CIA Tapes May Spark Criminal Investigation

Despite the CIA's claims that videotapes of the interrogation of two detainees were "not relevant," the Justice Department has started a preliminary inquiry into the destruction of the tapes.

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There's been more fallout this weekend from the CIA's destruction of videotaped interrogations of two suspected terrorists. The Justice Department has announced that it has started a preliminary inquiry. The department is working with the CIA's internal watchdog to determine whether there are grounds for further criminal investigation.

NPR's Ari Shapiro has details.

ARI SHAPIRO: This sort of preliminary inquiry does not guarantee that a criminal investigation will follow. But former Justice Department officials from both parties will tell you…

Mr. ROBERT RABIN(ph): There is going to be an investigation.

SHAPIRO: That's Democrat Robert Rabin. Here's Republican David Rivkin.

Mr. DAVID RIVKIN (International Law Expert): There clearly will be an investigation. The question is by whom.

SHAPIRO: And in case you're still not convinced, do you think that a criminal investigation is a foregone conclusion?

Mr. MICHAEL BROMWICH (Former Inspector General, Department of Justice): Yes, I do.

SHAPIRO: Michael Bromwich was the Justice Department's most recent inspector general.

That consensus might sound surprising if you read CIA Director Michael Hayden's statement to agency employees last week. He said the agency only destroyed the interrogation videotapes, quote, "after it was determined they were no longer of intelligence value and not relevant to any internal legislative or judicial inquiries."

In other words, they were not destroying evidence. They were not obstructing justice.

Professor SAM BUELL (Law, Washington University; Former Prosecutor, Department of Justice, Enron Task Force): It's not clear to me that the Justice Department or, you know, any given investigator would necessarily take the CIA at its word as to why these tapes were destroyed.

SHAPIRO: That's Sam Buell, one of the prosecutors in the Enron case. He now teaches law at Washington University in St. Louis.

Prof. BUELL: You don't normally decline to do an investigation just because somebody has a press conference and says, we weren't doing this for a wrongful purpose.

SHAPIRO: And Aziz Huq of NYU's Brennan Center for Justice says there were lots of red flags that should have prevented the tapes' destruction - warnings from the White House Counsel's office and from at least one member of Congress not to trash the videos.

Mr. AZIZ HUQ (Deputy Director, Brennan Center for Justice, New York University): There are criminal statutes that prevent the destruction of material that plausibly could be related to a criminal or any other kind of governmental investigation. So there's a potential criminal conduct they've taken.

SHAPIRO: Huq would like the attorney general to appoint a special prosecutor to oversee the investigation. After all, he says, the Justice Department approved some of the harsh interrogation tactics believed to be in the videos. And department prosecutors said in court that there were no interrogation tapes.

Huq believes those facts compromise the department's ability to investigate this impartially. David Rivkin disagrees.

Mr. RIVKIN: What we know now doesn't involve any political people. So what? We're going to, from now on, investigate possibility that career people in the intelligence community done something funky. Will it always going to be investigated by special council? That's insane.

SHAPIRO: See, a special council's independence is a double-edged sword. Robert Rabin dealt with them during the Clinton administration, and he says it can be a good way to resolve conflicts of interest.

Mr. RABIN: Sadly though, the course of investigations is leery with special prosecutors who have gone far astray, who have created kind of an independent judiciary where they're setting rules on their own and it's costing the taxpayers tens of millions of dollars. A special prosecutor is in the panacea. A special prosecutor is an important opportunity to help resolve some of the internal conflicts.

SHAPIRO: Former Justice Department Inspector General Michael Bromwich does not think a special prosecutor is the way to go. But he says the call for the Justice Department to hand the reins over to someone else reflects a serious public distrust in the department's ability to be independent.

Mr. BROMWICH: I think that's extremely unfortunate. In order to restore the public's confidence in the Justice Department in a critical investigation like this I think there's going to have to be more transparency in the investigations than you normally find.

SHAPIRO: Congress has also begun its own investigation. Some Democrats on the House Judiciary Committee already sent a letter to the CIA director and the attorney general asking for more information.

Ari Shapiro, NPR News, Washington.

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Timeline: CIA and Interrogation Videotapes

Rep. Jane Harman (D-CA) i i

The CIA in 2003 informed Rep. Jane Harman (D-CA) — shown at a Capitol Hill press conference in May — of the tapes' existence. Alex Wong/Getty Images hide caption

itoggle caption Alex Wong/Getty Images
Rep. Jane Harman (D-CA)

The CIA in 2003 informed Rep. Jane Harman (D-CA) — shown at a Capitol Hill press conference in May — of the tapes' existence.

Alex Wong/Getty Images
Sen. Jay Rockefeller (D-WV) i i

Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) said panel members learned of the tapes' destruction in November 2006. Joe Raedle/Getty Images hide caption

itoggle caption Joe Raedle/Getty Images
Sen. Jay Rockefeller (D-WV)

Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) said panel members learned of the tapes' destruction in November 2006.

Joe Raedle/Getty Images
CIA Director Michael Hayden i i

CIA Director Michael Hayden, shown at a House Intelligence Committee in January, recently told agency employees that the CIA destroyed videotapes it made in 2002 of two top terrorism suspects because it was afraid that keeping them "posed a security risk." Win McNamee/Getty Images hide caption

itoggle caption Win McNamee/Getty Images
CIA Director Michael Hayden

CIA Director Michael Hayden, shown at a House Intelligence Committee in January, recently told agency employees that the CIA destroyed videotapes it made in 2002 of two top terrorism suspects because it was afraid that keeping them "posed a security risk."

Win McNamee/Getty Images

News that the CIA made and then destroyed videotapes of al-Qaida suspects undergoing harsh interrogations while in agency custody seemed to have come out of nowhere. However, the story has been unfolding for years, though largely out of public view. The controversy over the tapes spans several countries and involves Congress, federal prosecutors and the top leadership of the CIA.

Here are some of the key moments.

March 2002: Terrorism suspect Abu Zubaydah, allegedly a high-ranking member of al-Qaida, is captured in Pakistan and flown to an undisclosed CIA detention center. Zubaydah is said to be an organizer of the Sept. 11, 2001, attacks and a tcaop al-Qaida recruiter. The Bush administration portrays his capture as a major breakthrough.

2002: Abu Zubaydah and at least one other al-Qaida member are subjected to harsh interrogation techniques, possibly including waterboarding (controlled drowning), by their CIA captors. The agency videotapes several of these interrogations, partly to ensure that the techniques used are legal and partly to provide backup documentation of the information collected, according to CIA officials.

2003: The CIA's internal watchdog watches the videotapes and verifies that the interrogation practices were legal, according to CIA director Michael Hayden.

Also in 2003, the CIA informs Rep. Jane Harman (D-Calif.) and two other members of Congress of the tapes' existence.

August 2004: The 9/11 Commission completes its work on the terror attacks and the U.S. government's response to it. The commission had requested all relevant information from the CIA. But it never received videotapes of CIA interrogations conducted in 2002. An agency spokesman says the CIA "went to great lengths to meet the requests of the 9/11 Commission" and preserved the tapes in case the commission asked for them specifically.

2005: Lawyers representing terrorism suspect Zacarias Moussaoui make formal requests to the CIA for transcripts and other documentary evidence of the interrogation of agency prisoners. CIA lawyers tell prosecutors that the agency did not have such recordings.

Later in 2005, the CIA destroys at least two videotapes documenting the interrogation of two al-Qaida suspects in the agency's custody. The tapes showed CIA employees subjecting the suspects to harsh interrogation techniques. The tapes were reportedly destroyed at the request of Jose Rodriguez, then head of the agency's Directorate of Operations, its clandestine service.

November 2006: The Senate Intelligence Committee learns of the tapes' destruction, according to committee chairman Jay Rockefeller (D-WV).

December 2007: CIA Director Michael Hayden tells agency employees that the CIA destroyed videotapes it made in 2002 of two top terrorism suspects because it was afraid that keeping them "posed a security risk." If the tapes had become public, they would have exposed CIA officials "and their families to retaliation from al-Qaida and its sympathizers." Hayden makes the announcement hours after The New York Times informs the agency of its intention to publish a report about the tapes. Human rights groups and some members of Congress express outrage, accusing the agency of "destroying evidence." The Senate's second-ranking Democrat, Richard Durbin of Illinois, asks the Justice Department to investigate whether the CIA obstructed justice by destroying the videotapes.