Friday at providing Congress with details about the joint investigation by the Justice Department and the Central Intelligence Agency's inspector general into the destruction of hundreds of hours of videotapes of CIA agents interrogating suspected al-Qaida operatives.

Congressional leaders of both parties promptly fired back that the White House has no right to interfere with Congress' constitutional oversight authority to investigate the activities of the executive branch and vowed to press on with their probes -- issuing subpoenas if necessary.

Attorney General Michael Mukasey refused lawmakers' requests to furnish them with details of the administration's preliminary investigation into the videos' destruction, claiming that to do so "could raise questions about whether the inquiry is vulnerable to political pressure."

In a letter released Friday to the leaders of the Senate Judiciary Committee that oversees the Justice Department, Mukasey also said there is "no need right now" to appoint a special prosecutor to lead the investigation, as congressional Democrats are demanding.

"I am aware of no facts at present to suggest that [Justice Department] attorneys cannot conduct this inquiry in an impartial manner," Mukasey wrote to Senators Patrick Leahy (D-Vermont) and Arlen Specter (R-Pennsylvania), the chairman and highest-ranking minority-party member, respectively, of the Senate Judiciary Committee. "If I become aware of information that leads me to a different conclusion, I will act on it."

Mukasey said there is a longstanding policy by the Justice Department of not providing information to Congress about pending cases. "This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence," he wrote.

"Accordingly, I will not at this time provide further information in response to your letter, but appreciate the committee's interests in this matter," the attorney general concluded in his letter, which was also sent to the leaders of the House Judiciary Committee.

AG Interfering With Congress' Oversight Authority, Lawmakers Say

Lawmakers of both parties reacted with anger, accusing Mukasey of acting like his predecessor, Alberto Gonzales, who refused to cooperate with congressional inquiries of administration practices in the past.

Gonzales -- who wrote a controversial 2002 memo to CIA interrogators that gave them the green light to use waterboarding -- resigned in disgrace in September amid accusations that he had eight U.S. attorneys fired for partisan political reasons, possibly in violation of the Hatch Act.

The lawmakers accused Mukasey of interfering with Congress' constitutional oversight authority over the Justice Department and the CIA by refusing to provide the Judiciary Committee with information and by advising the CIA against cooperating with a House Intelligence Committee inquiry into the tapes' destruction.

"Our staff was notified that the Department of Justice has advised CIA not cooperate with our investigation," House Intelligence Committee chairman Silvestre Reyes (D-Texas) said Friday in a joint statement with Representative Peter Hoekstra (R-Michigan), the committee's ranking Republican.

"We are stunned that the Justice Department would move to block our investigation," Reyes and Hoekstra said. "Parallel investigations [by the administration, Congress and the judiciary] occur all of the time, and there is no basis upon which the attorney general can stand in the way of our work. . . It's clear that there's more to this story than we have been told, and it is unfortunate that we are being prevented" from learning the facts.

"The executive branch can't be trusted to oversee itself," the lawmakers concluded.

Hoekstra Blasts CIA, Threatens Subpoenas

For his part, Hoekstra issued a blistering attack on the CIA and on the complex network of U.S. intelligence agencies in general, which he described as arrogant, incompetent and unaccountable.

Appearing on "Fox News Sunday," Hoekstra warned that he will push the House Intelligence Committee to subpoena the Justice Department and the CIA if they refuse to cooperate. "We want to hold the [intelligence] community accountable for what's happened to these tapes," he said. "We will issue subpoenas."

Asked if witnesses will be offered immunity from prosecution in exchange for their testimony, Hoekstra replied that "Once these witness appear in front of the committee, then I think we'll have to make the decision as to whether we're going to provide them with immunity or not. But our investigation should move forward."

Hoekstra said CIA Director Hayden should be held accountable for what he called misleading statements by the agency during his term, which began in 2006 after the tapes had been destroyed.

Showdown Looming Between All Three Government Branches Not Seen Since Watergate

The latest developments in what administration critics are branding as "Torturegate" raise the prospect of a constitutional confrontation between all three branches of government of a magnitude not seen since the early 1970s, when President Richard Nixon's administration stonewalled congressional and judicial investigations of executive-branch wrongdoing in the Watergate scandal.

Nixon's cover-up of the 1972 break-in of the Democrats' national headquarters at Washington's Watergate complex by burglars employed by Nixon's re-election campaign eventually unraveled and destroyed his presidency, which ended in 1974 with Nixon's resignation under threat of certain impeachment and removal from office by Congress.

The drama also come less than a week after The 'Skeeter Bites Report revealed exclusively that a U.S. attorney in Virginia, in a letter to a federal appeals court, disclosed that his office viewed two CIA interrogation tapes two months ago, contrary to CIA Director Michael Hayden's public statements that the tapes were destroyed in 2005.

9/11 Suspects May Be on Still-Surviving CIA Videos in Moussaoui Case

Zubaydah was the first high-value al-Qaida operative to be captured by the CIA in 2002. Al-Nashiri is the alleged coordinator of the suicide attack in 2000 on the USS Cole in Yemen, which killed 17 sailors.

Both Zubaydah and Al-Nashiri may also be on the two CIA tapes that Charles Rosenberg, the U.S. Attorney for the Eastern District of Virginia, disclosed in a letter obtained by The 'Skeeter Bites Report that his office viewed on September 19 and October 18 of this year -- contrary to public statements by CIA Director Michael Hayden that the tapes were destroyed in 2005.

Rosenberg's letter referred to the 2006 trial of Zacarias Moussaoui, the lone suspect convicted in the September 11, 2001 terrorist attacks in New York and Washington that killed over 3,000 people and destroyed the twin towers of New York's World Trade Center.

That remains unclear, however, because Rosenberg's heavily-edited October 27 letter to U.S. District Court Judge Leonie Brinkema, who presided over the Moussaoui trial in Alexandria, Virginia, and to Judge Karen Williams, chief judge of the U.S. Fourth Circuit Court of Appeals in the state capital, Richmond, contained no references to the identities of the al-Qaida suspects whom CIA agents were interrogating.

But the apparent continued existence of the two tapes -- combined with the administration's stonewalling with congressional and judicial probes into the CIA's interrogation tactics -- has given critics new ammunition to accuse the White House of engaging in a cover-up of torture by the CIA.

Tapes Showed Zubaydah Was Waterboarded, Ex-CIA Agent Says

Meanwhile, a former CIA agent who was part of the interrogation team told ABC News in an interview broadcast last Tuesday that the destroyed videos included recordings of Zubaydah being subjected to waterboarding -- and that the tactic was approved at the highest levels of the U.S. government.

Waterboarding is a technique that simulates drowning in a controlled environment. It consists of immobilizing an individual on his or her back, with the head inclined downward, and pouring water over the face to force the inhalation of water into the lungs. The practice is considered a war crime under the Geneva Conventions.

According to John Kiriakou, leader of the CIA team that captured Zubaydah, the waterboarding got Zubaydah to talk "in less than 35 seconds." His information "probably disrupted dozens of planned al-Qaida attacks," Kiriakou told the network.

The former agent refused to say how he learned who approved the interrogation technique, but he did say that such approval came from top officials.

"This isn't something done willy-nilly. This isn't something where an agency officer just wakes up in the morning and decides he's going to carry out an enhanced technique on a prisoner," Kiriakou told ABC News. "This was a policy made at the White House, with concurrence from the National Security Council and Justice Department."

For decades before President Bush took office in 2001, the U.S. regarded waterboarding as a war crime under the Geneva Conventions that govern the treatment of prisoners of war, and America's own Uniform Code of Military Justice -- and had even prosecuted individuals for employing the technique.

Bush's Veto Threat Kills Bill to Ban CIA Torture

Bush further intensified suspicions of a "Torturegate" cover-up on Friday by threatening to veto a bill passed on the same day by the House that would bar the CIA from using waterboarding and other interrogation tactics branded torturous by critics.

The president's veto threat led Senate Republicans to throw up a procedural roadblock against the bill in the upper chamber, effectively killing the measure.

The House bill, approved by a largely party-line vote of 222 to 199, would require the CIA and other U.S. intelligence agencies to follow Army rules adopted last year that explicitly forbid waterboarding. It also would require interrogators to adhere to a strict interpretation of the Geneva Conventions on the treatment of prisoners of war.

The Army rules, imposed by Congress on all Defense Department personnel, also ban sexual humiliation, "mock" executions and the use of attack dogs, as well as withholding food and medical care -- tactics that were employed by U.S. military personnel against detainees at Iraq's now-infamous Abu Ghraib prison near Baghdad after the fall of Iraqi dictator Saddam Hussein in 2003.

The White House argued that restricting CIA interrogation techniques to those authorized by the Army Field Manual "would prevent the United States from conducting lawful interrogations of senior al-Qaida terrorists to obtain intelligence needed to protect Americans from attack."

"Hogwash," say administration critics.

Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, told The Washington Post that the CIA's admission that it had destroyed videotapes of its interrogations of al-Qaida suspects is one reason that the legislation is needed.

"It's unlikely the tapes would have been destroyed unless the CIA believed that they showed something that they needed to hide: interrogators engaging in practices that most of the world would consider torture," Daskal said.

Retired Army General Paul Kern, who led the Abu Ghraib abuse investigation, accused the White House of having "two sets of standards for interrogation -- one for the CIA and another for the military."

This double standard, Kern told the Post, creates problems for the credibility and accountability of the U.S.

General Kern is one of 27 retired military officers who signed a letter that urged the House and Senate intelligence committees to hold the CIA to the same standards that Congress set for the military. "We ought to have one set of standards, period," Kern said.

McCain: New Interrogation Policy Needed

On the presidential campaign trail, Republican White House hopeful John McCain said he wants "a crash program" in civilian and military schools that emphasizes language and creates a "new specialty in strategic interrogation" so the nation never feels the need for torture.

McCain, a former Vietnam prisoner of war who suffered mistreatment, talked about the new proposal at a campaign stop Saturday in Columbia, South Carolina. He said he wanted to create an Army Advisory Corps of 20,000 soldiers to act as military advisers and revive the World War II-era Office of Strategic Services to fight terrorists.

Meanwhile, members of the Senate Intelligence Committee slammed both the destruction of the CIA videos and the aggressive interrogation techniques suspected to be used in those interrogations. Appearing on CBS' "Face the Nation" on Sunday, Senator Chuck Hagel (R-Nebraska) expressed worries of a Watergate-style cover-up.

"Burning tapes, destroying evidence, I don't know how deep this goes," he said. "Could there be obstruction of justice? Yes. How far does this go up in the White House -- who knew it? I don't know."

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NEXT MONDAY: In the tradition of the late advice columnist Ann Landers' annual Christmas Day column, "The 'Skeeter Bites Report" will present an updated version of its annual holiday special on "The Pagan Roots of Christmas."

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Volume III, Number 2
Copyright 2007, Skeeter Sanders. All rights reserved.