Ifs and Buts
If the CIA hadn't destroyed those tapes, what would be different?
Posted Monday, Dec. 10, 2007, at 5:43 PM
In the uproar over the destruction by the CIA of taped interrogations of suspected al-Qaida operatives in the aftermath of Sept. 11, we are discovering creative new ways to speculate about past events. The pastime has begun with what should have been done differently—finger-pointing at congressional Democrats who'd been briefed about the tapes and remained silent, or distress over the failure to inform superiors at the CIA or the Bush administration. But here's a different thought experiment: How would the national debate over torture have changed if we'd known about the CIA tapes all along? How would our big terror trials and Supreme Court cases have played out?
Yes, this is also a speculative enterprise, but it's critical to understanding the extent of the CIA's wrongdoing here. And we have a benchmark. When the photos from Abu Ghraib were leaked in 2004, a national uproar ensued. Video of hours of repetitive torture could have had a similarly significant impact—the truism about the power of images holds. If we are right about that—and we think we are—this evidence that has been destroyed would have fundamentally changed the legal and policy backdrop for the war on terror in ways we've only begun to figure out.
A timeline is instructive; here's a detailed one. (Click here for a text-only version.) These tapes were made sometime during 2002. They were destroyed in November 2005, according to the Washington Post. It's worth asking how the Moussaoui trial, the Jose Padilla trial, and the cases of those detained at Guantanamo Bay would have gone differently if the evidence had been produced in the interim instead of destroyed. Then there's the thinking of the 9/11 Commission. And of Congress, which passed legislation about torture and interrogation in December 2005, without the benefit of tapes that would have illustrated what the lawmakers had just allowed. It's hardly a stretch to say that if these torture tapes had made it to YouTube, Michael Mukasey wouldn't have been parsing and mincing about water boarding this fall.
One of the two men tortured on the CIA tapes is Abu Zubaydah, whose confession supplied the main evidence supporting the warrant issued for Jose Padilla's arrest in May 2002 at O'Hare Airport. Padilla was promptly labeled a "dirty bomber" and an enemy combatant and tossed in a brig for 43 months. When he was finally prosecuted on a conspiracy theory, in a Florida federal court in 2007, Padilla's lawyers claimed Zubaydah had implicated him under torture. The Justice Department dismissed these allegations as "meritless," since there was no proof Zubaydah had been tortured. It's bad enough that the DoJ just "lost" the tapes of Padilla himself being interrogated. It now also seems clear he was first grabbed on the say-so of a crazy person who was willing to say anything to stop the abuse he experienced. One of Padilla's lawyers tells us that if these tapes had been disclosed, it would have been far more likely that the Supreme Court would have taken up the case for a second time, when Padilla tried to go back to the high court in April 2006.
Next: Moussaoui, who, let's not forget, faced the death penalty. The same fall that the CIA tapes were destroyed, according to the Post's timeline, federal district court Judge Leonie Brinkema ordered the government to turn over evidence of specific interrogations relating to the allegations against Moussaoui. His lawyers reportedly wanted to know whether the al-Qaida trio of Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed had inculpated Moussaoui, or failed to name him. According to the New York Times, CIA lawyers told federal prosecutors that the CIA did not possess any such evidence.
That means the two biggest terror trials we've had since Sept. 11 were predicated on torture evidence that was then destroyed. The government has argued that al-Qaida operatives cannot be tried because the evidence against them is secret and threatens national security. But the real rationale is much worse: The evidence against them is wholly unreliable.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Michael Hayden by Emmanuel Dunand/AFP/Getty Images.