Disclosures that the Central Intelligence Agency destroyed videotapes of the interrogation of Al Qaeda suspects has opened a new front in the debate over the alleged use of torture in the war on terror.
Both the Justice Department and the CIA have begun initial inquiries into the matter following concerns by members of Congress that the tapes were destroyed in 2005. That was after they and some administration officials urged that the tapes be preserved.
A meeting between Justice Department officials and the CIA Inspector General's Office is expected early this week to determine if further investigation is warranted. CIA Director Michael Hayden is set to appear on Tuesday before the Senate Intelligence Committee. The CIA has said it will preserve all materials.
"Burning tapes, destroying evidence, I don't know how deep this goes," said Sen. Chuck Hagel (R) of Nebraska, a member of the Senate Intelligence Committee, on CBS's "Face the Nation." "Could there be obstruction of justice? Yes," he said. "How far does this go up into the White House? I don't know."
The developments come as both the House and Senate are considering an amendment to the 2008 intelligence authorization bill that would require the CIA – and all other government agencies – to abide by the protections in the Army Field Manual during interrogations. Techniques such as waterboarding are barred under the manual.
When he disclosed the destruction of the two tapes on Thursday, CIA Director Hayden said the tapes were destroyed because they "posed a serious security risk." He added: "Were they ever to leak, they would permit identification of [CIA officers] who had served in the program, exposing them and their families to retaliation from al-Qa'ida and its sympathizers."
But other analysts say the tapes were important because they held real-time evidence of the precise interrogation techniques used by US officials against top terror suspects.
If the techniques were clearly legal, as the CIA director insists, the tapes would provide interrogators with strong evidentiary protection against future lawsuits or torture allegations.
On the other hand, if the techniques were clearly unlawful or of borderline legality, the continued existence of the tapes might place US interrogators – and those who authorized their actions – in substantial legal jeopardy.
The tapes could also undercut terror cases in US courts and undermine the legitimacy of military commission trials now under way at the US terror prison camp at Guantánamo Bay, Cuba, according to legal analysts.
The tapes were made in 2002 and were destroyed in 2005. One of the taped subjects was Abu Zubaydah, an Al Qaeda leader who President Bush identified as having been singled out for special harsh interrogation tactics.
The information from Mr. Zubaydah played a foundational role in authorizing further aggressive actions by the US government in the war on terror. For example, Zubaydah was the primary source for the material witness warrant issued for the arrest of Jose Padilla when he stepped off a plane in Chicago in May 2002. A month later, Bush administration officials publicly accused Padilla of plotting to detonate a radiological "dirty bomb," and Mr. Bush ordered him detained indefinitely by the military as an enemy combatant.
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.
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.