In the first public hearing on the CIA’s destruction of taped interrogations, members of House Judiciary Committee sought advice today on whether and how to investigate the agency’s actions.
“There are those who say, ‘Well, they’re gone; there’s nothing we can do about it,’” said Rep. John Conyers (D-Mich.), who chairs the committee. “I wish I knew that with any particular certainty.”
No such luck. The Justice Department declined an invitation to testify, though a chair was left open at the witness table. There were many other idle seats. Having finished their business last night, most committee members had already left the Capitol. Only Conyers (D-Mich.) and four other democrats attended the hearing. Rep. Lamar Smith (R-Texas) showed up to deliver a brief opening statement but left soon after to catch a plane.
The DOJ's absence was in keeping with Attorney General Michael Mukasey's refusal last week to provide congressional Democrats information about the department’s role in the destruction of the tapes. In a letter to members of the Senate Judiciary Committee, Mukasey said it was the department’s practice to withhold information in ongoing investigations to prevent the perception of political influence. ("We've not even gotten a letter," Conyers sniffed.)
Conyers was eager to put Mukasey’s argument to the test on the panel of witnesses, which included two law professors, an expert on international law, and a the head of a human rights organization.
Stephen Saltzburg, a law professor at George Washington University, said that a congressional investigation would not interfere with the Justice Department’s inquiry into the tapes because much about them was already known from the CIA’s own admissions. He counseled the committee to move ahead with its investigation immediately, warning that more delay would make it harder for congressional investigators to reconstruct the events surrounding the tapes’ destruction.
“You’re already looking at two years,” Saltzburg said.
CIA officials have said the tapes were destroyed in November 2005. A. John Radsan, a professor at William Mitchell College of Law and former CIA assistant general counsel from 2002 to 2004, said the tapes’ destruction could have been timed around the Supreme Court’s decision at the time to review a detainee-rights case, Hamdan v. Rumsfeld, which cast doubt on the administration’s processes at Guantánamo Bay, Cuba, and eventually led to the Military Commissions Act of 2006.
Moreover, Radsan said, The Washington Post had just published details of the CIA’s network of secret prisons abroad, Sen. John McCain (R-Az.) was leading the charge in Congress for a ban on torture and the Justice Department was backing away from legal memos that endorsed harsh interrogation methods.
“The political lines were changing,” Radsan said. He advocated the appointment of a special prosecutor to investigate the DOJ’s role in the tapes, but said it was unlikely that either the CIA or department’s actions amounted to obstruction. If anything, he said, a prosecutor would be more likely to bring charges of false statements, based discussions within the CIA, DOJ and White House.
David Rivkin, a partner at Baker & Hostetler and an expert in international law, urged the committee to allow the Justice Department some room to investigate, touting Mukasey’s record as a federal judge. He called the destruction of the tapes a “foolhardy” move on the CIA’s part, but said it was “somewhat unfair” to assume that the Department of Justice was incapable of handling the matter without the congressional oversight.
The Washington Post reported today that the CIA has agreed to comply with lawmakers' requests for documents related to the tapes and will provide officers to testify in congressional hearings. Rep. Silvestre Reyes (D-Tex.), chairman of the House intelligence committee, told the Post yesterday that he will schedule a hearing for Jan. 16.
The Justice Department had also asked the courts not to interfere its investigation, but U.S. District Judge Henry Kennedy Jr. ignored the request, scheduling a hearing tomorrow morning on whether the agency violated a protective order by destroying the tapes. The request for the hearing was entered by lawyers for a group of detainees at Guantánamo Bay who say the tapes' destruction raises questions about the government’s obligations to preserve evidence.