The US Department of Justice (DOJ) recently announced that Assistant US Attorney John Durham has completed his criminal investigations into the Central Intelligence Agency (CIA) detention program. This has, at long last, made a crucial but largely overlooked inquiry by the National Archives and Records Administration (NARA) into the destruction of the CIA interrogation tapes undeniably ripe. At stake in the inquiry is nothing less than the records of our nation and it is time for the CIA to finally account for these actions.
In late 2007, immediately after the CIA disclosed the destruction of the tapes, the National Archives quietly sent a letter [PDF] to the CIA questioning its compliance with the federal recordkeeping laws collectively known as the Federal Records Act. These laws require agencies to preserve federal records which include any material documenting official government business that is "appropriate for preservation" in order to ensure the "accurate and complete" documentation of agency activities. An agency may not destroy such records without approval from the archivist of the NARA and, as the National Archives noted in its letter, the CIA had none with respect to the videotapes.
Once Durham's criminal investigation into the destruction of the tapes began in early 2008, however, the inquiry of the National Archives was stopped in its tracks. The CIA asserted [PDF] that a substantive response to the National Archives would have to wait until Durham's investigation was complete. The National Archives responded [PDF] that the case would remain open.
Almost three years later, following the DOJ's announcement that Durham would not pursue any criminal charges for the destruction of the tapes, the National Archives renewed its inquiry into whether the destruction constituted an "unauthorized destruction" of federal records with a November 2010 follow-up letter [PDF]. The CIA, however, indicated publicly that it would still not respond substantively to the National Archives because Durham had "not yet fully completed" his larger investigation "into the former detention program." That time has now come.
Previous reports of the NARA inquiry have been met with disappointment that the National Archives is not empowered to put anyone in prison. In crucial respects, however, the National Archives inquiry is far more important than the maundering criminal investigation into the tape destruction that delayed it for over four years.
First, the focus of the National Archives inquiry is, and has always been, the CIA's institutional responsibility to preserve the records of our government. The CIA's troubling interpretation of that obligation evidenced by its early public statement that the destruction of the tapes was "in line with the law" is precisely what allowed the destruction to occur and what made proving individual criminal intent so difficult. That CIA officer Jose Rodriguez, who ordered the destruction, was not charged with a crime should hardly come as a surprise given that, as Rodriguez explained at length in his recent book, CIA attorneys repeatedly advised him that there was no legal obligation to preserve them. This alarming advice was also consistent with the CIA's distressing public assertion that the tapes were not "records" under the Federal Records Act. The National Archives inquiry at last requires the CIA either to defend that position or abandon it.
Second, preventing the further destruction of records is more important than pursuing criminal charges for past destruction. The CIA's questionable interpretation of the Federal Records Act has now gone unchecked for the last four-and-a-half years and may have already resulted in the destruction of additional material we know nothing about. The National Archives inquiry addresses the underlying problem and, should it conclude that the CIA has failed to comply with its statutory obligations to preserve records, it could force remedial measures within the CIA to prevent further unlawful destruction.
Third, the inquiry profits from the special expertise, credibility and objectivity of the National Archives. The role of an archivist is to ensure the preservation of evidence based on whether it is important not whether it is "good" or "bad." Lost in the long debate over these tapes is the shortsighted nature of the CIA's actions in destroying the tapes. The importance of the tapes was not limited to protecting the rights of detainees, but also protecting the rights of the interrogators depicted on them as well as any additional intelligence information they may have contained.
Finally, responding to the National Archives inquiry does not require additional years of costly, fact-intensive investigation. It does not require interfering with CIA operations or ongoing investigations. It simply requires that the CIA reply to the inquiry of the National Archives and explain why it believes the federal records laws did not require the preservation of live videotapes depicting activity the waterboarding of detainees whose legality and effectiveness is one of the most important moral and legal debates of our times. Or, perhaps under the leadership of Director David Petraeus, the CIA might admit that it was wrong, that the destruction was not "in line with the law," that it has taken steps to prevent more destruction and that it will sin no more.
It is time for the CIA to respond to our National Archives. This is not about investigating the past, but about preserving it.
Douglas Cox is an Associate Law Library Professor at the City University of New York School of Law. He blogs about government records and archives, document destruction and armed conflict at Document Exploitation.
Suggested citation: Douglas Cox, The CIA and the Unfinished National Archives Inquiry, JURIST - Forum, Oct. 3, 2012, http://jurist.org/forum/2012/10/douglas-cox-cia-records.php.
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org