Representative Jane Harman, Chair of the Homeland Security Subcommittee on Intelligence, released this letter to then CIA General Counsel Scott Muller on January 3, 2008. It is dated February 10, 2003 and exhorts the CIA to not destroy evidence from the interrogation of al Qaeda member Abu Zubaydah. The interrogation videotapes were destroyed in December 2007; Harman then requested that her letter and the subsequent response be declassified.

Mr. Scott Muller

General Counsel

Central Intelligence Agency

Washington, DC  20505

Dear Mr. Muller:

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment.  I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.  At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry.  I would urge the Agency to reconsider that plan.  Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.  The fact of destruction would reflect badly on the Agency.

I look forward to your response.

Sincerely,

JANE HARMAN

Text of CIA General Counsel Muller’s Response to Representative Harman:

28 February 2003

The Honorable Jane Harman

Ranking Democratic Member

Permanent Select Committee on Intelligence

House of Representatives

Washington, DC  20515

Dear Ms. Harman:

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described.  As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law.  While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Sincerely,

Scott W. Muller