In 2005, the CIA destroyed 92 videotapes that had depicted the torture of two detainees. The destruction took place over objections from the White House, the CIA’s legal counsel, and senior intelligence officials.
Gina Haspel, President Trump’s nominee to head the CIA, drafted the cable ordering the tapes’ destruction and lobbied for them to be shredded. She claims, however, that she did not think the cable she drafted would be sent before “making sure that we had all the stakeholders’ concurrence.”
Now, a bipartisan group of senators, including Sen. Jeff Flake (R-Ariz.), Sen. Martin Heinrich (D-N.M.), Sen. Ron Wyden (D-Ore.), Sen. Dianne Feinstein (D-Calif.), Sen. Kamala Harris (D-Calif.), Sen. Jack Reed (D-R.I.), and Sen. Angus King (I-Maine), are calling on the Justice Department to make a federal prosecutor’s report about the destruction of the videotapes available to senators before the chamber votes on Haspel’s nomination.
In 2008, then-Attorney General Michael Mukasey appointed federal prosecutor John Durham to investigate the destruction of the tapes. Durham’s inquiry was later expanded to look into “alleged CIA mistreatment of detainees” and “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”
While an executive summary of the report has been made available to Senate Intelligence Committee members, the entire report has been kept a secret — including from the full Senate, which will be voting on Haspel if the committee approves her nomination. The New York Times lost a previous legal challenge to make the report publicly available.
The videotapes were destroyed in complete disdain for the rule of law. In 2004, one year before the tapes’ destruction, a judge ordered the CIA to “produce or identify” records relating to the treatment of detainees in CIA custody. That order came as a result of a legal challenge by the ACLU. One year later, a federal judge in a separate case ordered the government to search for video or audio recordings of detainee interrogations. In clear defiance of the courts, the CIA destroyed the tapes.
The tapes were shredded just one day after the Senate voted on a 2005 amendment which, had it passed, would have created an independent commission to look into the agency’s detention practices. According to the executive summary of an extensive report on CIA torture by the Senate Intelligence Committee — the full version of which has also been kept secret — that vote prompted “renewed interest at the CIA to destroy the videotapes” over fears that “such a commission would lead to the discovery of videotapes documenting CIA interrogations.”
Haspel’s nomination has prompted renewed urgency to release the Durham report. In her confirmation hearing last week, Haspel contradicted the CIA’s own documents when she claimed that there was only one detainee depicted in the tapes, not two.
The report may also shed light on conflicting statements from Haspel and her former boss, Jose Rodriguez, about her knowledge of his decision to order the videotapes destroyed. Rodriguez has implied that Haspel knew more than she has let on.
Durham ultimately decided not to bring any charges — part of a long and shameful pattern of impunity when it came to the CIA’s unlawful program. Because the basis for Durham’s decision has been hidden from the public, we have no assurances about Durham’s conclusions, and we continue to call for a comprehensive and independent investigation of the torture program. News reports indicate that his investigation includes precisely the kind of information about Haspel that the CIA has been effectively shielding from the public.
According to NBC News, Democratic members of the Senate Intelligence Committee have prepared a “disturbing” document that addresses “comments by Haspel in support of the CIA’s brutal interrogation program at the time it was ongoing.” The Intercept further reports that information from Durham’s inquiry is included in the memo:
Relying on classified records, it goes into detail on Haspel’s role in torture, the destruction of evidence, and her tenure more broadly, according to people briefed on its contents.
The memo draws from the results of an investigation by special prosecutor John Durham, who looked into CIA activity following 9/11 and ultimately chose not to bring charges.
Every American should be wary of what Sen. Wyden has described as an “A to Z cover-up” of Haspel’s torture record. A vote on her nomination without access to her full record, including the Durham report, would be a failure of the Senate’s constitutional obligation to provide ‘advice and consent’ on nominations.