The Fear of Torture: Tape Destruction or Prosecution – The Guardian and Just Left Blog Post

As we all now know, the CIA has destroyed hundreds of hours of video tapes of the likely 2002 water torture of three men, allegedly involved with al-Qaida, by its agents. Although the CIA has not acknowledged that the videos are of water torture – often known euphemistically as “waterboarding” – a former CIA agent, John Kiriakou, has said that the waterboarding was authorized from the highest levels of the Bush administration.

Now we are seeing the usual Washington scrambling and casting of blame after another serious revelation of torture. Most of the official focus seems to be on who made the decision to approve the destruction and not on the underlying issue: the fact that the Bush administration, with the apparent consent of some of the congressional leadership, sanctioned torture.

This endorsement was criminal under both US law and international law – and that opens high level administration officials to prosecution, whether in the US or abroad.

This fear of prosecution for torture is the best explanation as to why these tapes were destroyed. They would have been vivid and compelling example of the violation of laws against torture – laws that in the US carry a life sentence or the death penalty if the victim is killed. Laws in most European countries make such violations of the convention against torture a universal crime, prosecutable no matter where the torture occurred or where the torturer resides.

Another explanation for the destruction might be the anger the footage could engender in the Muslim world if they were revealed publicly. However, the chances for public revelation were slim. Unlike the Abu Ghraib prison photos, these tapes were apparently only in the possession of the CIA. That explanation lets the CIA and the Bush administration off the hook much too easily and ignores evidence that fear of prosecution was likely critical in the destruction decision.

CIA head Michael Hayden’s explanation is patently absurd: he said that he feared for the safety of the CIA agents involved if al-Qaida saw their identities. Apart from the ability to shadow out the faces, what are the real chances that someone in al-Qaida would see the tape and be able to identify and track down an agent?

The fear of prosecution best explains the destruction of the tapes. That fear has governed numerous actions of the Bush administration regarding the torture program. The earliest legal memos from the Bush administration, as long ago as January 2002, were explicit on this issue and advised not applying the Geneva conventions as a means of avoiding prosecutions that could follow from their violation. The McCain amendment builds into its prohibition on cruel, inhuman, and degrading treatment a defense for authorized interrogation practices and those that relied upon “the advice of counsel.” The Military Commission Act of 2006, passed after the destruction of the tapes, forgives past violations of the Geneva conventions by officials involved in the torture program. So we have Congress, and not just the Bush administration, attempting to absolve clear violations of law.

This explanation also makes sense considering the risk that arguably was taken by destroying the tapes: they were relevant to a number of proceedings including the Guantanamo federal cases, criminal trials, the 9/11 commission and a federal freedom of information act case. Hayden tries to claim otherwise, saying they were not relevant to “any internal, legislative, or judicial inquires.” Yet, orders had been entered in those cases prior to the destruction mandating preservation or release of such information.

Now, those responsible for the destruction are facing contempt of court and possibly other sanctions. The tape destroyers and their superiors had to be very worried to run this risk. Unfortunately, we will never know what these tapes show. It is doubtful that anyone would question that waterboarding was torture if the tapes were seen. The tapes may also have much higher level officials observing the water torture then we now realize. Former US secretary of defense Donald Rumsfeld was involved in the torture of Guantanamo detainee Mohamed al-Qahtani, and was likely involved in others.

So why, if there was such a fear of prosecution by officials, did they video hundreds of hours of these interrogations in the first place? Hayden says it did so to insure that the CIA proceeded “in accord with established legal and policy guidelines.” This seems farfetched. Would the CIA or the Bush administration take the huge risk of making such videos when the tapes could lead so directly to a prosecution?

There is another, more plausible, explanation. It is likely the tapes, or some version of them, were to be used as a threat against those who were waterboarded and others whom the CIA or US officials wanted to interrogate. Videos and photographs of the humiliation and powerlessness of those tortured could be used as threats to get other detainees to “cooperate” and could even make informants of some detainees to be released – under threat that their “cooperation” or “humiliation” could be exposed. This also explains why it took so long to destroy the tapes. If they were just done to insure compliance with guidelines, why not destroy them a short time later?

In the end for the CIA and the administration the destruction of the tapes, despite the fallout, was better then the alternative of the potential criminal prosecution of both CIA and high level executive officials. The front page scandal we are dealing with is about the destruction of the tapes and not the criminal conduct that underlies them.

The Bush administration can and will weather, as they have before, the fallout and finger pointing from this scandal. A few congressional inquiries and some internal investigations from Congress, possibly a scalp or two of a mid-level official, and that may well be the end of the matter. This outcome is more or less assured – in part because of Congressional involvement in tacitly approving the techniques and possibly the destruction itself – because the best evidence no longer exists.