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Did CIA break the law destroying torture tapes?

Michael Ratner: U.S. law is clear – Torture is a crime and destroying evidence is a crime

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Story Transcript

PAUL JAY, SENIOR EDITOR: Controversy continues on Capitol Hill about the video tapes destroyed by the CIA in 2005 allegedly showing waterboarding and the torture of two top al-Qaida suspects. The tapes were destroyed during the Abu Ghraib torture scandal. The 9/11 Commission asked the CIA for interrogation material in 2004 and was told it didn’t exist. President Bush has denied any knowledge, and CIA director Michael Hayden has stated the tapes were destroyed to protect the identity of undercover CIA operatives against possible reprisals from al-Qaida. Who knew what and when? We go to Michael Ratner in New York. So, Michael, what’s the state of the controversy, and where are we at in this process?

MICHAEL RATNER, CENTER FOR CONSTITUTIONAL RIGHTS: The whole controversy is remarkable because, of course, now they’re focusing on the destruction of the tapes but almost not at all on what the tapes really represent, which is essentially the United States torturing people. I think really went on here and what clearly went on here is these tapes were destroyed to protect high-level administration officials and CIA people from criminal prosecution. And they were frightened about it, whether it was here in the United States or abroad. And I think that comes out because, as you said, they were actually requested to give these tapes over to the 9/11 Commission. In addition, we in our Guantanamo cases had orders from the court requesting that the government, the CIA and others, preserve all CIA materials that might be involved in torture or abuse. So they’re in violation of a court order, not just the 9/11 order. So you have to ask yourself, what were they doing here? They were protecting their own.

JAY: Tell us, just remind us again, where exactly is international law on this, the Geneva Conventions? And to what extent does that affect American law?

RATNER: Well, the law here is 100 percent. This isn’t some vague international law. This is, two treaties. The Convention Against Torture, which the United States is a signatory to, as are over 140 countries, it requires you to ban torture, to prosecute torturers, or to extradite them to other countries for prosecution if they aren’t from your own country. Hundred percent applicable to the U.S. The second treaty, of course, is the Geneva Conventions, which bans everything from torture to inhumane treatment, so it’s the whole gamut of things. There’s no issue that waterboarding fits squarely in the ban of torture.

JAY: The counter-argument by people who are opposed to prohibiting this practice in all circumstances is that there are circumstances where people’s lives are at stake. And we’ll play a clip of an interview with a former CIA agent about the waterboarding of a top al-Qaida suspect.

(CLIP BEGINS)

ABC News

December 10, 2007

INTERVIEWER: And did it make a difference in terms of—?

MAN: It did. The threat information that he provided disrupted a number of attacks. Maybe dozens of attacks.

INTERVIEWER: And, bottom-line, as you sit here now, do you think that was worth it?

MAN: Yes.

INTERVIEWER: Did it compromise American principles? Or did it save American lives? Or both?

MAN: I think both. We’re Americans, and we’re better than this, and we shouldn’t be doing this kind of thing. But at the same time, what happens if we don’t waterboard a person and we don’t get that nugget of information? I would have trouble forgiving myself.

(CLIP ENDS)

How do you respond to something—there may be circumstances where real information might come out.

RATNER: There’s a number of ways. First, the idea that this issue is even up for grabs or is even being discussed I find really just both a legal, political, and really a moral outrage. The first thing you have to question is whether this man who came forward and said that we got valuable information from Zubaida, whether he’s telling the truth or not. And from what we know from other sources is he did not give very valuable information if any. So it’s very conceivable that this former CIA agent was not telling the truth, or was shading the truth, certainly, a lot. And you have to understand, for a former CIA agent to come forward, you have to ask, whose purpose is he serving? He needs clearance from the CIA for anything he says, and therefore you have to think that what he’s saying is something the CIA wanted him to say, and of course they want him to say that this was a successful water-torture that got information we needed. But when you’re being tortured, you say whatever your interrogators want you to say. You don’t say something different. And oftentimes, if not most of the times, it’s not the truth. So that’s the first problem with this. The other problem, of course, is that the interrogators and the U.S. agencies that have opposed the use of torture, and actually the army field-manual, which was published recently again in September 2006, prohibits waterboarding explicitly. The army people said it in the conference announcing that, that this kind of harsh technique, coercive technique, torture does not work. We do much better with normal interrogation practices for getting information. So this is really an after-the-fact justification by the CIA in an attempt to prove that what they did was right. They destroyed the very evidence they claim was so valuable. If it was so valuable and they wanted to prove that waterboarding and water-torture worked, let them come up with the tapes.

JAY: One of the proposals that’s been made is that there should be, in most exceptional circumstances, a way for the president, on his personal authorization, to allow these kinds of methods. What do you make of that proposal?

RATNER: Well, the first problem with the proposal, it’s basically a proposal saying that the president can break the law in the United States. We have a congressional statute that punishes torture, and I would say that the president should be punished if he does it. Secondly, once you give someone the authority to break the law, in what he or she thinks are exceptional circumstances, every circumstance that comes down the line will be exceptional. And third, of course, is the question of that it doesn’t work.

JAY: What do you think should happen next? On the face of it, the CIA has destroyed evidence. What should happen, next, to the CIA?

RATNER: The CIA says that they told four members of the House intelligence and Senate intelligence committees about the waterboarding and about the fact they were thinking of destroying the tapes, including Democrats, including Jane Harman, and including the current leader of the House, Nancy Pelosi. And what’s interesting is, even though Nancy Pelosi in 2002 knew about the waterboarding, she made no objection. So you’re not just talking here in terms of the authority and the use of waterboarding or water torture about the CIA; you’re talking about Congress, you’re talking about the people who allowed the CIA to do it up the chain of command, probably Cheney, probably Bush. So you’re talking about if we’re–a bad issue is really where I would like to see this go, to get the people, investigate the people who really authorized completely unlawful conduct. And the destruction of the tapes, it’s obvious to me that the CIA people should be prosecuted for obstructing evidence, obstructing investigations, destroying evidence. There were court orders all over the place here. And that should certainly happen. But clearly, clearly what happened here, Paul, is that they made a decision that they could deal with the fallout of destroyed tapes better than they could deal with having to show those tapes to Congress or show them to others. And they made a calculated decision to avoid prosecution by simply destroying the tapes, or avoid whatever consequences would be, and they could deal with that. And so what I fear is going to happen, they’ll do some investigations, they’ll put up some guy as the fall guy, but we’ll still have an administration and a Congress that went along with one of the worst tortures that has been traditional for hundreds of years.

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Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.