Hayden’s Letter

Marty Lederman has posted a copy of Michael Hayden’s letter to the CIA from yesterday. I wanted to riff further on it. The non-bold brackets below are Marty’s comments. The bold italics are mine. I know this may be hard to read, but I wanted to leave in Marty’s comments because he’s a lot smarter than I am.

Message from the Director: Taping of Early Detainee Interrogations

The press has learned that back in 2002, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005. I understand Note the voice here and recall that they seem to never have fully briefed Mike McConnell on all the details of the illegal warrantless wiretap program. I’m wondering how Hayden "understands" this process? Does he have all the details? that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries–including the trial of Zacarias Moussaoui. [What about the 9/11 Commission? What about the failure to tell the Moussaoui judge about these tapes? What about the obvious future legislative and judicial inquiries? (Note that the destruction likely occurred just after Dana Priest broke the story of the CIA black sites in 2005.)] I’m not sure I agree with Marty–I think other possible dates for the destruction of the tapes, given the timeline, are around the time when OLC was writing new opinions on torture (between May 10 and May 30, 2005). That said, if the tapes were destroyed after Priest’s story (November 1), then they were almost certainly destroyed after Brinkema asked for the damn things (November 3) but before the government said they didn’t have them (November 14), which would make the claim that they were not relevant to a judicial proceedings a bald-faced lie. The decision to destroy the tapes was made within CIA itself. The leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency’s intention to dispose of the material. [Yes, and what did they say about that?] Our oversight committees also have been told that the videos were, in fact, destroyed. I love the timing on this. Given the reporting, I’m guessing the Intell Committees were informed in 2003 (when Jane Harman wrote her CYA letter), and then informed they had been destroyed in 2006 (when it was too late to do anything about it). I had thought yesterday that the heads of the Intell Committees were told in 2005, during the debates on torture and the fallout from Abu Ghraib. But apparently the CIA kept mum about that.

If past public commentary on the Agency’s detention program is any guide, we may see misinterpretations of the facts in the days ahead. Uh huh. If the manuals from Gitmo didn’t specify that Red Cross couldn’t see certain detainees, we wouldn’t all suspect the worst–it’s your own damn fault.

With that in mind, I want you to have some background now. Shorter Hayden: Here is the party line. Learn it, love it, and use it.

CIA’s terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa’ida personnel and operations, had been seriously wounded in a firefight. When President Bush officially acknowledged in September 2006 the existence of CIA’s counter-terror initiative, he talked about Zubaydah, noting that this terrorist survived solely because of medical treatment arranged by CIA. Under normal questioning, Zubaydah became defiant and evasive. It was clear, in the President’s words, that "Zubaydah had more information that could save innocent lives, but he stopped talking." Would you care to discuss Zubaydah’s mental illness? Because that might explain why he was evasive–reason itself was apparently unavailable to Zubaydah.

That made imperative the use of other means to obtain the information-means that were lawful, safe, and effective. To meet that need, CIA designed specific, appropriate interrogation procedures.

Before they were used, they were reviewed and approved by the Department of Justice and by other elements of the Executive Branch [why other "elements" of the Executive branch? Which ones? And doesn’t this confirm that OLC approved the CIA techniques — probably orally — even before the 08/01/02 Torture memo was promulgated?] I take those other elements have the initials O.V.P. Also, I wonder if they destroyed the 2002 videos because they were filmed before there was written guideance? Even with the great care taken and detailed preparations made, the fact remains that this effort was new, and the Agency was determined that it proceed in accord with established legal and policy guidelines. So, on its own, CIA began to videotape interrogations. Why the "on its own" part? I’d wager some money it’s a lie designed to protect either Dick or the President. Remember that one of the purposes of the photos and videos of high value detainees was for propaganda purposes, and I imagine they might have wanted to use tapes of Zubaydah praising Christian Jesus as a way to discourage Al Qaeda rank and file. Is that what this statement is in there for?

The tapes were meant chiefly as an additional, internal check on the program in its early stages. At one point, it was thought the tapes could serve as a backstop to guarantee that other methods of documenting the interrogations-and the crucial information they produced-were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes. [Can you imagine? No need for actual video and audio recordings of this vital gathering of "crucial information." No need for future trials, future investigations, future training, future investigations, etc.] Indeed, videotaping stopped in 2002. This is, I’m fairly certain, a bald-face lie. As scribe points out, the Gitmo manuals describe videotaping. As I pointed out in my timeline, the Administration was tweaking their policies on photos and videos all through 2005, and we know that Padilla’s interrogation was taped because they lost a tape of his from 2004. I think Hayden tells this lie because his claim that they destroyed the tapes bc they no longer needed them depends on it.

As part of the rigorous review that has defined the detention program, the Office of General Counsel Note the Office of General Counsel probably means "John Rizzo," who is not exactly the guy you want to exercise oversight over your torture program. examined the tapes and determined that they showed lawful methods of questioning. The Office of Inspector General also examined the tapes in 2003 as part of its look at the Agency’s detention and interrogation practices. [And it "determined," what, exactly? Did the IG say?: "Yeah, sure, go ahead and destroy the only primary evidence of my investigation."] Beyond their lack of intelligence value-as the interrogation sessions had already been exhaustively detailed in written channels [think about that — the U.S. government claiming that video "lacks value" once it is described in detail in a written version. Let’s just hope that’s not business-as-usual at the CIA. Yup, Jim, I’ve written down what was in those photos; you can throw them out now."]-and the absence of any legal or internal reason to keep them [hmm . . . legal or internal . . . interesting use of adjectives], the tapes posed a serious security risk. Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qa’ida and its sympathizers. [Surely such identities could be redacted or hidden, no? Is it SOP for the CIA to destroy all its records containing agents’ identification, because of the prospect that they might one day be leaked?]

These decisions were made years ago. [Note the passive voice.] But it is my responsibility, as Director today, to explain to you what was done, and why. What matters here is that it was done in line with the law. [And where, exactly, is that law explaining how an agency can destroy evidence of possible wrongdoing?] Over the course of its life, the Agency’s interrogation program has been of great value to our country. It has helped disrupt terrorist operations and save lives. It was built on a solid foundation of legal review. [Oh, so that’s what they call the August 2002 OLC torture memo.] It has been conducted with careful supervision. If the story of these tapes is told fairly, it will underscore those facts.

Mike Hayden

Given how obvious it is that the CIA destroyed these tapes because they didn’t want to be held legally responsible for torture, this letter must really sound ridiculous to those at the CIA who don’t want to be known as torturers.

  1. bmaz says:

    Has anybody checked the VCR/DVD combo player by the Barcalounger in that Vader sized walk in safe? I’ll bet not allthe copies were really destroyed.

  2. JohnForde says:

    “The decision to destroy the tapes was made within CIA itself.”

    I’m guessing Darth is secretly ‘inside’ the agency.

  3. TheraP says:

    Just to add a little context here. From an article describing the opening of Vatican files on the Inquisition – back in 1998:

    …look back across the history of the Church in order to undertake a thorough “examination of conscience.” The decision to open the archives of the Inquisition was a product of that directive, Ratzinger said. He expressed the hope that the decision would help scholars to understand the history of the Inquisition “without prejudice.” Cardinal Ratzinger also cited the “legitimate aspirations of researchers” as an additional reason to open the archives, which contain some 4,500 documents. He cited, for example, a letter written by an American Jewish scholar, Charles Ginzburg, and addressed to Pope John Paul soon after his election to the pontificate, asking for access to these resources. Ginzburg had reasoned that by opening the archives the Holy See could show “openness to the world.” And Cardinal Ratzinger added that the Church was also showing “she has nothing to fear, even on this subject, from critical and scientific research.”

    link: http://www.cwnews.com/news/vie…..ecnum=6772

    Examination of Conscience Much needed.

  4. Leen says:

    Leave no evidence behind that you have ignored the Geneva convention and other International agreements. More evidence of the free fall.

  5. nomolos says:

    Very interesting EW

    The comings and goings at the top of the CIA may well have some bearing on the shredding timeline.

    Tenet resigned June 2004
    McLaughlin was put in as acting
    Goss was nominated in August 2004
    Resigned May 2006.

    All the while an election was taking place. Do you think that Tenet might have refused to destroy the torture tapes?

    • emptywheel says:

      I think it’s possible–I saw how that worked in teh timeline. But jsut as likely he refused to preside over a CIA that couldn’t torture. His resignation announcement just precedes the abdication of torture, and his departure just follows all the resignations and public stink surrounding it.

  6. scribe says:

    Quickly (Writing this as I read the letter): CIA Directors do not determine what is “relevant to the criminal trial” of anyone, even Moussaoui. Judges, weighing probative value against prejudice in the context of the issues to be proven (or disproved) at trial, make that determination of relevancy.

    Another assault on (a) separation of powers, (b) judicial independence, (c) law (i.e., Brady and statute (18 USC 3501, IIRC) requires production of potentially exculpatory evidence to the defense, and then the judge can decide on motions what is, and what is not “Relevant”)

    The relevancy is just a dodge which really says “CIA is King”.

    • bmaz says:

      Yeah, well, not to mention that it is, you know, like illegal for a governmental agency and actors to destroy direct evidence of their own criminal culpability. If the tapes depicted waterboarding (and there is probably much more on the tapes that exceeds the threshold than just waterboarding) then they depict direct criminal acts in violation of numerous statutes, codes and treaties. The “no longer had intelligence value” is a beyond laughable statement of explanation. Trying to dismiss the story with that line of unadulterated bullshit ought to be a crime in and of itself. Perhaps Jello Jay, and his playmate in the sandbox of nicompoopery Kit Bond, can draft up some retroactive immunity for these patriotic evidence custodians in the intelligence community….

      • MadDog says:

        Perhaps Jello Jay, and his playmate in the sandbox of nicompoopery Kit Bond, can draft up some retroactive immunity for these patriotic evidence custodians in the intelligence community….

        Perhaps they already did in the MCA legislation of 2006. That language about retroactive immunity there sure seems to cover a lot of bases and actors.

        Just what have they got on Jello Jay that makes him so obviously craven?

        • merkwurdiglieber says:

          They don’t need anything on Jello Jay, he is a Rockefeller after all,
          Democrat or not… shades of uncle Rocky. Also, Hayden at confirmation
          denied there was probable cause affirmed by a judge in the 4th amendment.

        • emptywheel says:

          Not that it excuses Jello Jay (who I think is just the product of the kind of atrophy that sets in when you’re too damn wealthy), but note the timing. Jello Jay did not learn they had destroyed the tapes until AFTER they had passed MCA.

  7. merkwurdiglieber says:

    Remember all that burn the tapes advice Nixon was getting from young
    replacement staffers like Cheney? Memories of the bunker and the fuhrer
    that can never fade away.

  8. eCAHNomics says:

    Hi EW,

    Just a drive-by for now to say that I’m glad you’re keeping on top of this story. It’s BIG. Noticed I got a H/T on the Scott Horton commentary, which is really important. No statute of limitations. No W pardons. Hope it is so.

    Flood gates are open.

  9. scribe says:

    Interesting – they say the tapes were destroyed (in part) because they no longer had intelligence value.

    Yet, they still oppose releasing captives from Gitmo who (a) were goatherds and (b) have been ther going on 6 years, because they might still have “intelligence value”.

    For that matter, they don’t release stuff from the 40s because it might still have “intelligence value”.

    Unadulterated bullsh*t.

  10. MadDog says:

    EW said:

    I wonder if they destroyed the 2002 videos because they were filmed before there was written guidance?

    Or that there was indeed written guidance from the OVP (perhaps even from Addington to his old BFFs at the CIA) and that documentation has too, been long through the shredder.

    And Mikey Hayden wrote:

    The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes.

    Just how does one actually do “documentary reporting”? Is there a stenographer sitting in on the torture sessions transcribing each and every scream of pain, and gurgle of drowning? Pray tell Mikey, how exactly is this accomplished in lieu of video-recording?

  11. scribe says:

    Some have complained that Harman and Jello Jay Rockerfeller should have spoken up. I’ve addressed some contrary arguments in my comment over at Talkleft, which I link for y’all here, if you’re interested. Just to tie things together, not divert the thread.

  12. radiofreewill says:

    The CIA is invoking its right not to incriminate itself for the period that they were acting as Bush-the-UE’s Agents.

    Sound familiar? Telecoms, anyone?

    This suggests that the Same Authority used to make the Telecoms ‘comply’ with ‘the Program,’ was also used to make the CIA ‘comply’ with the ‘harsh interrogations’ regimen.

    Therefore, by the same logic, the CIA are ‘immune’ from participation as Agents via the Same Authority.

    Iow, Bush-the-UE ordered the ‘harsh interrogations’ regimen, just like he ordered Warrantless Domestic Spying – before any vetting or honest legal review was done – all on the strength of his self-declaration of Above-the-Law-ness.

    The CIA is saying: ‘The problem is Bush, not US.’

  13. Leen says:

    David Gregory just repeated the misinterpreted lines (by the cakewalk zealots) in regard to what Iranian President Ahmadinejad said about Israel. How many times have we heard people in the MSM repeat Iran wants to “wipe Israel off the Map”. Endlessly. And David Gregory just did it again on the Diane Rehm show. The spin about Iran continues, the inflammatory rhetoric is being ramped up even more.

    As Seymour Hersh said on Wolf Blitzer “it is not over yet, there is still Israel” and they are angry about this report.


    Hersh: Bush Told Olmert Of NIE Two Days Before President Was Allegedly First Briefed On It

  14. TheraP says:

    It’s a war crime to photograph or film a captive, right? So, if they admit now that they had “tapes” – and that the tapes were “seen,” then we know they’re not talking audio but video. So, regardless of whether they destroyed the evidence, they’ve admitted filming captives. To me that admission is incriminating right there.

    On top of it, just question whoever viewed the tapes. They can verify captives were filmed… and they describe what they saw.

    Then you’ve got the whole chain of documents which should be there. If they’re not there, more obstruction.

    This is going to take years of sleuthing and prosecutions. But no statute of limitations.

    • emptywheel says:


      Go back and look at the photograph stuff in the TImeline closely. They don’t agree that it is a war crime, particularly in the case of High Value Detainees, which these two would be.

      • bmaz says:

        Well, there is that; but more significantly, I have a hard time seeing how a tape made of a duly gathered interrogation and confession falls within the scope of the ban of propaganda photos/videos of detainees. I don’t see that as applicable here.

  15. MadDog says:

    EW, just a OT heads-up on another juicy bit. From Pat Lang’s place:

    “Senate Republicans are planning to call for a congressional commission to investigate the conclusions of the new National Intelligence Estimate on Iran as well as the specific intelligence that went into it, according to congressional sources…”


    Pat himself then says: “The “jungle telegraph” in Washington is booming with news of the Iran NIE. I am told that the reason the conclusions of the NIE were released is that it was communicated to the White House that “intelligence career seniors were lined up to go to jail if necessary” if the document’s gist were not given to the public. Translation? Someone in that group would have gone to the media “on the record” to disclose its contents.”

  16. rincewind says:

    Why assume that Hayden’s telling the truth now? Whether it’s careful parsing — “tapes have been destroyed” (but not the disks or hard drives) — or flat-out lying, why is he/are they believable now? What better way to shut down any further efforts to force production of interrogation tapes than to “fess up” to destroying them? IF (huge conditional there) anybody ever has the guts to pursue this, just compare the potential penalties for obstruction of justice to those for war crimes and see if it doesn’t make sense that they made a calculated decision to CLAIM they destroyed the evidence.