Harman Warned against Destroying Tapes in 2003

The CIA’s initial defense for destroying the videotapes showing interrogations of Al Qaeda detainees was that they’d briefed members of Congress about their intention to do this long ago.

To which, Rep. Jane Harman (D-CA), the former chair of the House intelligence committee responded: yes, we were told, and I told them not to do it. She said that she’d made that explicit in a letter to the CIA’s general counsel in February of 2003, but that the letter was classified. She asked the CIA to declassify it.

Well, the CIA declassified the letter and today she released it (I’ve posted it below in full). Here’s the relevant excerpt:

You discussed [in a briefing the previous week] the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

The reply from the CIA’s General Counsel Scott Muller later that month, also posted below, did not address this issue.

You can see a scan of Harman’s letter here (pdf).

February 10, 2003

Mr. Scott Muller
General Counsel
Central Intelligence Agency
Washington, DC 20505

Dear Mr. Muller:

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment. I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions. At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

I look forward to your response.

Sincerely,

JANE HARMAN

And Muller’s response:

28 February 2003

The Honorable Jane Harman

Ranking Democratic Member

Permanent Select Committee on Intelligence

House of Representatives

Washington, DC 20515

Dear Ms. Harman:

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described. As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

I enjoyed meeting you, albeit briefly, and I look forward to seeing you again.

Sincerely,

Scott W. Muller