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Lawyers left off memo to destroy CIA terror tapes

When the CIA sent word in 2005 to destroy scores of videos showing waterboarding and other harsh interrogation tactics, there was an unusual omission in the carefully worded memo: the names of two agency lawyers.
Image: Jose Rodriguez
Jose Rodriguez in an undated photo. As the CIA's top clandestine officer, Rodriguez told colleagues at a secret prison in Thailand to destroy video tapes of harsh interrogations.CIA via AP
/ Source: The Associated Press

When the CIA sent word in 2005 to destroy scores of videos showing waterboarding and other harsh interrogation tactics, there was an unusual omission in the carefully worded memo: the names of two agency lawyers.

Once a CIA lawyer has weighed in on even a routine matter, officers rarely give an order without copying the lawyer in on the decision. It's standard procedure, a way for managers to cover themselves if a decision goes bad.

But when the CIA's top clandestine officer, Jose Rodriguez, told a colleague at the agency's secret prison in Thailand to destroy interrogation videos, he left the lawyers off the note.

The destruction of the tapes wiped away the most graphic evidence of the CIA's now-shuttered network of overseas prisons, where suspected terrorists were interrogated for information using some of the most aggressive tactics in U.S. history.

Critics of that George W. Bush-era program point to the tapes' destruction and say his administration was trying to cover its tracks.

The reality is not so simple.

Interviews with current and former U.S. officials and others close to the investigation show that Rodriguez's order was at odds with years of directives from CIA lawyers and the White House. Rodriguez knew there would be political fallout for the decision, according to documents and interviews, so he sought a legal opinion in a way to gain needed legal cover to get the tapes destroyed — but not so much that anyone would stop him.

Leaving the lawyers he had consulted off his cabled order to destroy the tapes was so unusual that a top CIA official noted it in an internal e-mail just days later. The omission is now an important part of the Justice Department's 2 1/2-year investigation into whether destroying the tapes was a crime.

Prosecutors have focused on a little-used section of the 2002 Sarbanes-Oxley accounting law. That makes it illegal to destroy documents, even if no court has ordered them kept and no investigator has asked for them.

Rodriguez, who wasn't disciplined for what some former officials told prosecutors amounted to insubordination, is frequently back at CIA headquarters as a contractor.

The Associated Press has compiled the most complete published account to date of how the tapes were destroyed, a narrative that among other things underlines the challenges prosecutors face in bringing charges.

Most of the people interviewed spoke on condition of anonymity because of the continuing investigation. Some of the officials directly involved declined comment or were unavailable.

Origins of tapes
Taping CIA interrogations is unusual, but the 2002 captures of al-Qaida operatives Abu Zubaydah and Rahim al-Nashiri were unusual cases. The CIA wanted to unravel al-Qaida from within and the Bush administration allowed increasingly severe tactics to try to ensure cooperation.

Officers began videotaping to prove that Zubaydah arrived in Thailand wounded and to show they were following Washington's new interrogation rules.

Almost as soon as taping began, officials began discussing whether to destroy the tapes. Dozens of officers and contractors appeared on the tapes. If those videos surfaced, officials feared, nearly all those people could be identified.

In November 2002, CIA lawyer John L. McPherson was assigned to watch the videos and compare them with written summaries. If the reports accurately described the videos, that would bolster the case that the tapes were unnecessary.

Several of the 92 videos had been taped over, so the quality was poor. Others contained gaps. When one tape ran out, documents show, interrogators didn't always immediately insert a new one. Many contained brief interrogation sessions followed by hours of static.

McPherson concluded in January 2003 that the summaries matched what he saw. With that assurance, the CIA planned to destroy the tapes. But lawmakers who were briefed on the plan raised concerns, and the CIA scrapped the idea, agency documents show.

The White House didn't learn about the tapes for a year, and even then, it was somewhat by chance.

Abu Ghraib triggers review
Near the end of a May 2004 meeting between CIA general counsel Scott Muller and White House lawyers, the conversation turned to the scandal over photos of abuse in the military's Abu Ghraib prison in Iraq.

National Security Council lawyer John Bellinger's question was almost offhand: Does the CIA have anything that could cause a firestorm like Abu Ghraib?

Yes, Muller said.

David Addington, a former CIA lawyer who was Vice President Dick Cheney's legal counsel, was stunned that videos existed, officials said. But he told Muller not to destroy them, and Bellinger and White House counsel Alberto Gonzales agreed, according to documents and interviews with former officials.

That order stood for more than a year. Muller's successor, John Rizzo, received similar instructions from the next White House counsel, Harriet Miers: Check with the White House before destroying the tapes.

All the while, courts and lawmakers looking into detainee treatment were unknowingly coming close to the tapes:

  • A Virginia judge asked whether there were interrogation videos of witnesses relevant to Sept. 11 conspirator Zacarias Moussaoui. But that didn't cover Zubaydah, who the judge said was immaterial to the Moussaoui case, so the CIA didn't tell the court about his interrogation tape.
  • A Washington judge told the CIA to safeguard evidence of mistreatment at Guantanamo Bay. But Zubaydah and al-Nashiri were overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.
  • A New York judge told the CIA to search its investigative files for records such as the tapes. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.
  • The Sept. 11 commission asked for many documents, but never issued a subpoena.

Momentum builds to destroy tapes
Despite the White House orders, momentum for destroying the tapes grew again in late 2005 as the CIA Thailand station chief, Mike Winograd, prepared to retire.

Winograd had the tapes and believed they should be destroyed, officials said. At CIA headquarters, Rodriguez and his chief of staff agreed. Winograd did not return several messages from the AP seeking comment.

On Nov. 4, 2005, Rodriguez asked CIA lawyer Steven Hermes whether Rodriguez had the authority destroy the tapes. Hermes said Rodriguez did, according to documents and interviews. Rodriguez also asked CIA lawyer Robert Eatinger whether there was any legal requirement to keep the tapes. Eatinger said no.

Both Eatinger and Hermes remain with the agency and were unavailable to be interviewed. But both told colleagues they believed Rodriguez was merely restarting the discussion. Because of previous orders not to destroy the tapes, they were unaware Rodriguez planned to move immediately, officials told the AP.

Rodriguez told Winograd to request approval to destroy the tapes. That request arrived Nov. 5. Rodriguez sent his approval three days later.

He and his chief of staff were the only names on the cable. Had he sent a copy also to the CIA lawyers — Rizzo, Hermes or Eatinger — or even to CIA Director Porter Goss, any of them could have intervened.

"Before Jose did what he did, he was confident it was legal, that there was no impediment to him doing it," his lawyer, Robert Bennett told the AP. "And he always acted in the best interest of the U.S. and its people."

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

'They would make us look terrible'
Rizzo was angry and Miers livid, according to internal CIA e-mails. Goss agreed with Rodriguez's decision, the e-mails said, but predicted he'd get criticized for it. Rodriguez was undeterred.

"As Jose said, the heat from destroying is nothing compared to what it would be if the tapes ever got into public domain — he said out of context, they would make us look terrible; it would be devastating to us," said an e-mail from an aide to the agency's No. 3 official, Kyle "Dusty" Foggo.

Such statements could be used as evidence if prosecutor John Durham seeks charges in the case. Even if Rodriguez genuinely worried about the safety of his officers and wasn't trying to obstruct an investigation, if he feared the tapes might someday be made public, that could be enough to violate the Sarbanes-Oxley obstruction law.

As the case winds down, McPherson, who reviewed the tapes in 2003, again has been thrust into a central role. McPherson has received immunity in exchange for cooperating with prosecutors, an unusual protection for a government lawyer.

CIA spokesman George Little said the agency is cooperating with investigators.

Rodriguez, now an executive with contractor Edge Consulting, a job that regularly gives him access to the national intelligence director's office and CIA headquarters, still hasn't received an official retirement party.