What Gina Haspel Got Wrong About the Torture Tapes She Helped Destroy
During today’s nomination hearing for Gina Haspel, President Donald Trump’s pick to lead the CIA, Haspel testified about a topic that has rightly generated significant controversy: the destruction of 92 videotapes showing CIA torture.
Sen. Diane Feinstein (D-Calif.), asked a question about the destruction of those tapes, misspeaking when she referred to tapes showing interrogations “of 92 detainees.” Haspel, seemingly determined to correct Feinstein, stated that the tapes “were of only one detainee.”
But the CIA’s own records produced in response to the ACLU’s torture transparency litigation contradict Haspel. According to those records, which include a declaration under oath from then-CIA Director Leon Panetta, the 92 destroyed tapes depicted abuse of two detainees: Abu Zubaydah and Abd al-Rahim al-Nashiri.
Here’s what we know: The videotapes were subject to long-running ACLU Freedom of Information Act litigation seeking to make public information about the torture program. After news about the videotape destruction broke, the judge in the case ordered the CIA to produce information about, among other things, the content of those videotapes.
One of the documents the CIA produced — with a heading “Inventory and Review of Interrogation Videotapes”— shows that in December 2002, the CIA inventoried tapes created during the interrogations of both Abu Zubaydah and al-Nashiri. According to the inventory, 90 of the videotapes were of one detainee (Detainee #1), referenced sometimes as AZ or Abu Z. Tapes numbered 91 and 92 in that document were under a subheading, “Detainee #2.” Detainee #2 is not identified, but based on the initial description in the document itself, we can presume detainee #2 was al-Nashiri. In any event, it’s clear there were tapes of two detainees.
There’s more. In the lawsuit, Panetta provided a sworn declaration in response to a court order requiring “the Government to compile a list of documents related to the contents of 92 destroyed videotapes of detainee interrogations that occurred between April and December 2002.” The court also ordered the CIA to select a sample of 65 documents for review for potential release. The Panetta declaration attached a log containing descriptions of those sample documents. Most refer to Abu Zubaydah. But three refer to both Abu Zubaydah and al-Nashiri, or al-Nashiri alone (documents number 51, 52, 53). It’s hard to see why Panetta would have included those three documents, which specifically name al-Nashiri, if his abuse wasn’t related to the “contents of the 92 destroyed videotapes.”
That’s not all. The judge in the case, who reviewed the documents himself, made clear in a subsequent opinion that 90 videotapes recorded Abu Zubaydah, two were of sessions with al-Nashiri, and that 92 videotapes were destroyed. And a November 2005 CIA cable confirms that “ALL 92 [REDACTED] VIDEOTAPES WERE DESTROYED.”
There’s still more. The executive summary of the Senate Intelligence Committee’s Torture Report also specifically says that on December 11, 2007, the committee “initiated a review of the destruction of videotapes related to the interrogations of CIA detainees Abu Zubaydah and Abd al-Rahim al-Nashiri after receiving a briefing that day on the matter by CIA Director Michael Hayden.”
This leaves us with a host of questions. Why did Haspel say the tapes were of one detainee? It’s possible she misspoke. But if what she said is true, does that mean multiple CIA records submitted in response to a court order were incorrect? And could that mean that there are still tapes out there depicting al-Nashiri’s torture which ? If so, has Congress seen them? If not, what happened to them?
Or was she not telling the truth? And if so, what else is she not telling the truth about? There’s already another discrepancy today in accounts about the videotape destruction. There’s no dispute that Haspel was an avid proponent of destruction. In a Propublica account published today, Haspel’s then-boss at the CIA, Jose Rodriguez, he told Haspel in advance that he intended to destroy the tapes. In her Congressional testimony, Haspel denied that he did so.
Perhaps there’s some other explanation for the detainee videotape discrepancy. And for why Haspel’s account doesn’t square with Rodriguez’s. But unless the CIA releases more information about Haspel’s role — beyond the information serving its propaganda campaign on her behalf — we won’t know.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.