Monday, December 10, 2007

The CIA Interrogation Tapes

In the wake of the recent revelation that the CIA had destroyed tapes of its interrogations of terror suspects and the on-going controversy over waterboarding, Joe Biden (D-DE) is now calling for the appointment of a special prosecutor to investigate. First of all, I am not sure what it is that should be investigated. Secondly, how does Biden's call for a special prosecutor tie in with the revelation that members of Congress, including Nancy Pelosi, were given a tour of the CIA's overseas detention sites and were briefed about interrogation techniques (including waterboarding).

First of all, I am not concerned about the CIA's destruction of the tapes. Being an intelligence agency, I don't see where there was a legal requirement that those tapes be preserved. Preserved for what? For demonstration to our enemies as to how we will interrogate them?

As a retired law enforcement person, let me draw a distinction between law enforcement interrogations and the CIA interrogations. When police interrogate a suspect or prisoner, it is commonplace to make a videotape-but not legally required. It is a good idea because it protects the officer from later accusations of impropriety and documents the confessions, admissions or false satements of the suspect as well as his or her body language. Once that tape is made, it is evidence and must be kept as such-and be made available for trial. It cannot be destroyed until all legal processes and appeals are completed.

The CIA is different. They are not in the business of bringing people to trial. Indeed, they are loathe to get involved in any legal proceedings in order to protect the identity of their operatives, sources and methods. So they are not involved in the day to day evidentiary process that police are. This is not to say that they are above the law. We have, indeed, prosecuted rogue CIA agents when they break the law. It is just that I don't see any legal requirement for the CIA to maintain and safeguard tapes they make of interrogations. I would add that the CIA does not tape interrogations for the same reasons as law enforcement does, which I outlined above.

So now, Joe Biden, as usual, is outraged. We need to get to the bottom of this, according to Joe. Of course, this is all connected to the on-going controversy over waterboarding, which seems to outrage most Democrats. Yet, the Washington Post has reported (December 9, 2007) that in September 2002, four bipartison members of Congress met secretly for a tour of CIA detention facilities and a briefing on interrogation techniques, including waterboarding. This group included current Speaker of the House, Nancy Pelosi. According to the Post report, no objections were raised as to the use of waterboarding. Indeed, according to the report, two of the congresspeople asked why harsher measures were not being used. In addition, according to the Post article, the CIA gave about 30 private briefings to legislators which included descriptions of waterboarding. Only one known objection was raised to the practice.

Maybe Biden has figured out that it would be very ticklish for he and other members of Congress to investigate an issue that would embarrass Ms Pelosi. You know the old liberal refrain: What did they know and when did they know it?

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