Key omission in memo to destroy CIA terror tapes

[July 27, 2010]  WASHINGTON (AP) -- 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.

Caption: This undated handout photo provided by the CIA shows Jose Rodriguez.  (AP photo/CIA)

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, sent a cable to the agency's secret prison in Thailand and told his station chief to destroy videotapes showing two terrorists being waterboarded, he left the lawyers off the memo.

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.

As that investigation appears to be nearing a conclusion, prosecutors have focused on a little-used section of the 2002 Sarbanes-Oxley law intended to prevent future Enron accounting scandals. The law makes it a crime to destroy documents, even if no court has said they must be kept and no investigators are looking 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.

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Videotaping interrogations is unusual at the CIA, but the capture and questioning of senior al-Qaida operative Abu Zubaydah and accused USS Cole bombing plotter Rahim al-Nashiri in 2002 were unusual cases. They presented a chance to unravel al-Qaida from within, and the Bush administration authorized increasingly severe tactics to try to ensure that the agency learned as much as possible of what they knew.

CIA officers at the secret prison began videotaping to show that Zubaydah arrived in Thailand with wounds from a firefight and to prove that interrogators followed broad new rules Washington had laid out.

Almost as soon as taping began, top officials at the agency's headquarters in Langley, Va., began discussing whether to destroy the tapes.

Many 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.

In November 2002, CIA lawyer John L. McPherson was assigned to watch the videos and compare them with summaries being sent to headquarters. If the reports -- called cables -- accurately described the videos, it would help support an argument that the tapes were unnecessary and could be destroyed.

The 92 tapes they compiled were poorly organized. Several had been taped over so the video quality was poor. According to documents released in a federal lawsuit, others contained gaps. When one tape ran out, interrogators didn't immediately insert a new one. Many tapes contained brief interrogation sessions followed by hours of static. Also, the tapes weren't time-stamped.

Nonetheless, McPherson, a former Naval officer, concluded in a January 2003 memo that the tactics described in the cables matched what he saw on the video. With that assurance, the CIA planned to destroy the tapes when the inspector general completed a review of the interrogation program.

But lawmakers who were briefed on the tapes pushed back. In February 2003 came a warning from Rep. Jane Harman, D-Calif., that destroying the videos would "reflect badly on the agency." The CIA's deputy director, James Pavitt, decided not to destroy them, agency documents show.

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

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CIA general counsel Scott Muller sat down for a regular meeting with White House lawyers in May 2004. Near the end of the meeting, the conversation turned to the growing scandal over photos of abuse at the military's Abu Ghraib prison in Iraq.

The question from National Security Council lawyer John Bellinger was almost offhand: The CIA isn't sitting on anything explosive like the Abu Ghraib pictures, right? Something that, if leaked, would create a firestorm?

Right?

Wrong.

David Addington, a former CIA lawyer who was Vice President Dick Cheney's legal counsel, was stunned when he heard about the videos, officials said. Why had the agency made the tapes in the first place, he asked? But he told Muller not to destroy them, and Bellinger and White House counsel Alberto Gonzales agreed, according to CIA documents and interviews with former officials familiar with the meeting.

That was the standing order for more than a year. When Muller left the agency that July, John Rizzo became acting CIA general counsel. In early 2005, Rizzo received a similar order from the new White House counsel, Harriet Miers. The CIA was not to destroy the tapes without checking with the White House first.

All the while, courts and lawmakers looking into detainee treatment were unknowingly coming close to the tapes, but the CIA always was a technicality away from having to reveal their existence:

• In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn't cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn't tell the court about his interrogation tape.

• A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

• A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. 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 broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

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Despite the standing orders from the White House not to destroy the tapes without checking with Bush officials, momentum for their destruction grew again in late 2005 as the CIA Thailand station chief, Mike Winograd, prepared to retire.

Winograd had the tapes in his safe and believed they should be destroyed, officials said. Back at Langley, Rodriguez and his chief of staff, whom the AP is not identifying because she remains undercover, agreed.

Winograd, who has been publicly identified as a retired CIA officer but has not been previously named in connection with the tapes case, did not return several messages seeking comment.

On Nov. 4, 2005, as the CIA scrambled to quell a controversy from a Washington Post story revealing the existence of the secret prisons, Rodriguez called two CIA lawyers.

To Steven Hermes, his lawyer in the clandestine service, Rodriguez asked 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.

Both Eatinger and Hermes remain with the agency and were not available to be interviewed. Both have told colleagues 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 AP.

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

On Nov. 8, Rodriguez sent his approval.

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.

But no one did.

"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.

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It was clear almost immediately that there would be repercussions.

The next day, a senior CIA officer -- whom the AP is identifying only as John because he is still with the agency -- wrote a pair of e-mails to his boss, Kyle "Dusty" Foggo, the agency's No. 3 official. Those e-mails provide the most complete account available of the fallout from the destruction within the CIA.

Rizzo was angry, and when he called Miers at the White House, Bush's counsel was livid. Goss agreed with the decision to destroy the tapes, John wrote, but predicted he'd get criticized for it.

"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," John's e-mail reads.

Such statements could be used as evidence if prosecutor John Durham, who is heading the Justice Department's investigation, 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 through Congress or the courts, that could be enough to violate the Sarbanes-Oxley obstruction law.

Nationwide, prosecutors have brought such a case only about a half dozen times. Durham has done it twice.

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

It's not clear what information he is providing, but he has intimate knowledge of the tapes, and as the CIA's former litigation chief, he probably would know whether destroying them was an effort to obstruct any of the agency's court cases.

It's not clear what information he is providing, but he has intimate knowledge of the tapes, and as the CIA's former litigation chief, he probably would have a well-informed opinion as to whether destroying them was an effort to obstruct any of the agency's court cases.

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

"This event occurred nearly five years ago and most of the details have been on the public record for some time," he said.

Rodriguez is assailed by those who see him as the key figure in a cover-up. He is hailed by many current and former colleagues as a hero who protected his officers' identities. After leaving the agency, he became senior vice president of CIA contractor Edge Consulting, a job that gives him access to the national intelligence director's office and Langley.

With the investigation still hanging over him, Rodriguez has yet to receive an official retirement party.

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Online:

CIA documents released by the ACLU:
http://bit.ly/9jGOrD and http://bit.ly/91Oz6O

[Associated Press; By MATT APUZZO and ADAM GOLDMAN]

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