Congress is appropriately indignant about the revelation that the CIA destroyed videotapes of interrogation sessions at which suspected terrorists were subjected to “enhanced” techniques that may have included the simulated drowning known as waterboarding. That outrage needs to be channeled into legislation that would prevent the agency from engaging in the sort of behavior captured on those tapes.
Last week, CIA Director Michael V. Hayden told agency employees that the tapes of interrogations conducted in 2002 were destroyed three years later in part because “were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from Al Qaeda and its sympathizers.”
Others suspect a less noble motive: protecting the interrogators from possible legal consequences. One of the detainees was Abu Zubaydah, an Al Qaeda operative linked to 9/11 who is believed to have been subjected to waterboarding. Rightly, the Justice Department and the CIA’s inspector general have announced a joint investigation. It must be speedy and searching if the administration hopes to quiet calls for the appointment of a special prosecutor.
Meanwhile, Congress will be demanding answers from Hayden and other officials. But it is equally important that the legislative branch move to make illegal the sort of conduct apparently depicted on the tapes. By coincidence, the New York Times reported on the tapes’ destruction in the same week that the House and Senate intelligence committees voted to require the CIA to abide by the same interrogation rules that bind the armed services. Congress as a whole should approve that change despite the threat of a presidential veto.
In defending enhanced interrogation tactics, President Bush has tried to have it both ways, avowing that “we do not torture” while exempting CIA interrogators from the Army Field Manual’s ban on waterboarding, sleep deprivation, extreme temperatures and other controversial techniques. To its discredit, Congress endorsed this loophole when it passed the Detainee Treatment Act of 2005.
That law also contains more general language prohibiting the CIA from engaging in “cruel, inhuman or degrading treatment or punishment.” Some officials have indicated that its enactment has led to an end to waterboarding, but other techniques banned by the field manual are apparently still legal. They shouldn’t be. The CIA shouldn’t have done away with its tapes. Congress should do away with the double standard that allows the agency to flout standards imposed on the military.