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At least three groups say they unsuccessfully demanded that the CIA hand over videotapes of suspected terrorist interrogations. After this week's revelations that two such tapes - at least two such tapes - were destroyed, experts are wondering whether there could be legal consequences for the CIA.
NPR's Ari Shapiro has that part of the story.
ARI SHAPIRO: The 9/11 Commission, the ACLU and the legal defense team for convicted terrorist Zacarias Moussaoui all say they wanted CIA interrogation tapes like the ones that were destroyed.
Here's Daniel Marcus, who is general counsel of the 9/11 Commission.
Mr. DANIEL MARCUS (General Counsel, 9/11 Commission): It was our understanding from our conversations with CIA officials throughout the existence of the commission that they did not have any transcripts or recordings of interrogations of the detainees. If we had known that they have these videotapes, we would have insisted on seeing them.
SHAPIRO: CIA spokesman Paul Gimigliano says the 9/11 Commission got lots of information about detainee interrogations and, quote, "the videos were not destroyed while the inquiry was active just in case the staff might ask about tapes at some point."
Commission General Counsel Marcus says the fact that the CIA did not hand over the videos probably did not land the agency in legal trouble.
Mr. MARCUS: I think the decision of the CIA in 2005 to destroy these videotapes, while it may not technically have been an obstruction of justice because there was no pending subpoena for those tapes, was a stunningly bad exercise of judgment by the agency.
SHAPIRO: The situation could be different in the case of 9/11 co-conspirator Zacarias Moussaoui. In that case, defense lawyers, such as Gerald Zirkin, asked for relevant videos of terrorist interrogations.
Mr. GERALD ZIRKIN (Lawyer): And all we were getting was we were getting summaries of hearsay statements of what witnesses were saying.
SHAPIRO: Justice Department prosecutors told the judge that there were no relevant videotapes.
Then, in October, prosecutors essentially said, oops, we found some tapes. That was the first blow to the Justice Department's reputation and credibility.
Defense Lawyer Zirkin sees this as a second.
Mr. ZIRKIN: They think that there is a problem anytime the government destroys evidence.
SHAPIRO: The CIA says the Moussaoui defense team's request was for specific named terrorist interrogations and that the tapes destroyed in 2005 were not relevant to the Moussaoui trial.
Former CIA official Mike Scheuer says if the Justice Department gave the court bad information, then the legal blame could fall to the CIA official who gave that information to the Justice Department.
Mr. MIKE SCHEUER (Former CIA Analyst): And the question, of course, comes down to did the person talking to the Department of Justice know he was misinforming them or was he just misinformed himself.
SHAPIRO: The third request for the interrogation videos came from the ACLU, in a Freedom of Information Act filing. A judge ordered the CIA to comply with that request before the agency destroyed the tapes in 2005. If a court finds that the CIA intentionally destroyed the tapes, knowing that a judge had ordered them to be given to the ACLU, that could be grounds for a contempt of court citation.
John Radsan used to work in the CIA general counsel's office, and he says you can draw an analogy here between the CIA and corporate investigations. Arthur Andersen, for example, got in major trouble when the company destroyed e-mails relevant to an ongoing investigation. But Radsan says one of the problems with the CIA is that the information is not all stored in one place.
Professor JOHN RADSAN (Former CIA Assistant General Counsel; Law, William Mitchell College of Law): Putting together the documents that are responsive is more an art than a science. We even have some files that are not computerized and it's - it takes special people to go and find those files and to make sure that we're trying to comply with whatever requests are made of the CIA.
SHAPIRO: The question remains whether other interrogation videos still exist. At least one human rights lawyer says her client regularly saw video cameras in the CIA prison where he was held. And after one interrogation, a prison doctor told the detainee, what you have to understand is you told them your side of the story and it was recorded.
Ari Shapiro, NPR News, Washington.
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