The lead prosecutor in the terrorism case against Zacarias Moussaoui likely knew the CIA destroyed tapes of its interrogations of al-Qaida suspects more than a year before the government admitted it to the court, newly unsealed documents show.
The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui's attorneys to send the case back to a lower federal court to find out why the tapes weren't disclosed and whether they would have influenced his decision to plead guilty.
In a Dec. 18, 2007, letter to the appeals court's chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA's tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.
The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes' destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible for the death penalty.
Moussaoui, a French citizen of Morrocan descent, pleaded guilty in April 2005 to his role in the Sept. 11 attacks. Spared the death penalty, he was sent to prison for life.
‘Does not recall being told’
Spencer, who was one of three prosecutors on the government's team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.
Another prosecutor in Rosenberg's office in Virginia's eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.
That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.
It is unclear what that project was.
Attempts to reach Spencer on Wednesday evening were unsuccessful.
Glimpse into court struggle
Much of the legal correspondence in the Moussaoui case has been classified and under court seal. The documents released Wednesday offer a glimpse into the court's struggle to determine for sure whether the CIA taped its interrogations of terror suspects.
Moussaoui pleaded guilty in 2005 to conspiring with al-Qaida to hijack aircraft, among other crimes. In a 2006 sentencing trial, a jury concluded that Moussaoui's actions furthered the Sept. 11, 2001, plot in which terrorists flew hijacked airliners into buildings in New York and Washington. But the jury ultimately decided to spare his life and sentence him to life in prison.
The December letter came on the heels of one dated Oct. 25, in which Rosenberg informed the court that the CIA did, in fact, possess videotaped interrogations of enemy combatants. During Moussaoui's sentencing trial, prosecutors told U.S. District Judge Leonie M. Brinkema that no such recordings existed.
The tapes at issue in that letter are not the same ones that were destroyed by the CIA in 2005 and prosecutors assured the judge that they were not related to the Sept. 11, 2001, attacks or the Moussaoui case.
The Justice Department has opened a criminal investigation into the CIA's videotapes, which showed interrogations of Zubaydah and another top al-Qaida leader. They were destroyed, in part, to protect the identities of the government questioners at a time the Justice Department was debating whether the tactics used during the interrogations — which are believed to have included waterboarding — were illegal.
‘Surely important evidence’
In a written response to the December letter, Moussaoui's attorneys asked the appeals judges to send the case back to the lower federal court that "is in the best position to determine what actually happened and its relevance."
"The timing is important here," Moussaoui attorneys Justin S. Antonipillai and Barbara Hartung wrote in their Dec. 26 response. "The fact that any prosecutor in the same office knew about the existence and destruction of these tapes is surely important evidence."
Beginning in 2003, attorneys for Moussaoui began seeking videotapes of interrogations they believed might help them show he wasn't a part of the 9/11 attacks. Brinkema on Nov. 3, 2005, asked for confirmation of whether the government "has video or audio tapes of these interrogations" and then named specific ones.
Eleven days later, the government denied it had video or audio tapes of those specific interrogations.
Despite the lapse in disclosure, the government maintains that none of the interrogations related directly to the Sept. 11, 2001, attacks or the Moussaoui case.
Prosecutors also say the issue is moot since a jury failed to impose the death penalty in the case.