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Destroyed CIA tapes spur probes

They could have shown if the harsh interrogation of terror suspects was illegal, analysts say.

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Had the existence of the taping been disclosed, Padilla's lawyers could have insisted that a judge examine the tape for any evidence that Zubaydah's statements were coerced, untruthful, or the product of torture. Such information, if true, would have undermined the legitimacy of the warrant. The New York federal judge involved at those early stages of the Padilla case was Michael Mukasey, who was confirmed last month to replace Alberto Gonzales as Bush's attorney general.

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Officials with the 9/11 Commission say that during their investigation of the Sept. 11 attacks, they asked the CIA directly if any video­tapes of Al Qaeda interrogations existed. The CIA denied the existence of such tapes.

And the judge in the 9/11 conspiracy trial of Zacarias Moussaoui ordered federal prosecutors in May 2003 to determine the existence of any videotapes of detained suspects – including specifically Zubaydah. The CIA told the Justice Department at that time that it had no tapes.

The judge issued the same order in November 2005. According to documents on file in Mr. Moussaoui's case, a CIA official responded that "the US government does not have any video or audio tapes of the interrogations...."

The issue was important because Moussaoui was insisting that Al Qaeda leaders would verify that he did not play a role in the 9/11 attacks. His role was to come later, he said. Nonetheless, the government argued that Moussaoui was the so-called 20th hijacker, showed the jury tapes of people jumping out of the World Trade Center just before it collapsed, and then urged the jury to sentence Moussaoui to death. It sentenced him to life in prison.

This past September, according to court documents, a CIA attorney notified Justice Department officials that in fact tape recordings did exist that would have been responsive to the judge's 2003 and 2005 orders. The CIA turned the two videotapes and an audiotape over to prosecutors, who viewed and listened to the tapes. They reported to the judge that the tapes included no mention of Moussaoui, and thus had no bearing on the Moussaoui case.

"The errors in the CIA declarations at issue, although unfortunate, did not prejudice Moussaoui, who pled guilty," Assistant US Attorney David Novak wrote in an Oct. 25 submission to the court. The submission was initially classified "Top Secret."

While Mr. Novak's analysis of the three existing tapes may be accurate, it says nothing about whether anything on the destroyed Zubaydah tape might have been relevant to the Moussaoui case.

Moussaoui's is serving his life sentence with no possibility of parole in the highest security wing of the federal "supermax" prison in Florence, Colo. Padilla was convicted last summer in a Miami terror conspiracy trial and is awaiting sentencing on Jan. 7. The government is asking that Padilla be sentenced to life without parole.

The two CIA tapes aren't the first time video evidence of interrogations have gone missing. Prior to the Padilla trial, the Defense Intelligence Agency said it was unable to locate a DVD containing the only existing copy of an interrogation of Padilla conducted in March 2004. That DVD remains unaccounted for.