Warner requests copy of report on Trump CIA pick’s role in destroyed tapes

The top Democrat on the Senate Intelligence Committee is requesting a copy of a 2010 Justice Department report on the investigation into the destruction of videotapes documenting a pair of brutal CIA interrogations — an incident in which President Trump’s pick to run the agency was involved.

The “Durham report” — named after John Durham, the special prosecutor assigned to the case — did not recommend charges for Deputy Director Gina Haspel. But her role in the episode has since become a hot-button issue as she seeks confirmation to lead the spy agency.

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In a brief letter to Attorney General Jeff Sessions sent Tuesday, Sen. Mark Warner (D-Va.) argues that because a recently declassified internal review of Haspel’s conduct “relies heavily” on the conclusions reached by Durham, access to the full report would be “helpful to understand Ms. Haspel’s role.”

The letter, obtained by The Hill, is not signed by committee Chairman Richard Burr (R-N.C.).

The Justice Department provided no details behind Durham’s decision not to bring criminal charges against the officials involved, frustrating civil liberties advocates who said the destruction of the tapes constituted obstruction of justice.

The tapes documented the interrogations of two CIA detainees at a “black site” prison in Thailand, which Haspel herself briefly ran. One of those detainees, Abu Zubaydah, was waterboarded more than 80 times prior to Haspel’s arrival. USS Cole bombing suspect Abd al-Rahim al-Nashiri was also waterboarded while at the prison, three times after Haspel was sent to run the compound.

In 2005, Haspel drafted the cable ordering the destruction of videotapes documenting the interrogations of the two men, amidst growing scrutiny of the agency’s detention and interrogation program. The decision was made by Jose Rodriguez, then head of the agency’s clandestine service — but Haspel, at the time his chief of staff, has been reported as having strongly advocated for the choice.

In 2011, after the conclusion of the Durham review into the matter, then-Deputy Director Michael Morell undertook an internal disciplinary review of both Haspel and Rodriguez that found no fault with Haspel.

Haspel, Morrell said, had just been following orders — a conclusion he appears to base on Durham’s investigation.

“Although there is no ‘good soldier’ defense in the case of an act that violates the law or Agency regulations, the Special Prosecutor evidently found no prosecutable offense, nor did I find a violation of Agency regulations,” Morell wrote.

“I have concluded that she acted appropriately in her role as Mr. Rodriguez’s chief of staff, including in her efforts to press for and facilitate a resolution of the matter, as well as in her drafting of the cable that authorized the destruction of the tapes,” Morell wrote. “She drafted the cable on the direct orders of Mr. Rodriguez; she did not release that cable. It was not her decision to destroy the tapes; it was Mr. Rodriguez’s.”

Morell added that Haspel believed, “incorrectly, as it turned out,” that Rodriguez was going to obtain approval to destroy the tapes from then-CIA Director Porter Goss before sending out the cable ordering the destruction of the tapes.

The CIA on Friday declassified that memo.

The files from Durham’s investigation have never been made public or given to Congress.

According to Morell’s 2015 book, Durham decided against bringing charges “as Rodriguez has been told he had the legal authority to destroy the tapes. Durham concluded, however, that such legal authority had not existed and that Agency lawyers had erred in their legal judgment.” 

Warner does not ask for the Justice Department’s report of Durham’s inquiry into the 2002 and 2003 deaths of a prisoner in Afghanistan and another in Iraq, completed in 2012. That inquiry also did not result in criminal charges, another decision that left some torture experts baffled.

Haspel’s role in the agency’s now-defunct detention and interrogation program has been a point of fierce scrutiny in her confirmation, but it is her role in the destruction of the videotapes that has drawn the most concern from lawmakers on Capitol Hill.

According to the Morell memo and internal emails released as part of a Freedom of Information Act case at the time, Rodriguez was concerned that the videotapes might leak, arguing that “the heat” officials would face over the destruction “is nothing compared to what it would be if the tapes ever got into the public domain.”

The tapes, he said, “out of context, they would make us look terrible; it would be ‘devastating’ to us.”

He feared that if the tapes leaked, it would cause the same kind of international uproar raised by the publication of graphic photos of prisoner abuse at the Abu Ghraib prison in Iraq the year before.

Although they are illegal now, the techniques used on the two detainees in the videotapes — such as waterboarding — were authorized by the Justice Department in the days after the Sept. 11, 2001, attacks.

Haspel’s confirmation hearing is scheduled for May 9.

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