updated 11/9/2010 9:16:24 PM ET 2010-11-10T02:16:24

A special prosecutor cleared CIA employees Tuesday of any criminal charges for destroying videotapes that showed waterboarding of terror suspects, even though two sources close to the case say a key witness was never questioned.

The sources, who spoke on condition of anonymity, said that special counsel John Durham never issued a grand jury subpoena for testimony from Jose Rodriguez, the CIA's former top clandestine officer, who approved the destruction of the tapes.

Rodriguez' lawyer, Bob Bennett, had made clear that his client would not testify without a grant of immunity. But Durham's failure to call Rodriguez, or even question him as a witness, surprised one lawyer close to the case, indicating it could raise questions about the special counsel's claim that he had conducted a "thorough" investigation.

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Bennett declined to comment on whether Rodriguez had testified. But he said in a statement, "We are pleased that the DOJ has decided not to forward against Mr. Rodriguez. This is the right decision because of the facts and the law. Jose Rodriguez is an American hero, a true patriot who only wanted to protect this people and his country."

The decision not to prosecute anyone in the videotape destruction came five years to the day after the CIA destroyed its cache of 92 videos of two al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being subjected to waterboarding, which evokes the sensation of drowning. The deadline for prosecuting someone under most federal laws is five years.

However, the part of the nearly 3-year-old criminal investigation that examines whether U.S. interrogators went beyond the legal guidance given them on the rough treatment of suspects will continue, a Justice Department official said. The official spoke on condition of anonymity because that part of the probe still is under way.

CIA Director Leon Panetta said the agency welcomes the decision, and "we will continue, of course, to cooperate with the Department of Justice on any other aspects of the former program that it reviews."

Rodriguez, who was the CIA's top clandestine officer when the tapes were destroyed, worried that the videos would be devastating to the agency if they ever surfaced; he approved their destruction. Rodriguez's order was at odds with years of directives from CIA lawyers and the White House.

Rodriguez' lawyer, Robert Bennett, said the department made "the right decision because of the facts and the law" and called his client "a true patriot who only wanted to protect his people and his country."

In January 2008, President George W. Bush's last attorney general, Michael Mukasey, appointed Assistant U.S. Attorney John Durham a special prosecutor to investigate the videotape destruction. Later, President Barack Obama's attorney general, Eric Holder, added the inquiry into the conduct of the harsh questioning.

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A team of prosecutors and FBI agents led by Durham has conducted an exhaustive investigation into the matter, said Matthew Miller, chief Justice Department spokesman.

"As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes," Miller said.

The department's carefully phrased announcement did not rule out the possibility of charging someone with lying to investigators looking into the tape destruction.

Jamell Jaffer, a lawyer for the ACLU, criticized the decision.

"It's disappointing. We still believe the destruction of the tapes violated the criminal law and court orders requiring the CIA to preserve records" of interrogations, he said. "The problem here is not just the destruction of the tapes, but what the tapes depicted — interrogators using barbaric methods endorsed at the highest levels of the government."

Separately, the Justice Department advised the House of Representatives and Senate judiciary committees that it had reviewed newly found e-mails sent by Bush administration lawyer John Yoo and stands by a conclusion that Yoo did not commit professional misconduct in authorizing CIA interrogators to use waterboarding and other harsh tactics. The department's letter to the committees, obtained Tuesday by The Associated Press, stood by the earlier finding that Yoo had merely exhibited poor judgment.

CIA officers began the videotaping to show that Abu Zubaydah was brought to a secret CIA prison in Thailand already wounded from a firefight and to prove that interrogators followed broad rules Washington had laid out.

Almost as soon as taping began, top officials at agency headquarters in Langley, Virginia, began discussing whether to destroy the tapes, according to current and former U.S. officials and others close to the investigation.

Dozens of CIA officers and contractors cycled in and out of Thailand to help with the questioning. If those videos ever surfaced, officials feared, nearly all those people could be identified.

During the investigation, agency lawyers were forced to turn over long lists of documents, including classified cables from around the world. Former CIA Director Porter Goss was summoned before a grand jury, as were the agency's former top lawyer, John Rizzo, and its current station chief in London.

Despite standing orders from the Bush White House not to destroy the tapes without checking with administration officials, momentum for their destruction grew in late 2005 as the CIA Thailand station chief, Mike Winograd, prepared to retire, the current and former U.S. officials have said.

Winograd had the tapes in his safe and believed they should be destroyed, officials said.

On Nov. 4, 2005, as the CIA scrambled to quell a controversy from a Washington Post story revealing the existence of secret CIA prisons overseas, Rodriguez called two CIA lawyers. He asked Steven Hermes, his lawyer in the clandestine service, whether he had the authority to order the tapes destroyed. Hermes said Rodriguez did, according to documents and interviews.

Then Rodriguez asked Robert Eatinger, the top lawyer in the CIA's Counterterrorism Center, whether there was any legal requirement that the tapes be kept. Eatinger said no.

Eatinger and Hermes have told colleagues that they believed Rodriguez was merely teeing up a new round of discussions about the tapes and, because of previous orders not to destroy the tapes without White House approval, they were unaware that Rodriguez planned to move immediately, officials told The Associated Press.

Relying on the advice of Hermes and Eatinger, Rodriguez told Winograd to write an official request to destroy the videos. On Nov. 5, 2005, the request came in. Its justification: The inspector general had completed its investigation and CIA lawyer John L. McPherson had verified that the cables accurately summarized the tapes.

On Nov. 8, Rodriguez sent his approval.

It took about 3 1/2 hours to destroy the tapes. On Nov. 9, Winograd informed Rodriguez the job was complete. Goss and Rizzo would not find out until the next day.

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The fact that no one would be charged with destroying the tapes was first reported by NPR, which cited two sources as saying a federal prosecutor had concluded there isn't enough evidence to bring an indictment. The statute of limitations on criminal law covering the tapes' November 2005 destruction expired this week, making future prosecution impossible, NPR reported.

Many of the 92 videotapes destroyed by the CIA contained innocuous images of detainees, but a few showed harsh interrogation tactics, including waterboarding, being used in 2005 against two al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri.

Zubaydah, believed to be one of Osama bin Laden's top lieutenants, was arrested in Pakistan in March 2002 and is in custody at the U.S. military base in Guantanamo Bay, Cuba. Al-Nashiri, also being held at Guantanamo, is the alleged mastermind of the suicide bombing of the USS Cole in October 2000.

This article includes reporting from NBC News' Michael Isikoff and The Associated Press.

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