Interrogation tape scandal is phony, the evidence shows

Last night on his radio show, using the New York Times report about the destruction of detainee interrogation tapes and the 9/11 Commission Report as aides, Mark Levin disassembled the purported scandal:

From yesterday’s New York Times:

Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes had existed until 2005.

“The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice.

“No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings,” [emphasis added mine] he said.

Then why, Mr. Zelikow, in the ‘notes’ section (footnotes endnotes) of the 9/11 Commission Report are the following sources sited? (The endnote number begins each entry. At the end of that entry is a link directly to the related page in the Commission’s report):

Endnotes for Chapter 2:

#18. … See, e.g., Intelligence report, interrogation of Zubaydah, Oct. 29, 2002;… [Page 54] #76. …. Intelligence reports, interrogations of KSM and Zubaydah, 2003… [page 66]

Endnotes for Chapter 5

#19. … See also Intelligence report, interrogation of Abu Zubaydah, Nov. 7, 2002; … [page 150] #31. … See Intelligence report, interrogation of Abu Zubaydah, Aug. 29, 2002. … [page 153] #35 … Intelligence report, interrogation of Abu Zubaydah, May 16, 2003… [page 154]

Endnotes for Chapter 6

#5 … See Intelligence report, interrogation of Abu Zubaydah, July 10, 2002… [page 175] #8 … For more on the origins of the Encyclopedia, see Intelligence report, interrogation of Abu Zubaydah, June 24, 2003 … [also page 175] #125 … see Intelligence report, interrogation of Abu Zubaydah, Dec. 13, 2003… [page 191]

Endnotes for Chapter 7

#90 … Intelligence report, interrogation of Abu Zubaydah, Feb. 19, 2004;… [page 232] #108 … Intelligence report, interrogation of Zubaydah, Feb. 18, 2004… [page 236]

The information relating to 9/11 from Abu Zubaydah (from his interrogations) was provided to the 9/11 Commission and used within their report. It seems as if Mr. Zelikow was playing word games when he said the CIA provided them no transcript of those interrogations. He had the information the Commission requested and they were not investigating interrogation techniques.

Again, from the Times:

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.

In both 2003 and 2005 C.I.A. lawyers told prosecutors in the Moussaoui case that the C.I.A. did not possess recordings of interrogations sought by the judge. Mr. Moussaoui’s lawyers had hoped that records of the interrogations might provide exculpatory evidence for Mr. Moussaoui, showing that the Qaeda detainees did not know Mr. Moussaoui and clearing him of involvement in the Sept. 11, 2001, plot.

…a C.I.A. spokesman said that the court had sought tapes of “specific, named terrorists whose comments might have a bearing on the Moussaoui case” and that the videotapes destroyed were not of those individuals. Intelligence officials identified Abu Zubaydah as one of the detainees whose interrogation tape was destroyed, but the other detainee’s name was not disclosed.

In other words, the information gathered from the interrogations on the tapes was neither relevant to the Moussaoui trial nor within the specifications of the federal judge’s request.

By the way, it took me all of 10 minutes, using the ‘find’ command, to gather the footnote information from the 9/11 Commission Report. Perhaps someone at the Times will one day actually read the whole thing.

Note: This is a cross-post from last night at

Rivkin and Casey: habeas would bring judges to the battlefield

In this morning’s Wall Street Journal (, David B. Rivkin Jr. and Lee A. Casey explain the detrimental effects granting detainees habeas review would have upon America’s ability to fight:

The [Military Commissions Act] established a system of military tribunals to try the Guantanamo detainees, again with appeals to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. The law also stated with remarkable clarity that these procedures excluded all other judicial review for detainee claims, past, present and future. As one judge wrote in dismissing Mr. Boumedienne’s case after the MCA was enacted — “it is almost as if the [congressional] proponents of these words were slamming their fists on the table shouting ‘When we say ‘all,’ we mean all — without exception.'”

Last April, the Supreme Court appeared to agree, refusing to revive the appeals. Unfortunately, it changed its mind in June, agreeing to consider whether Congress can constitutionally refuse the Guantanamo detainees — who are not U.S. citizens or held on U.S. territory — access to habeas corpus rights. This is not a close question. When the framers adopted the Constitution to “secure the Blessings of Liberty to ourselves and our Posterity” they were not talking about enemy aliens overseas engaged in a war against the republic they founded.

That, certainly, was the Supreme Court’s conclusion in Johnson v. Eisentrager (1950), which involved similar claims by Germans arrested by U.S. forces in China, and then imprisoned in occupied Germany. Their habeas claims were rightly rebuffed.

As Justice Robert Jackson wrote for the court, “Such extraterritorial application of organic law [the Constitution] would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment.” Such a rule would, indeed, have been bizarre — handicapping the U.S. in its foreign relations and putting it at a permanent disadvantage compared to every other country on earth.

That was true in 1950, and it remains true today. To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent — on which the president and Congress were entitled to rely — and rewrite the Constitution itself.

The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court “would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

Granting habeas corpus rights to terrorists plays right into their hands. Our commanders and intelligence services would have to reveal the details of the operations and intelligence that resulted in a detainee’s capture whether we prosecuted them or not.

Why would we attempt to take prisoners or accept the surrender of unlawful combatants when they will just remain silent and lawyer up? What individual or foreign nation will provide intelligence about terrorists to the United States knowing that later the source of the information will be revealed?