The Department of Justice (DOJ) has given the leaders of the Senate Intelligence Committee the summary of a 2010 report that could shed more light on the role Gina Haspel, President TrumpDonald TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response MORE's pick to lead the CIA, played in the destruction of videotapes documenting a pair of brutal interrogations.
The files from the DOJ's “Durham report” — named after John Durham, the special prosecutor assigned to the case — have never been made public or given to Congress.
The DOJ delivered the report summary on Monday afternoon, according to a source familiar with the matter, just days before Haspel is set to have her confirmation hearing before the committee. The disclosure stems from a request made by the committee's top Democrat, Sen. Mark WarnerMark Robert WarnerPanic begins to creep into Democratic talks on Biden agenda Democrats surprised, caught off guard by 'framework' deal Schumer announces Senate-House deal on tax 'framework' for .5T package MORE (Va.).
Haspel, now the acting director of the CIA, drafted the cable ordering the destruction of the tapes in 2005. Although Durham did not recommend charges for Haspel, several lawmakers on the committee have identified the incident as one of their key concerns with her nomination.
The Durham report has remained something of an enigma in the uproar over the agency's use of brutal techniques now widely considered torture in the years after the Sept. 11 attacks.
At the time, the DOJ 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.
The decision to destroy the tapes 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.
Warner last month requested a copy of the full report "to understand Ms. Haspel's role," arguing that the recently-declassified Morell review "relies heavily" on the conclusions reached by Durham.
Warner did 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.
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."
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 Wednesday.