[Congressional Record: December 7, 2007 (Senate)]
[Page S15026]


  Mr. DURBIN. Mr. President, this morning, newspapers across America 
reported that the Central Intelligence Agency and other intelligence 
agencies have destroyed evidence, videotaped evidence of the 
interrogation of prisoners. It is a startling disclosure. The United 
States of America, a nation where the rule of law is venerated, has now 
been in the business of destroying evidence, evidence of a very 
sensitive nature, evidence which clearly should have been protected for 
legal and historic purposes.
  The late historian Arthur Schlesinger said this about this 
administration's legal defense of torture:

       No position taken has done more damage to the American 
     reputation in the world--ever.

  We have been tested since 9/11 as a nation, tested in our resolve to 
protect America, but also tested in our commitment to the values we 
hold dear.
  A time of war and a time of insecurity is a time of the greatest 
testing. Many Presidents, even great Presidents in the past, have 
failed that test: President Abraham Lincoln during the Civil War 
suspending habeas; during World War I, serious questions were raised 
about the patriotism of those who did not agree with our Government; 
during World War II, under the administration of perhaps our greatest 
modern President, Franklin Roosevelt, Japanese internment camps that 
became a national embarrassment; during the Cold War, our enemies list 
and the McCarthy hearings; all things that we look back on now and 
realize do not reflect well on the United States and certainly do not 
reflect our values.
  Now, this administration, this war on terror, this treatment of 
prisoners and detainees, it comes to our attention almost on a weekly 
basis that, sadly, some have crossed the line. Every week there is a 
new revelation about how the administration has engaged in activity 
that is not consistent with American laws or values when it comes to 
the issue of torture.
  In this morning's paper, CIA officials disclosed they destroyed 
videotapes of detainees being subjected to so-called enhanced 
interrogation techniques. We do not know what those videotapes 
  There was a period of time when the Bush administration had decided 
to cast away the international standards of conduct, the Geneva 
Conventions that we have been held to and proudly displayed for 
decades. This administration redefined torture. Through a memo that has 
now been made public, we know they reached extremes, which eventually 
even they had to repudiate.
  The CIA has also reportedly withheld information about these 
videotapes from a Federal court and from the bipartisan 9/11 
  Today I am sending a letter to Attorney General Michael Mukasey 
calling on him to investigate whether CIA officials who covered up the 
existence of these videotapes violated the law.
  In a statement yesterday, GEN Michael Hayden, the CIA Director, 
acknowledged the tapes were destroyed, and stated:

       In 2002, during the initial stage of our terrorist 
     detention program, CIA videotaped interrogations, and 
     destroyed the tapes in 2005.

  The New York Times reported today that:

       The tapes were destroyed in part because officers were 
     concerned that video showing harsh interrogation methods 
     could expose agency officials to legal risks, several 
     officials said.

  Now, the defense of the CIA is that they wanted to protect the 
identity of those CIA employees who were engaged in the interrogation. 
That is not a credible defense. We know that it is possible and, in 
fact, easy to cover the identity and faces of those who were involved 
on any videotape. Something more was involved.
  The CIA apparently withheld information about the existence of these 
videotapes from official proceedings, including the bipartisan 
Hamilton-Kean 9/11 Commission and a Federal court. According to Philip 
Zelikow, the Executive Director of the 9/11 Commission and formerly a 
high-ranking official in the Bush administration:

       The Commission did formally request material of this kind 
     from all relevant agencies, and the Commission was assured 
     that we had received all of the material responsive to our 
     request. No tapes were acknowledged or turned over, nor was 
     the commission provided with any transcripts prepared from 

  CIA attorneys told the Federal court hearing the case of Zacarias 
Moussaoui that videotapes of detainee interrogations did not exist. 
This was a statement by our Government to a court involved a very 
sensitive and important case.
  The Justice Department has now acknowledged in a letter to the court 
that this was not true. Courts of America were misled by the Justice 
Department about the existence of this evidence.
  CIA Director Hayden asserts the videotapes were destroyed ``in line 
with the law.'' But listen to what the Federal obstruction of justice 
statute says:

       Whoever corruptly alters, destroys, mutilates, or conceals 
     a record, document, or other object, or attempts to do so, 
     with the intent to impair the object's integrity or 
     availability for use in an official proceeding; or otherwise 
     obstructs, influences, or impedes any official proceeding, or 
     attempts to do so, shall be fined under this title or 
     imprisoned not more than 20 years, or both.

  That is what the Federal criminal statute says. It is not my role or 
Mr. Hayden's role to determine whether the law was violated. That is 
the responsibility of the Department of Justice. That is the 
responsibility of the Attorney General, Michael Mukasey.
  As Mr. Zelikow said:

       The executive branch and Congress need to decide how much 
     they care about this question. If they want to get to the 
     bottom of it, it's pretty easy for people to dig up the 
     relevant records and answer the questions that either 
     officials of the executive branch or the Congress could pose.

  This is the first real test of Attorney General Michael Mukasey. I 
hope he will do the right thing.
  What is at stake goes to the heart of the rule of law and justice in 
America. If our Government can destroy evidence, can misrepresent to 
our courts whether that evidence ever existed, if it can attempt to 
cover up wrongdoing, that goes way beyond the standards of justice and 
the values of America.
  This disclosure of the destruction of those videotapes goes to the 
heart of who we are as a people. I do not know what was on those tapes. 
It was clearly something very troubling or they would not have been 
destroyed. I do not even know if it was incriminating, but we have a 
right to know. In America, everyone is held accountable, including 
officials at the highest levels of our Government.
  It is time for this Department of Justice to turn the page from an 
era when we were engaged in a new definition of torture, a new 
definition of whether the Geneva Conventions were applicable, and bring 
us back into the rule of law, into those standards of conduct which 
have made America proud for so many generations.
  Today I will be sending a letter to Attorney General Mukasey calling 
for an official investigation of whether there was destruction of 
evidence and obstruction of justice in the destruction of those 
videotapes on the interrogation of detainees. This is not an issue that 
can be ignored.


[Congressional Record: December 7, 2007 (Senate)]
[Page S15027-S15028]                        

                      THE DESTRUCTION OF CIA TAPES

  Mr. KENNEDY. Mr. President, the torture debate took another deeply 
troubling turn yesterday. The Nation learned the CIA had destroyed 
videotapes of its employees in the act of using torture or other harsh 
interrogation techniques on detainees.
  Those tapes were not shown to Congress. They were not shown to any 
court. They were not shown to the bipartisan 9-11 Commission. Instead, 
they were destroyed.
  What would cause the CIA to take this action? The answer is obvious--
cover up. The agency was desperate to cover up damning evidence of 
their practices. In a letter to agency employees yesterday, CIA 
Director Michael Hayden claimed that the tapes were a security risk 
because they might someday ``leak'' and thereby identify the CIA 
employees who engaged in these practices.
  But that excuse won't wash. I am second to no one in wanting to 
protect the brave men and women of the CIA. But how is it possible that 
the director of the CIA has so little faith in his own agency?
  Does the director believe the CIA's buildings are not secure?
  Would it be beyond the agency's technical expertise to preserve the 
tapes while hiding the identity of its employees?
  Does the director believe that the CIA's employees cannot be trusted 
not to leak materials that might harm the agency?
  Or does he know that the interrogation techniques are so abhorrent 
that they could not remain unknown much longer?
  It is particularly difficult to take the director's explanation at 
face value when the news that these CIA tapes were destroyed came the 
very same week that we learned that as many as 10 million White House 
emails have not been preserved, despite a law that requires their 
retention. At the same time, the President continued to insist that we 
grant immunity to the phone companies for their role in the illegal 
wiretapping of American citizens.
  The pattern is unmistakable. The past 6 years, the Bush 
administration has run roughshod over our ideals and the rule of law. 
For 4 of those 6 years, the Republican Congress did little to hold the 
administration accountable. Now, when the new Democratic Congress is 
demanding answers, the administration is feverishly covering up its 
tracks. We haven't seen anything like this since the 18\1/2\-minute gap 
in the tapes of President Richard Nixon.
  These efforts are wrong, and they must be stopped. I and other 
concerned Senators will today call upon Attorney General Mukasey to 
immediately begin an investigation into whether the CIA's handling and 
destruction of these tapes violated the law.
  We also must redouble our efforts to make sure that future 
interrogations by the CIA conform to our laws and values. No part of 
our Government should engage in practices that are so horrific that we 
cannot bear to see them on tape. To that end, I introduced legislation 
to require that all Government agencies, including the CIA, follow the 
standards of the Army Field Manual. Language that would take that 
important step was recently included in the conference report on the 
Intelligence authorization bill, and we must act to adopt it as soon as 
  As founder John Adams said, our Nation is ``a Nation of laws, not 
men.'' That basic principle is at risk today from an administration 
that is engaging in a coverup--systematically destroying records, 
commuting sentences, and stonewalling congressional investigations. The 
CIA's role in this coverup is only the latest reminder that Congress 
must fight harder to prevent this administration from making a mockery 
of the rule of law, and to preserve the right of the American people to 
know what the Government has been doing in their name.
  Mr. OBAMA. Mr. President, I wish to express my serious concern over 
the Central Intelligence Agency's confirmation that videotapes 
depicting brutal interrogation techniques were destroyed.
  First, it is important that we note the broader context of this 
debate. The United States of America is a nation born out of a struggle 
against tyranny, and our founding legal document asserts that the rule 
of law applies to all men and women, and all branches and agencies of 
government. We are not a perfect Nation, but our national greatness is 
marked by our ability to rise above our imperfections through our 
allegiance to our values and to the rule of law. Time and again, 
America has triumphed because of the contrast we draw to tyranny. We 
are a nation that set captives free, shut down torture chambers, and 
extended freedom and international law to more of humanity.
  Now, we are engaged in a new kind of conflict. And the question that 
we have faced since September 11, 2001, is how we are going to respond 
to the shadowy, stateless, terrorist enemies of the 21st century.
  Tragically, the Bush administration has too often chosen to respond 
to this enemy by abandoning our values and ignoring laws that it deems 
inconvenient. So we have seen excessive secrecy, indefinite detention, 
warrantless wire-tapping, and `enhanced interrogation techniques' like 
simulated drowning that qualify as torture through any careful measure 
of the law or appeal to human decency. For each of these new policies, 
we have seen dubious legal reasoning that does not stand up to the 
harsh light of review or the sound judgment of our Constitution.
  Yesterday, we learned that in November 2005, the CIA destroyed 
videotapes of its interrogations of two prominent al-Qaida suspects, 
including a close Osama bin Laden associate Abu Zubayadah. Media 
reports suggest that these videotapes depict brutal interrogation 
techniques, and could certainly be relevant to ongoing investigations 
and inquiries. Furthermore, these videotapes were not provided to the 
9/11 Commission, which made a broad set of requests for classified 
documents--including interrogation tapes and transcripts--that would 
have included information about the 9/11 attacks.
  The CIA has argued that these tapes needed to be destroyed to protect 
the identities of the interrogators. Our government must go to any 
length necessary to protect the identities of those

[[Page S15028]]

who serve in a covert capacity. But the CIA keeps scores of classified 
material--including videotapes--while protecting the identities of its 
agents. This raises serious questions about whether the tapes were 
destroyed to protect the nature of the interrogation, rather than the 
identity of the interrogator.
  This incident deserves further congressional oversight and inquiry--
neither the CIA nor this interrogation program is immune to our laws. 
This is yet another chapter in a dark period in our constitutional 
history. Now, it is time to turn the page. That is why I was heartened 
to learn that the House and Senate Intelligence Committees have reached 
agreement on including a requirement in the Intelligence authorization 
bill that subjects CIA interrogators to the guidelines on interrogation 
included in the U.S. Army Field Manual. It would be a grave 
disappointment--though not surprising--if this important step forward 
were subject to a veto threat from the President. That must not deter 
the Congress from moving forward. We have a responsibility to act.
  We should not have a separate interrogation program whose methods are 
so abhorrent that they cannot stand up to scrutiny. We should not have 
to find ways of ignoring or averting our own laws to defend our 
country. Torture does not work. Torture violates our laws. And torture 
sets back the standing and moral leadership that America needs to 
triumph in this global struggle. Our values and laws are not 
inconvenient obstacles to the defense of our national security--they 
can and must be a guiding force in our response to terrorism.
  Today is Pearl Harbor day--a date when our Nation was subjected to a 
terrible surprise attack, and when a generation of Americans answered 
the call to defend our security and extend the cause of freedom. More 
than 6 years after 9/11, we are still struggling to define our own 
response to our generation's terrible surprise attack. As we defend 
America, let us learn the painful lessons of these last few years, and 
enlist our values and our Constitution in this first great struggle of 
the 21st century.