The CIA and the Archives
Did tape destruction violate records law?
A top official at the National Archives has asked the CIA to explain the destruction of hundreds of hours of videotapes showing the use of harsh interrogation techniques against Al Qaeda suspects, according to a copy of the letter obtained by NEWSWEEK.
Written by Paul M. Wester Jr., director of the Archives' modern records program, the letter asks for a response within 30 days. It notes that under the Federal Records Act, "no federal records may be destroyed" by agencies without first getting approval from the Archives to dispose of the material. "We are unaware of any CIA disposition authority that covers these records," Wester wrote.
In addition, the Archives official notes that under separate federal rules enforced by his agency, no material requested under the Freedom of Information Act may be destroyed either. If, for example, a news organization or any other person had made a Freedom of Information Act request to see the tapes, the regulations "precluded their destruction until resolution" of the case, Wester wrote. As it turned out, there was at least one FOIA request to see the tapes. After the CIA disclosed that the tapes had been destroyed on Dec. 6, lawyers for the American Civil Liberties Union said that they had long ago requested that the CIA release all records or other material—including videotapes—of interrogations of terror suspects.
"We have received the letter and we'll certainly respond," CIA spokesman Mark Mansfield said Friday. "The bottom line is that these videotapes were not federal records as defined by the Federal Records Act." He pointed to the original statement by CIA director Michael Hayden, in which Hayden said that the videotapes had been destroyed only after the agency determined they were no longer of intelligence value and "not relevant to any internal, legislative or judicial inquiries."
The CIA's destruction of the tapes is already under investigation by the Justice Department and the House and Senate Intelligence Committees. Those probes are exploring whether the agency obstructed justice when it destroyed the tapes. Furthermore, the congressional committees want to know if the CIA failed to properly notify Capitol Hill.
The letter from the Archives appears to raise questions about how closely CIA lawyers reviewed the decision to destroy the tapes. Separately, Rep. Henry Waxman, chairman of the House Government Reform Committee, wrote National Archivist Allen Weinstein his own letter last week, asking whether the CIA's tape destruction violated the federal records law.
The Federal Records Act cited in Wester's letter was passed by Congress in 1950 and generally requires the preservation of all official government records. The law defines records broadly as all material "regardless of physical form or characteristics" that is "made or received" by an agency and which constitutes "evidence of the organization, functions, policies, decisions, procedures, operations or activities of the government or because of the informational value of data in them."
Mansfield did not explain why the CIA didn't find the destroyed videotapes to be "records" as defined under the law. But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.
Susan Cooper, a spokeswoman for the Archives, said the Archives have the authority to make referrals to the Justice Department when it determines that an agency has violated the records act, although it has not done so in recent years. Justice can then impose civil fines on the individuals involved in the unauthorized destruction of records, she said.
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Michael Isikoff has been an award-winning investigative correspondent for Newsweek since 2004. He has written extensively on the U.S. government's war on terrorism, the conflicts in Iraq and Afghanistan, presidential politics and other national issues. His book, "Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War," co-written with David Corn, was an instant New York Times best-seller when it was published in September, 2006. The book was hailed by the New York Times Book Review as "fascinating reading" and "the most comprehensive account of the White House's political machinations" in the run up to the war in Iraq. Since January 2009, Isikoff has been an MSNBC contributor, making regular appearances on the Rachel Maddow Show and Hardball w/ Chris Matthews.
Ever since the events of September 11, Isikoff has broken repeated stories about the U.S. government's war on terror and won numerous journalism awards. His blog "DeClassified: Investigative Reporting in Real Time," which appears regularly on Newsweek's Web site and is written with MarkHosenball, has become a must-read for senior U.S. intelligence officials. Isikoff and Hosenball won the 2005 award from the Society of Professional Journalists for best investigative reporting online.
Isikoff's June 2002 Newsweek cover story on U.S. intelligence failures that preceded the 9-11 terror attacks, along with a series of related articles, was honored with the Investigative Reporters and Editors top prize for investigative reporting in magazine journalism. He was honored, along with a team of Newsweek reporters, by the Society of Professional Journalists for coverage of the Abu Ghraib scandal. For that coverage, Isikoff obtained exclusive internal White House, Justice Department and State Department memos showing how decisions made at the highest levels of the Bush administration led to abuses in the interrogation of terror suspects. Isikoff was also part of a reporting team that earned Newsweek the National Magazine Award for General Excellence in 2002, the highest award in magazine journalism, for their coverage of the aftermath of the September 11 terror attacks.
Isikoff's exclusive reporting on the Monica Lewinsky scandal gained him national attention in 1998, including profiles in The New York Times and The Washington Post and a guest appearance on "Late Show with David Letterman." His coverage of the events that lead to President Bill Clinton's impeachment earned Newsweek the prestigious National Magazine Award in the Reporting category in 1999. Isikoff's reporting also won the National Headliner Award, the Edgar A. Poe Award presented by the White House Correspondents Association and the Gerald R. Ford Journalism Prize for Reporting on the Presidency. In 2001, Isikoff was named on a list of "most influential journalists" in the nation's capital by Washingtonian magazine.
Isikoff is the author of "Uncovering Clinton: A Reporter's Story," a book that chronicled his own reporting of the Lewinsky story and was hailed by a critic for The Washington Post-Los Angeles Times news service as "the absolutely essential narrative of the scandal with revelations that no one would have thought possible." The book, also a New York Times bestseller, was named Best Non-Fiction Book of 1999 by the Book of the Month Club.
Isikoff came to Newsweek from The Washington Post, where he had been a reporter since September 1981. There he covered the Justice Department and the Persian Gulf War, reported on international drug operations in Latin America and worked on the Post's financial news desk. Isikoff graduated from Washington University with a B.A. in 1974 and received a Masters in Journalism from Northwestern University's Medill School of Journalism in 1976.
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