[NYTr] CIA Withheld Tapes from 911 Panel

[All the News That Doesn't Fit]

sent by Steven Robinson - activ-l

The New York Times - Dec 22, 2007
http://www.nytimes.com/2007/12/22/washington/22intel.html


9/11 Panel Study Finds That C.I.A. Withheld Tapes

By Mark Mazzetti

Washington - A review of classified documents by former members of the
Sept. 11 commission shows that the panel made repeated and detailed
requests to the Central Intelligence Agency in 2003 and 2004 for
documents and other information about the interrogation of operatives
of Al Qaeda, and were told by a top C.I.A. official that the agency had
"produced or made available for review" everything that had been
requested.

The review was conducted earlier this month after the disclosure that in
November 2005, the C.I.A. destroyed videotapes documenting the
interrogations of two Qaeda operatives.

A seven-page memorandum prepared by Philip D. Zelikow, the panel's
former executive director, concluded that "further investigation is
needed" to determine whether the C.I.A.'s withholding of the tapes from
the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H.
Hamilton and Thomas H. Kean, said their reading of the report had
convinced them that the agency had made a conscious decision to impede
the Sept. 11 commission's inquiry.

Mr. Kean said the panel would provide the memorandum to the federal
prosecutors and congressional investigators who are trying to determine
whether the destruction of the tapes or withholding them from the
courts and the commission was improper.

A C.I.A. spokesman said that the agency had been prepared to give the
Sept. 11 commission the interrogation videotapes, but that commission
staff members never specifically asked for interrogation videos.

The review by Mr. Zelikow does not assert that the commission
specifically asked for videotapes, but it quotes from formal requests
by the commission to the C.I.A. that sought "documents," "reports" and
"information" related to the interrogations.

Mr. Kean, a Republican and a former governor of New Jersey, said of the
agency's decision not to disclose the existence of the videotapes, "I
don't know whether that's illegal or not, but it's certainly wrong."
Mr. Hamilton, a former Democratic congressman from Indiana, said that
the C.I.A. "clearly obstructed" the commission's investigation.

A copy of the memorandum, dated Dec. 13, was obtained by The New York
Times.

Among the statements that the memorandum suggests were misleading was an
assertion made on June 29, 2004, by John E. McLaughlin, the deputy
director of central intelligence, that the C.I.A. "has taken and
completed all reasonable steps necessary to find the documents in its
possession, custody or control responsive" to formal requests by the
commission and "has produced or made available for review" all such
documents.

Both Mr. Kean and Mr. Hamilton expressed anger after it was revealed
this month that the tapes had been destroyed. However, the report by
Mr. Zelikow gives them new evidence to buttress their views about the
C.I.A.'s actions and is likely to put new pressure on the Bush
administration over its handling of the matter. Mr. Zelikow served as
counselor to Secretary of State Condoleezza Rice from 2005 to the end
of 2006.

In an interview on Friday, Mr. McLaughlin said that agency officials had
always been candid with the commission, and that information from the
C.I.A. proved central to their work.

"We weren't playing games with them, and we weren't holding anything
back," he said. The memorandum recounts a December 2003 meeting between
Mr. Kean, Mr. Hamilton and George J. Tenet, then the director of
central intelligence. At the meeting, it says, Mr. Hamilton told Mr.
Tenet that the C.I.A. should provide all relevant documents "even if
the commission had not specifically asked for them."

According to the memorandum, Mr. Tenet responded by alluding to several
documents that he thought would be helpful to the commission, but made
no mention of existing videotapes of interrogations.

The memorandum does not draw any conclusions about whether the
withholding of the videotapes was unlawful, but it notes that federal
law penalizes anyone who "knowingly and willfully" withholds or "covers
up" a "material fact" from a federal inquiry or makes "any materially
false statement" to investigators.

Mark Mansfield, the C.I.A. spokesman, said that the agency had gone to
"great lengths" to meet the commission's requests, and that commission
members had been provided with detailed information obtained from
interrogations of agency detainees.

"Because it was thought the commission could ask about the tapes at some
point, they were not destroyed while the commission was active," Mr.
Mansfield said.

Intelligence officials have said the tapes that were destroyed
documented hundreds of hours of interrogations during 2002 of Abu
Zubaydah and Abd al Rahim al-Nashiri, two Qaeda suspects who were taken
into C.I.A. custody that year.

According to the memorandum from Mr. Zelikow, the commission's interest
in obtaining accounts from Qaeda detainees in C.I.A. custody grew out
of its attempt to reconstruct the events leading up to the Sept. 11
attacks in the United States.

Its requests for documents from the C.I.A. began in June 2003, when it
first sought intelligence reports describing information obtained from
prisoner interrogations, the memorandum said. It later made specific
requests for documents, reports and information related to the
interrogations of specific prisoners, including Abu Zubaydah and Mr.
Nashiri.

Skip to next paragraph Multimedia Graphic Evolution of Interrogation
Tactics Related No Immediate Ruling on Judicial Inquiry (December 22,
2007) Bush Lawyers Discussed Fate of C.I.A.Tapes (December 19, 2007)
Delay Is Sought by Justice Dept. on C.I.A. Inquiry (December 15, 2007)
C.I.A. Chief Cites Agency Lapse on Tapes (December 13, 2007) News
Analysis: C.I.A. Agents Sense Shifting Support for Methods (December
13, 2007) C.I.A. Official in Inquiry Called a 'Hero' (December 10,
2007) Text: Commission Memo (pdf) Blogrunner: Reactions From Around the
WebIn December 2003, the commission staff sought permission to
interview the prisoners themselves, but was permitted instead to give
questions to C.I.A. interrogators, who then posed the questions to the
detainees. The commission concluded its work in June 2004, and in its
final report, it praised several agencies, including the C.I.A., for
their assistance.

Abbe D. Lowell, a veteran Washington lawyer who has defended clients
accused of making false statements and of contempt of Congress, said
the question of whether the agency had broken the law by omitting
mention of the videotapes was "pretty complex," but said he "wouldn't
rule it out."

Because the requests were not subpoenas issued by a court or Congress,
C.I.A. officials could not be held in contempt for failing to respond
fully, Mr. Lowell said. Apart from that, however, it is a crime to make
a false statement "in any matter within the jurisdiction of the
executive, legislative or judicial branch."

The Sept. 11 commission received its authority from both the White
House and Congress.

On Friday, the leaders of the Senate Judiciary Committee sent a letter
to Attorney General Michael B. Mukasey and to Mike McConnell, the
director of national intelligence, asking them to preserve and produce
to the committee all remaining video and audio recordings of "enhanced
interrogations" of detainees in American custody.

Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen
Specter, Republican of Pennsylvania, the letter asked for an extensive
search of the White House, C.I.A. and other intelligence agencies to
determine whether any other recordings existed of interrogation
techniques "including but not limited to waterboarding."

Government officials have said that the videos destroyed in 2005 were
the only recordings of interrogations made by C.I.A. operatives,
although in September government lawyers notified a federal judge in
Virginia that the agency had recently found three audio and video
recordings of detainees.

Intelligence officials have said that those tapes were not made by the
C.I.A., but by foreign intelligence services.