[Congressional Record (Bound Edition), Volume 153 (2007), Part 25]
[Senate]
[Pages 33508-33509]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   GOVERNMENT DESTRUCTION OF EVIDENCE

  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 
included.
  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 
Commission.
  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 
     recordings.

  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.

[[Page 33509]]

  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.

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