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CIA's Inability to Produce Videorecording to 9/11 Panel is Possible Liability

CIA's Inability to Produce Videorecording to 9/11 Panel is Possible Liability

Dec-22-07 01:19 pm

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A recently released report from the 9/11 Commission found that the CIA had been unable to produce all materials associated with the interrogation of al-Qaeda detainees despite several requests from the panel. The New York Times reports today that this finding places the CIA at a higher degree of liability of violating federal law, and that further investigation will be needed. The full article details the newest phase of this story:

A review of classified documents by former members of the Sept. 11 commission shows that the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda, and were told by a top C.I.A. official that the agency had “produced or made available for review” everything that had been requested.
The review was conducted earlier this month after the disclosure that in November 2005, the C.I.A. destroyed videotapes documenting the interrogations of two Qaeda operatives.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

Mr. Kean said the panel would provide the memorandum to the federal prosecutors and congressional investigators who are trying to determine whether the destruction of the tapes or withholding them from the courts and the commission was improper.

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Its requests for documents from the C.I.A. began in June 2003, when it first sought intelligence reports describing information obtained from prisoner interrogations, the memorandum said. It later made specific requests for documents, reports and information related to the interrogations of specific prisoners, including Abu Zubaydah and Mr. Nashiri.

In December 2003, the commission staff sought permission to interview the prisoners themselves, but was permitted instead to give questions to C.I.A. interrogators, who then posed the questions to the detainees. The commission concluded its work in June 2004, and in its final report, it praised several agencies, including the C.I.A., for their assistance.

Abbe D. Lowell, a veteran Washington lawyer who has defended clients accused of making false statements and of contempt of Congress, said the question of whether the agency had broken the law by omitting mention of the videotapes was “pretty complex,” but said he “wouldn’t rule it out.”

Because the requests were not subpoenas issued by a court or Congress, C.I.A. officials could not be held in contempt for failing to respond fully, Mr. Lowell said. Apart from that, however, it is a crime to make a false statement "in any matter within the jurisdiction of the executive, legislative or judicial branch."

Whether this finding counstitutes a breach of federal law remains to be seen and is dependent upon further investigation; however, the incongruous nature of the several accounts points to a high degree of probablity that a possible lack of communication between the CIA and other federal bodies has facilitated and complicated efforts to produce an effective process of detainee interrogation and treatment.

Posted by: Brendan P. Geary

Tags: detainess CIA 9/11 Commission torture

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.

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