AMY GOODMAN: The Justice Department and the Central Intelligence Agency have launched a joint probe into the CIA’s destruction of at least two tapes documenting prisoner interrogations at a secret CIA prison. CIA Director Michael Hayden said the tapes were destroyed because they posed a “serious security risk.” Hayden says if they were to become public they would have exposed CIA officials and their families to “retaliation from Al Qaeda and its sympathizers.” But critics have accused the CIA of deliberately destroying evidence that could have been used to hold agents accountable for the torture of prisoners.

One of the tapes is believed to have shown CIA agents waterboarding the al-Qaeda operative Abu Zubaydah. Defense lawyers for Guantanamo prisoners say the destruction of the tapes could open new challenges in cases based largely on information Zubaydah gave to interrogators.

Meanwhile, new questions are being raised about the role of senior lawmakers in backing the alleged torture. The Washington Post reports the CIA has regularly briefed senior members of the House and Senate intelligence committees on its secret prisons and the interrogation techniques used there since 2002. The lawmakers include four Democrats: House Speaker Nancy Pelosi Pelosi, Congressmember Jane Harman, Senators Bob Graham and Jay Rockefeller.

CIA officials say the controversial practice of waterboarding was among the techniques on display. But except for one known instance, no lawmaker is said to have voiced objection through the course of some thirty private briefings. Democrats and some Republicans have raised increasing criticism of waterboarding, but only after its use became publicly known.

I’m joined now by two guests. Scott Horton is remaining with us, teaches at Columbia Law, is a contributor to Harper’s Magazine, where he writes the blog, “No Comment.” Joining me from Washington, Mark Benjamin, national correspondent for Salon.com. His latest piece is called “For the CIA’s Eyes Only.”

I want to start here with Scott Horton. Talk about the man that is now being accused of the destruction of the tapes.

SCOTT HORTON: Well, it’s an interesting point of continuity with your last segment, because the man in the crosshairs here, Jose Rodriguez, Jr., was the head of operations at the CIA. He’s the man now being fingered as the person who actually authorized the destruction, and he has been recruited very aggressively for a period of over a year, according to our sources, by Blackwater — not surprisingly either, because he was very, very close to Cofer Black, who of course is the vice chair of Blackwater. And Cofer Black’s name also comes up here over and over again as being right in the middle of this process leading to the application of these procedures, the preparation of recordings and then the destruction of the recordings.

AMY GOODMAN: Mark Benjamin, your piece asks the question: was the agency’s destruction of the video recordings a cover-up? Explain what you understand happened and what you think they’re covering up.

MARK BENJAMIN: Well, the thing that’s important to understand about these tapes is that they were made in 2002, and this is a period of time when the CIA, in particular, but also the military are starting to experiment and utilize these so-called “enhanced” interrogation techniques — waterboarding, stress positions, isolation, that sort of business — to break people down. So what the CIA did in 2002 is — and we’ve talked about this on your show before — is enlist a group of psychologists as CIA contractors who know a lot about Cold War methods used by the Soviets and others to break down our soldiers, which include the same techniques. So the agency at that period of time was just starting to use these techniques and with some — with brutal — and they’re very, very brutal techniques.

AMY GOODMAN: You name names in this. You talk about James Mitchell and Bruce Jessen. Mitchell and Jessen have that company in Spokane. Can you talk about their involvement, these CIA-employed psychologists?

MARK BENJAMIN: Well, these people are affiliated with the Survival Escape Resistance [Survival Evasion Resistance Escape] program. It’s a military program that over the years has taught US soldiers to resist basically torture if captured, everything from waterboarding to stress positions, these other things that we’ve discussed.

What happened in 2002 is the CIA and the military turned to these psychologists, including those two gentlemen you mentioned, Mitchell and Jessen, to reverse-engineer those techniques. So this sort of all wraps together. In other words, these psychologists are providing the CIA with these techniques, starting to provide the military with these techniques, and these are the very techniques that it sounds like are on these videotapes that were destroyed and probably are not something that’s very pretty to look at.

AMY GOODMAN: And what does this mean right now? It was 2005 that they were destroyed, of 2002 interrogations. What do you think happens from here?

MARK BENJAMIN: Well, it’s unclear what happens from here. I mean, that will depend on what the Justice Department decides to do. One of the things that’s interesting about 2005 is that the — at that time, Congress had not passed the Military Commissions Act. That’s a late 2006 law which, among other things, gives people like CIA operatives some cover, some legal cover, for past deeds. In 2005, that didn’t exist. So in 2005 the CIA had even more to worry about than that it did now, which lends to the optics, at least, that this was, you know, just basically a cover-up of evidence of war crimes.

AMY GOODMAN: Do you think that psychologists are on these videotapes?

MARK BENJAMIN: It’s unclear. I mean, we certainly know that at least one of them was in the room at a very early interrogation that looks like it would have been Zubaydah, or very close to the room. We don’t know who’s on the tapes, but it certainly is reasonable to believe that they could be.

AMY GOODMAN: And where does this fit into the whole struggle within the APA of dissident psychologists? A number — some of them have resigned at this point, protesting the APA’s policy, American Psychological Association’s policy of continuing to allow psychologists to be involved with the interrogations.

MARK BENJAMIN: Well, it just raises further questions about why the American Psychological Association, as opposed to the American Medical Association and the American Psychiatric Association, has been so reticent to just cut itself off from doing these interrogations. It’s the only, you know, major medical organization that continues to essentially play ball with the military and the CIA, even though they continue to say that they’re not.

AMY GOODMAN: Now, I think something like six psychology departments at colleges around the country have passed resolutions protesting the APA’s position on interrogations.

MARK BENJAMIN: Yeah. And it’s really — it’s been tearing the organization apart. I mean, it’s not that the APA is about to go away, but they’ve — you know, when you go to these meetings — we were at one in San Francisco over the summer, you know, it’s really — it’s an extremely controversial stance that the APA has taken over the years to continue to participate. And when they participate, you know, in the APA’s defense, they say, we’re not participating in torture, but they continue to use language when they pass resolutions saying they won’t participate in torture that looks very similar to language the Bush administration has stuffed in various bills going through Congress that seems to allow them to continue to do it.

AMY GOODMAN: Your take on this, overall, Scott Horton?

SCOTT HORTON: Well, I think that these tapes would have shown the procedures that the APA has described at one point as safe, humane and legal. Of course, they’ve argued that psychologists participating in them would make them so. I think it would show just exactly the opposite.

But I want to come back to another point. My sources are saying that the destruction actually occurred in mid to late November of 2005. That really puts it in a different context. Two things going on at that point: one, the Justice Department has decided that it’s going to bring criminal charges against Jose Padilla; two, we have the Musawi case going on in the Eastern District of Virginia, and in that case Judge Leonie Brinkema is pushing, demanding, that the government turn over any tapes that existed of interrogation. In fact, I went back and examined the transcripts. She is specifically asking about the al-Zubaydah tapes, asking if there are any, and the government’s giving a reassurance: “No, no, no, there are no tapes. We’ve checked.” They say they relied on certifications from the CIA. Well, those representations are false. So we have false statements made to a court, and we have a clear attempt to evade a court order. That makes it obstruction of justice. That’s a crime.

AMY GOODMAN: And the fact that Nancy Pelosi, among others in the Democratic leadership, Jay Rockefeller, were briefed on the torture techniques?

SCOTT HORTON: Well, that’s astonishing, frankly, that there were —-

AMY GOODMAN: Going way back.

SCOTT HORTON: —- going way back — that there was no attempt to record dissents or go to the floor of the House or the Senate and talk about it. I’ve got to really single out Jay Rockefeller here. I mean, to me, we’ve seen a number of really dramatic turnaround in positions here, but Jay Rockefeller is one. I mean, he issued two press releases on two different days in which he took diametrically opposed stances —-

AMY GOODMAN: We have five seconds.

SCOTT HORTON: —- about what happened. One day he was briefed, and the next day he wasn’t.

AMY GOODMAN: On that note, we’re going to leave it. Scott Horton — thanks for joining us — teaches law at Columbia Law School; and Mark Benjamin, he’s the national correspondent for Salon.com.