Reprint from Associated Press, December 20, 2007
Analysis: CIA Tape Case Evokes Watergateby Tom Raum
Administration officials refuse to shed light on whether White House lawyers talked to the CIA about whether to destroy interrogation videotapes of two terrorism suspects but bristle at questions into the affair and complain about news coverage. That puts the White House in an awkward position. The very vision of White House officials sitting around a table talking about such an inflammatory course of action evokes echoes of Nixon and Watergate.
The secret destruction of the CIA tapes in late 2005 has drawn fire from both a federal judge and from Congress. The tapes purportedly documented harsh interrogation techniques approved by the White House, including waterboarding, which simulates drowning.
The revelations generated the second controversy over U.S. intelligence-gathering in as many weeks. It followed a National Intelligence Estimate that Iran had halted its nuclear-weapons program. That drew criticism of the agency from conservatives, while the tape destruction drew outrage mostly from congressional Democrats - and spawned a round of congressional hearings into why lawmakers were kept in the dark.
Destruction of the tapes was “totally improper behavior that smacks of efforts by past administrations to destroy evidence as quickly as possible,” said Paul C. Light, professor of public policy at New York University. “Even if it didn’t violate specific law, it violates the spirit of transparency.”
“It brings up the schooling that the Nixon administration received regarding the destruction of the secret White House tapes,” Light said, referring to published reports that senior White House lawyers were involved in back-and-forth discussions with the CIA between 2003 and 2005 over whether to destroy the tapes.
Of course, in the matter of the incriminating audio tapes secretly made in the White House more than three decades ago, those tapes were ultimately saved for posterity and not destroyed or erased - other than perhaps for the famous 18 1/2-minute gap on one tape.
White House press secretary Dana Perino says President Bush “has no recollection” of hearing about either the CIA tapes’ existence or their destruction before being briefed about it last Thursday by CIA Director Michael Hayden. She won’t say whether other White House officials played a role, citing an investigation under way by the Justice Department and the CIA.
Yet Perino told reporters on Wednesday, “Some of the questions are legitimate questions - that the public has and that the attorney general and General Hayden have. ” Among these, she said, is “Who knew what when?”
Another echo of Watergate, that response recalled the repeated questions of Sen. Howard Baker, R-Tenn, at the nationally televised Watergate hearings in 1973: “What did the president know and when did he know it?”
The New York Times in Wednesday’s editions said that White House officials who discussed the videotapes with the CIA before their destruction included: Alberto Gonzales, who served as White House counsel until early 2005; Harriet Miers, who succeeded him as White House counsel; David S. Addington, the counsel to Vice President Dick Cheney and now his chief of staff; and John B. Bellinger III, senior lawyer at the White House National Security Council until early 2005.
The article did not say what positions each of the four officials may have advocated.
The White House would not comment on the story but took the unusual step of issuing a statement on Wednesday saying that the newspaper’s “inference that there is an effort to mislead in this matter is pernicious and troubling.”
U.S. District Judge Henry H. Kennedy on Tuesday ordered Justice Department lawyers to appear before him Friday to discuss whether destroying the tapes, which showed two al-Qaida suspects being questioned, violated his 2005 order to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantanamo Bay, Cuba.
That ups the ante, said Marc Rosenberg, executive director of the Electronic Privacy Information Center. “There is a presumption against the destruction of records involving potential or alleged government misconduct. But when there is a judicial preservation order in place, the destruction of such records raises far-reaching concerns.”
Former Reagan administration national security officer Robert F. Turner, now associate director of the University of Virginia’s Center for National Security Law, said the destruction of the tapes may not have been an illegal act by itself. “But if a judge told them not to destroy evidence, then you’ve got a problem of who was involved in the decision.”
“Did the people who knew of the judge’s order say, `No, we can’t do that?’ If people who knew - or should have known - of the judge’s order were involved in the decision and did not bring that to the attention of others, you’ve got a problem,” Turner said.
Meanwhile, The Democratic-run Congress pledged to investigate the destruction of the tapes despite the Justice Department’s assertion that it could hamper its own investigation. And in a direct challenge to Bush, the House Intelligence Committee said Wednesday it has prepared subpoenas to force CIA officials to testify about the destruction of the interrogation videotapes.
Tom Raum has covered national and international affairs for The Associated Press since 1973.