Waffling on waterboarding

The laughable notion that waterboarding and other “enhanced interrogation techniques” don’t constitute torture is belied by the fact that the CIA in 2005 destroyed dozens of videotapes recording the interrogation of two suspected terrorists. Now a special federal prosecutor has declined to pursue criminal charges in connection with the tapes’ destruction.

John Durham, the prosecutor, may still decide to charge CIA officials with lying, and he also is probing whether the interrogations themselves violated Justice Department guidelines. But his decision not to file obstruction of justice charges over the destruction of the tapes will make it more difficult to learn the facts about this inexcusable cover-up.

The tapes recorded the interrogations of Abu Zubaydah and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. Although the agency was under a court order to release documents relating to the abuse of prisoners (or explain why they couldn’t be produced), the tapes were destroyed. An e-mail obtained by the American Civil Liberties Union quotes Jose A. Rodriguez Jr., then the head of the CIA’s clandestine service, expressing fear that if the images on the tapes were publicized “out of context, they would make us look terrible.” (It’s hard to imagine what “context” would make waterboarding acceptable.)

Presumably Durham concluded that fear of embarrassment, rather than an attempt to thwart a criminal investigation, was the motive for the tapes’ destruction. Another factor may have been assertions that CIA lawyers approved the destruction. Or perhaps Durham thought it would be prohibitively difficult to prove that the agency broke the law. Not for the first time, officials who violated civilized standards are the beneficiaries of this nation’s exacting standards for criminal liability.

Even if Durham was correct that a case would not be winnable, the fact remains that destruction of the tapes obliterated evidence that would be valuable not only to Congress but also to Durham in his investigation of whether interrogators flouted the (minimal) standards established by the Justice Department. Jay S. Bybee, one of the authors of the so-called torture memos, told Congress earlier this year that the memo authorizing the waterboarding of Zubaydah was conditioned on a promise that there would be no “substantial repetition.” Yet, according to the CIA’s inspector general, Zubaydah was waterboarded 83 times.

Given Durham’s decision not to prosecute, Congress should determine to its own satisfaction how the decision to destroy the tapes evolved. Meanwhile, Durham should determine whether the waterboarding of Zubaydah violated the law as interpreted by the Justice Department. Outrageous as the destruction of the tapes was, it pales in comparison to the behavior they recorded.