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Ifs and ButsIf the CIA hadn't destroyed those tapes, what would be different?

By Emily Bazelon and Dahlia LithwickPosted Monday, Dec. 10, 2007, at 5:43 PM ET

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Dahlia Lithwick covered opening arguments of the Supreme Court's hearing of Boumediene v. Bush and Al Odah v. United States and detailed just how few rights belong to Guantanamo prisoners. Emily Bazelon revealed why the Bush administration is wrong when it says history supports its treatment of the detainees and covered the Guantanamo hearings at federal appeals court. Lithwick also explained why the Bush administration won't close Guantanamo.

Now consider the Bush administration's continuing efforts to keep the Guantanamo Bay detainees out of court. In that same fall of 2005, the Supreme Court agreed to hear a dispute over the rights of detainees at Guantanamo. It held later that year that the Geneva Conventions applied at the camp. Meanwhile, no federal court has ever reviewed the factual basis for the continuing detention of more than 300 detainees. In their efforts to get to court, however, the detainees did succeed in winning at least two orders from district court judges in spring and summer 2005 that required the government to preserve all evidence relevant to their cases. In an emergency motion filed this past Sunday, lawyers for the Guantanamo detainees asked for a hearing on the destruction of the tapes. The detainees assert that if the government wrecked those recordings in November 2005, it did so several months after the preservation orders were issued—which would mean those orders were directly violated as well.

When the detainees initially asked for this evidence to be preserved in January 2005, the Bush administration opposed their request, saying "this case is utterly devoid of any circumstances warranting such an order" because "there is no evidence of any document destruction in this instant case" and, in fact, the government had "numerous reasons … for ensuring the preservation of the documents in question." Apparently those reasons weren't good enough for the CIA. Given that the Guantanamo detainees say that many of them were implicated solely on the basis of other prisoners' tortured confessions, video examples of that torture would only have helped them. These defendants have argued all along that the evidence against them has no weight because people say anything under torture. The tapes would have made their point graphically, indisputably, unforgettably.

And what about Congress? When John McCain was trying to pass the anti-torture provisions in the Detainee Treatment Act in that very same fall of 2005, he faced stiff opposition from the White House. It was hard to beat down, and McCain wrestled his law into being only by accepting a "trust us" compromise. The government said it would no longer abuse the detainees, and McCain agreed to accept vague language for his statute rather than sticking closely with the internationally recognizable words that bar torture. This has allowed for all sorts of fuzziness about what is and isn't torture and whether it is or isn't happening. That's what the fight over water-boarding at Attorney General Michael Mukasey's confirmation hearing was all about. With the tapes in hand, perhaps McCain—and the Democrats—would have stuck with first principles and passed a law that clearly adhered to international standards the first time. Maybe if we'd had to watch water-boarding as the CIA practiced it in 2002, on a desperate crazy man spewing science fiction rather than truth, the nonsense that torture is effective would never have found any purchase.

Finally, there's the 9/11 Commission, which made broad-based, far-reaching requests for evidence relating to the attacks, yet wasn't told about the tapes. The commission's 2004 report relies heavily on the accounts of 10 named detainees, among whom are Abu Zubaydah and Abd al-Rahim al-Nashiri, the alleged planner of the 2000 attack on the USS Cole and the second man tortured on the destroyed tapes. The commission called assessing the truth of their statements "challenging." They tried to verify and corroborate the witnesses' statements whenever possible. Still, these accounts are woven into the commission's narrative, and nowhere does the 9/11 report delve into interrogation tactics or make any recommendations about the government's continuing or future practices. That wasn't the commission's mandate. Still, one wonders where video evidence—or the knowledge that such evidence was being withheld—might have led it.

Kevin Drum started asking the questions we are posing over the weekend. He pointed out that the tapes would have revealed "not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical 'confessions' under duress." Those confessions, and others like them, have been the underpinning for much of the government's legal assault on the rule of law in recent years, from free and open trials, to secret expansions of executive powers. Certainly Drum is speculating, just like we are. It's impossible to say for sure what the tapes would have revealed, much less how such revelations might have changed all these recent events. But it's worth trying to refit the pieces, because this evidence was deliberately obliterated. Otherwise, the CIA's act of destruction wins.