updated 1/9/2008 8:54:12 PM ET 2008-01-10T01:54:12

Attorneys for Jose Rodriguez told Congress the former CIA official won't testify about the destruction of CIA videotapes without a promise of immunity, two people close to the tapes inquiry said Wednesday.

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Rodriguez, the former head of the CIA's National Clandestine Service, ordered that the tapes, which show harsh CIA interrogation of two al-Qaida suspects, be destroyed in 2005. Rodriguez is scheduled to testify before the House Intelligence Committee on Jan. 16.

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

The discussions were described by two people close to the case who spoke on condition of anonymity because the talks were to be private.

The CIA has acknowledged that it destroyed the videos, and the Bush administration has urged Congress and the courts to stay out of the tapes inquiry while the Justice Department investigates.

Judge to stay out of case
U.S. District Judge Henry H. Kennedy agreed Wednesday not to hold hearings. He said the Justice Department had promised a thorough investigation, and he saw "no reason to disregard the Department of Justice's assurances."

Congress, however, has refused to back off and had planned to make Rodriguez one of the first witnesses in its investigation. It was unclear whether Bennett issued a formal request for immunity or merely told the committee that Rodriguez wouldn't testify without it.

Reached by telephone Wednesday night, Bennett said he would have no public comment on the matter. A spokesman for the committee also declined to comment.

Lawmakers are typically reluctant to grant immunity requests because doing so could torpedo a criminal investigation. Anything Rodriguez spoke about would be off-limits to the Justice Department, as would any secondary evidence built on his testimony.

Attorney General Michael Mukasey recently appointed a prosecutor to conduct a criminal investigation into destruction of the tapes. John Durham, a career public corruption and organized crime prosecutor, has a reputation for being independent.

Durham is investigating whether destroying the tapes amounted to obstruction of justice or violated any court orders.

Judges had ordered evidence protected
Kennedy and others had ordered the Bush administration not to destroy any evidence of mistreatment or abuse of terrorism suspects being held at the U.S. naval prison at Guantanamo Bay, Cuba. But the two suspects interrogated on video — Abu Zubaydah and Abd al-Rahim al-Nashiri — were not held at Guantanamo. They were interrogated in secret CIA prisons overseas.

Kennedy, a former prosecutor who was appointed to the bench by President Clinton, said Wednesday that the tapes do not appear to have been covered by his court order. He ruled that attorneys for Yemeni detainees at Guantanamo Bay hadn't "presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead."

Attorney David Remes had said a judicial inquiry might involve testimony from senior lawyers at the White House and Justice Department. Government attorneys, appearing in court Dec. 21, said such hearings would disrupt and possibly derail the ongoing Justice Department inquiry.

Lawyers for other terrorism suspects have filed similar requests before other judges. While Kennedy's decision doesn't require those judges to follow suit, it will help bolster the Justice Department's argument that they should not wade into the investigation.

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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