Human Rights First | Law & Security | CIA Videotape Destruction Timeline

On Thursday, December 6, CIA Director General Michael Hayden acknowledged that the agency had destroyed videotapes recording the interrogations of two terrorist suspects by CIA operatives. The tapes captured the use of harsh interrogation techniques. They were destroyed in November 2005, three years after the interrogations occurred, and two years after the government was ordered to turn over tapes of suspects who might offer testimony in defense of Zacarias Moussaoui. A timeline of relevant events follows.

March 28-U.S. forces captured alleged al Qaeda leader Abu Zubaydah in Pakistan and transferred him several days later to a secret detention facility in Thailand.¹ CIA officials interrogated Zubaydah on multiple occasions in 2002, subjecting him to harsh interrogation techniques. Based on one press account, the techniques included stripping Zubaydah naked, raising the air-conditioning so much that he “seemed to turn blue,” and blasting rock music at him.² According to CIA sources, Zubaydah “was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until he begged for mercy and began to cooperate.”³ Another account, also based on CIA sources, adds that Zubaydah was threatened with death, denied medication, and subjected to loud and continuous noise and strong lights.⁴ The interrogations were videotaped.⁵

May 8-Jose Padilla was arrested on a material witness warrant at Chicago’s O-Hare airport. Abu Zubaydah was the primary source for the material witness warrant. Then United States District Judge Michael Mukasey approved the warrant.⁶

Bush administration officials publicly accused Jose Padilla of plotting to detonate a radiological “dirty bomb,” and Bush ordered the indefinite detention of Padilla as an “enemy combatant.” Padilla was held at a military brig in South Carolina for more than three years without charge or trial, and with limited access to an attorney.⁷

Four members of Congress, including House Speaker Nancy Pelosi, were briefed on the CIA’s overseas detention sites and the harsh interrogation techniques being used, including waterboarding.⁸

U.S. forces captured alleged al-Qaeda leader Abd al-Rahim al-Nashiri in Yemen. Al-Nashiri is alleged to have planned the October 2000 bombing of the destroyer Cole in Yemen.⁹ The exact date of his capture and the location of his interrogations are unknown. The interrogations were videotaped.¹⁰

November 27-The 9/11 Commission was set up “to prepare a full and complete account of the circumstances surrounding the September 11, 2001 attacks.”¹¹ The 9/11 Commission was denied access to Khalid Sheikh Mohammed and other prisoners. The CIA provided English-language transcripts of interrogations supposedly held at Guantanamo Bay and represented that no videotapes of such interrogations existed.¹²

CIA general counsel Scott Muller informed a small group of senior lawmakers about the existence of the CIA interrogation videotapes. Government officials say that Muller told the lawmakers that the CIA intended to destroy the tapes.¹³ At some point in 2003, top CIA officials decided to preserve the tapes, reportedly in response to warnings from White House lawyers and lawmakers that destroying the tapes would be unwise and could carry legal risks.¹⁴

The Fourth Circuit directed the District Court in U.S. v. Zacarias Moussaoui (E.D. Va.) (No. 01-455-A), to consider substitutions under the Classified Information Procedures Act (“CIPA”) in lieu of enemy combatant testimony sought by the defendant.¹⁵ In an ensuing CIPA hearing, Judge Leonie M. Brinkema ordered federal prosecutors to determine the existence of any videotapes of detained suspects, including specifically Abu Zubaydah. Several days later, with the permission of Judge Brinkema, the government submitted a declaration to the defense stating that interrogations were not being recorded.¹⁶

October 7-The ACLU filed a Freedom of Information Act (“FOIA”) request demanding the release of information about the U.S. treatment and interrogation of detainees held overseas.¹⁷ A federal judge subsequently ordered the release of documentation pertaining to the treatment of detainees in U.S. custody.¹⁸ The government failed to produce the interrogation tapes in response to the ACLU’s FOIA request.

U.S. television news-magazine 60 Minutes II broke the story regarding the abuse and humiliation of inmates at Abu Ghraib prison in Iraq by a group of U.S. soldiers. The story included photographs depicting the abuse.¹⁹

Then Attorney General John Ashcroft sent 21 referrals of possible violations of federal anti-torture laws by civilian interrogators to the U.S. Attorney for the Eastern District of Virginia. To date, the Justice Department has not brought any indictments based on these referrals.²⁰

July 22-The 9/11 Commission published its final report, citing Khalid Sheikh Mohammed, Ramzi Binalshibh and Abu Zubaydah as primary sources, but without having viewed interrogation tapes.²¹

The detainees in Abdah, et al., v. Bush, et al. (No. 04-1254) requested an order to preserve and maintain evidence and information regarding the torture, mistreatment and abuse of detainees now in U.S. custody at Guantanamo Bay. Justice Department lawyers responded that “there is no evidence of any document destruction in the instant case.” The government has “numerous reasons…for ensuring the preservation of the documents in question.”²²

Senate Intelligence Committee Chairman John Rockefeller wrote to the CIA Inspector General requesting “over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities.” Included was a request for the CIA to provide the Office of General Counsel report on the examination of videotapes and whether they were in compliance with a DOJ legal opinion concerning interrogation. Senator Rockefeller states that the CIA refused to provide this and other documents despite a second request to CIA Director Goss in September 2005.²³

Judge Henry H. Kennedy, Jr. in Abdah, et al., v. Bush, et al. (No. 04-1254) ordered the government to “preserve and maintain all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay, Cuba.”²⁴

October 5-The United States Senate voted 90-9 to support the McCain Amendment to the Department of Defense Appropriations Act of 2006. The McCain Amendment became the Detainee Treatment Act of 2005. The amendment prohibits the “cruel, inhuman, or degrading treatment or punishment” of prisoners, including prisoners at Guantanamo Bay, and provides for “uniform standards” for interrogation.²⁵

November 3-Judge Brinkema issued another order in U.S. v. Zacarias Moussaoui (E.D. Va.) (No. 01-455-A), to determine the existence of any videotapes of detained suspects. A CIA official responded that “the US government does not have any video or audio tapes of the interrogations of…”²⁶

November 22-The federal government indicted Jose Padilla on charges of conspiring to kidnap, murder and injure people abroad.²⁷ Three years after his arrest, Padilla would finally have the chance to test the evidence against him.

November ?-Then CIA director of clandestine operations, Jose A. Rodriguez ordered the destruction of videotapes documenting the interrogations of alleged al-Qaeda leaders Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were destroyed.²⁸

Abu Zubaydah and 13 other “high-value” detainees were transferred from CIA custody to the U.S. detention facility at Guantanamo Bay. At a press conference announcing the transfer, President Bush acknowledged having used an “alternative set of procedures” to interrogate Zubaydah, claiming Zubaydah “had received training on how to resist interrogation.”²⁹

May 14-Jose Padilla’s trial began before a jury in federal district court in Miami, Florida.³⁰ Padilla was convicted of all charges on August 16, 2007.³¹ His sentence is pending.

A CIA attorney notified Justice Department officials that tape recordings did exist that would have been responsive to Judge Brinkema’s 2003 and 2005 orders in U.S. v. Zacarias Moussaoui (E.D. Va.) (No. 01-455-A). The CIA turned over two videotapes and an audiotape to the Moussaoui prosecutors, who viewed and listened to the tapes.³²

Federal prosecutors in U.S. v. Zacarias Moussaoui (E.D. Va.) (No. 01-455-A) reported to Judge Brinkema that the tapes they listened to included no mention of Moussaoui or the September 11 plot. But the letter said nothing about the destroyed Zubaydah tapes, or whether anything on those tapes might have been relevant to the Moussaoui case.³³

Center for Constitutional Rights attorneys for Majid Khan, a detainee at Guantanamo Bay, requested a court order barring the government from destroying evidence of his treatment.³⁴

December 6 - CIA Director General Michael Hayden acknowledged the destruction of videotapes documenting the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Hayden said the recordings were destroyed to protect the identities of the interrogators and because they no longer had intelligence value. Hayden further stated that leaders of the Senate Intelligence Committee had been informed of the agency’s “intention to dispose of the material,” but he did not say when the notification took place.³⁵

December 7-Senator Dianne Feinstein (D-CA) added an amendment to the 2008 intelligence authorization bill that applies the Army Field Manual to all government agencies, including the CIA. The Army Field Manual prohibits specific acts of torture and abuse, including waterboarding, and also authorizes an array of specific interrogation tactics.³⁶ Also on December 7, Presidential spokeswoman Dana Perino said the White House would support Attorney General Michael Mukasey if he decided to investigate.³⁷

December 8-The Justice Department and the CIA’s internal watchdog announced a joint inquiry into the CIA’s destruction of the interrogation videotapes to determine whether a full investigation is warranted. “I welcome this inquiry and the CIA will cooperate fully,” said CIA Director Hayden. “I welcome it as an opportunity to address questions that have arisen over the destruction back in 2005 of videotapes.”³⁸ The House and Senate Intelligence Committees are also launching their own inquiries.

December 9 – The New York Times reported that its review of military tribunal records reveals that five lower-level detainees at Guantanamo Bay were initially charged with offenses based on information provided by or related to Abu Zubaydah.”³⁹

December 10-Hayden will testify before Congress regarding the CIA’s destruction of the interrogation videotapes.⁴⁰

1 Verbatim Transcript of Combatant status Review Tribunal Hearing for ISN 10016 [Abu Zubaydah], 23, March 27, 2007, available at http://www.defenselink.mil/news/transcript_ISN10016.pdf;
Katherine Eban, “Rorschach and Awe,” Vanity Fair, July 17, 2007, available at http://www.vanityfair.com/politics/features/2007/07/torture200707.

2 David Johnston, “At a Secret Interrogation, Dispute Flared Over Tactics,” N.Y. Times, Sept. 10, 2006, A1 available at http://www.nytimes.com/2006/09/10/
washington/10detain.html.

3 Brian Ross, “Sources Tell ABC News Top al Qaeda Figures Held in CIA Secret Prisons,” ABC News, Dec. 5, 2005, available at http://abcnews.go.com/WNT/
Investigation/story?id=1375123.

4 Ron Susskind, The One Percent doctrine, 115 (2006). See also Katherine Eban, “Rorschach and Awe,” Vanity Fair, July 17, 2007, available at http://www.vanityfair.com/politics/features/2007/07/torture200707 ;
Jane Mayer, “The Black Sites,” The New Yorker, August 13, 2007, available at http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer/ (reporting that Zubaydah informed the ICRC that he had been placed in a “dog box” – a small cage – for lengthy periods of time).

5 Mark Mazzetti and David Johnson, “Inquiry Begins Into Destruction of Tapes,” New York Times, December 9, 2007, available at http://www.nytimes.com/2007/12/09/washington/
09zubaydah.html?pagewanted=1&ref=world.

6 Phil Hirschkorn, “Judge Allows Lawyers to Visit ‘Enemy Combatant,’” CNN, March 11, 2003, available at http://www.cnn.com/2003/LAW/03/11/padilla.decision/index.html.

7 Deborah Sontag, “In Padilla Wiretaps, Murky View of ‘Jihad’ Case,” New York Times, January 4, 2007, available at http://www.nytimes.com/2007/01/04/washington/
04padilla.html?pagewanted=all.

8 Joby Warrick and Dan Eggen, “Hill Briefed on Waterboarding in 2002: In Meetings, Spy Panels’ Chiefs Did Not Protest, Officials Say,” Washington Post, December 9, 2007, available at http://www.washingtonpost.com/wp-dyn/content/
article/2007/12/08/AR2007120801664.html.

9 “Suspected Qaeda Chief Cooperating,” CBS News, November 22, 2002, available at http://www.cbsnews.com/stories/2002/11/17/attack/main529656.shtml.

10 Mark Mazzetti and David Johnson, “Inquiry Begins Into Destruction of Tapes,” New York Times, December 9, 2007, available at http://www.nytimes.com/2007/12/09/washington/
09zubaydah.html?pagewanted=1&ref=world.

11 The National Commission on Terrorist Attacks Upon the United States, November 27, 2007, available at
http://www.9-11commission.gov/.

12 “The 9/11 Commission Report,” 146, available at http://www.gpoaccess.gov/911/.

13 Mark Mazzetti, “C.I.A. Was Urged to Keep Interrogation Videotapes,” New York Times, December 8, 2007, available at http://www.nytimes.com/2007/12/08/washington/08intel.html?ref=world.

14 Mark Mazzetti, “C.I.A. Was Urged to Keep Interrogation Videotapes,” New York Times, December 8, 2007, available at http://www.nytimes.com/2007/12/08/washington/08intel.html?ref=world.

15 Government’s Position Regarding the Court-Ordered Deposition, p. 1, U.S. v. Moussaoui (E.D. Va. July 14, 2003) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss71403pnodep.pdf (accessed December 10, 2007).

16 October 25, 2007, letter to Hon. Karen Williams and Hon. Leonie Brinkema from U.S. Attorney Chuck Rosenberg and Assistant United States Attorneys, David Novak and David Raskin, U.S. v. Zacarias Moussaoui, (docket 01-455-A); Jerry Markon, “Government Secrecy May Lead to New Trial in Va. Terrorism Case,” Washington Post, November 21, 2007, available at http://www.washingtonpost.com/wp-dyn/content
/article/2007/11/20/AR2007112001913.html.

17 ACLU, “Government Documents on Torture Freedom of Information Act,” available at http://www.aclu.org/intlhumanrights/gen/13794res20050429.html.

18 ACLU v. Department of Defense, Opinion and Order Denying Application by CIA for Stay of FOIA Obligation to Search and Review

20 “ACLU Calls for Independent Prosecutor to Investigate Destruction of CIA Interrogation Tapes,” ACLU, December 7, 2007, available at http://www.aclu.org/safefree/general/33044prs20071207.html.

21 “The 9/11 Commission Report,” 146, available at http://www.gpoaccess.gov/911/.

22 Emergency Motion for Inquiry into Respondents’ Compliance with Document Preservation Order,Abdah, et al., v. Bush, et al. (No. 04-1254), available at http://www.scotusblog.com/wp/wp-content/uploads/
2007/12/abdah-motion-for-inquiry-12-9-07.pdf.

23 “Chairman Rockefeller Says Intel Committee Has Begun Investigation into CIA Detainee Tapes,” December 7, 2007, available at http://www.senate.gov/~rockefeller/news/2007/pr120707a.html.

24 Emergency Motion for Inquiry into Respondents’ Compliance with Document Preservation Order,Abdah, et al., v. Bush, et al. (No. 04-1254), available at http://www.scotusblog.com/wp/wp-content/uploads/
2007/12/abdah-motion-for-inquiry-12-9-07.pdf.

25 Detainee Treatment Act of 2005, 42 U.S.C.A. §2000dd (2006).

26 October 25, 2007, letter to Hon. Karen Williams and Hon. Leonie Brinkema from U.S. Attorney Chuck Rosenberg and Assistant United States Attorneys, David Novak and David Raskin, U.S. v. Zacarias Moussaoui, (docket 01-455-A).

27 David Stout, “U.S. Indicts Padilla After 3 Years in Pentagon Custody,” New York Times, November 22, 2005, available at http://www.nytimes.com/2005/11/22/politics/22cnd-terror.html.

28 Mark Mazzetti and David Johnson, “Inquiry Begins Into Destruction of Tapes,” New York Times, December 9, 2007, available at http://www.nytimes.com/2007/12/09/washington/
09zubaydah.html?pagewanted=1&ref=world.

29 President Discusses Creation of Military Commissions to Try Suspected Terrorists, September 6, 2006, available at http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html.

30 Abby Goodnough, “Mysteries, Legal and Sartorial, at Padilla Trial,” New York Times, July 8, 2007, available at http://www.nytimes.com/2007/07/08/us/nationalspecial3/08padilla.html

31 Associated Press, “Padilla Convicted on Terrorism Support Charges: One-Time Dirty Bomb Supect, 2 Others Found Guilty of Aiding Extremists,” MSNBC News, August 16, 2007, available at http://www.msnbc.msn.com/id/20298703/.

32 October 25, 2007, letter to Hon. Karen Williams and Hon. Leonie Brinkema from U.S. Attorney Chuck Rosenberg and Assistant United States Attorneys, David Novak and David Raskin, U.S. v. Zacarias Moussaoui, (docket 01-455-A).

33 October 25, 2007, letter to Hon. Karen Williams and Hon. Leonie Brinkema from U.S. Attorney Chuck Rosenberg and Assistant United States Attorneys, David Novak and David Raskin, U.S. v. Zacarias Moussaoui, (docket 01-455-A).

34 Carol Rosenberg, “Filing Asks to Preserve CIA Captivity Evidence,” Miami Herald, December 8, 2007, available at http://www.miamiherald.com/news/nation/story/337591.html.

35 Mark Mazzetti, “C.I.A. Was Urged to Keep Interrogation Videotapes,” New York Times, December 8, 2007, available at http://www.nytimes.com/2007/12/08/washington/08intel.html?ref=world.

36 Scott Shane, “Lawmakers Back Limits on Interrogation Tactics,” New York Times, December 7, 2007, available at http://www.nytimes.com/2007/12/07/washington/07interrogate.html.

39 Mark Mazzetti and David Johnson, “Inquiry Begins Into Destruction of Tapes,” New York Times, December 9, 2007, available at http://www.nytimes.com/2007/12/09/washington
/09zubaydah.html?pagewanted=1&ref=world.

40 Reuters, “CIA Director to Testify about Destroyed Tapes,” Washington Post, December, 9, 2007, available at http://www.washingtonpost.com/
wp-dyn/content/article/2007/12/09/AR2007120900674.html.

Security Detainees

CIA Videotape Destruction Timeline