By Dan Eggen and Joby Warrick
Washington Post Staff Writers
Saturday, December 8, 2007
Democratic lawmakers yesterday angrily demanded a Justice Department investigation into the CIA's decision to destroy videotapes of harsh interrogation tactics used on two terrorism suspects.
The White House said that President Bush was unaware of the tapes or their destruction until this week, but administration sources acknowledged last night that longtime Bush aide Harriet E. Miers knew of the tapes' existence and told CIA officials that she opposed their destruction.
The Senate intelligence committee also announced the start of its own probe into the destroyed videotapes, said Chairman John D. Rockefeller IV (D-W.Va.).
"We do not know if there was intent to obstruct justice, an attempt to prevent congressional scrutiny, or whether they were simply destroyed out of concern they could be leaked," Rockefeller said. "Whatever the intent, we must get to the bottom of it."
The uproar in Congress followed Thursday's disclosure by CIA Director Michael V. Hayden that the agency had videotaped the interrogations of two al-Qaeda suspects in 2002 and destroyed the tapes three years later. Hayden and other officials said one of the detainees was Abu Zubaida, a close associate of Osama bin Laden.
The other was identified last night by a knowledgeable U.S. official as Abd al-Rahim al-Nashiri, who was captured in November 2002 in the United Arab Emirates. Nashiri complained earlier this year, in documents filed for his military tribunal hearing at Guantanamo Bay, Cuba, that he had been tortured into confessing to various terrorist acts and plots. Several alleged acts of torture are redacted from the document.
It is not clear which tactics are shown on the videotapes. Abu Zubaida has been identified by intelligence officials as one of three detainees subjected to waterboarding, an aggressive interrogation technique that simulates drowning.
Hayden said in a letter to CIA personnel that the decision to destroy the tapes was made out of concern that interrogators could be identified if the tapes were leaked.
But Democratic lawmakers, defense lawyers and civil liberties advocates scoffed at that explanation yesterday, arguing that the disclosure suggested an attempt by the CIA to cover up possibly illegal conduct in the face of specific requests for records, including video or audio tapes, from federal courts and from the independent commission that investigated the Sept. 11 attacks.
Senate Majority Whip Richard J. Durbin (D-Ill.) urged Attorney General Michael B. Mukasey in a letter yesterday to investigate "whether CIA officials who destroyed these videotapes and withheld information about their existence from official proceedings violated the law."
Justice spokesman Dean Boyd said the department was reviewing Durbin's request but had no other comment.
Sen. Carl M. Levin (D-Mich.) called Hayden's reasoning a "pathetic excuse" and said, "You'd have to burn every other document at the CIA that has the identity of an agent on it under that theory."
Democrats and the administration also clashed over the extent of briefings provided to Congress about the tapes.
The CIA says the Senate intelligence committee, for example, was first told of plans to destroy the tapes in February 2003 and was then informed during a closed hearing in November 2006 that the destruction had been carried out.
But Rockefeller said his panel "has located no record of either being informed of the 2003 CIA decision or being notified late last year of the tapes having being destroyed." A review of a transcript of the November 2006 hearing also makes no mention of destroying tapes, Rockefeller said.
On the House side, Rep. Jane Harman (Calif.), who was previously the ranking Democrat on the House intelligence committee, said she warned the CIA's general counsel after a classified briefing in 2003 not to destroy any videotapes related to the agency's "enhanced interrogation program."
CIA officials said the agency never turned over the videotapes to the Sept. 11 commission because the panel did not specifically request them. But several members and staffers, including the panel's Republican co-chairman, disputed that claim yesterday and said the CIA's failure to disclose the tapes was in defiance of commission demands.
"That just doesn't hold water, because we asked for everything," said former New Jersey governor Thomas H. Kean, who was the panel's co-chairman. "They told us we had everything they had on the detainees. . . . You don't expect not to be told the truth, but we weren't told the truth."
The panel's former general counsel, Daniel Marcus, said CIA representatives told the commission that videotapes and interrogation transcripts did not exist for detainees linked to the 2001 attacks.
White House press secretary Dana Perino told reporters that Bush "has no recollection of being made aware of the tapes or their destruction" before he was briefed on the issue by Hayden on Thursday.
Perino said she could not rule out other White House involvement in the decision because she had asked only the president about it. The CIA is reviewing the case with help from White House lawyers, she said.
Miers was White House deputy chief of staff for policy when she was informed of the CIA's intention, administration sources said. She told the CIA that she opposed destroying the tapes, the sources added.
CIA officials have said that Jose A. Rodriguez Jr., then the director of clandestine operations, ordered their destruction in November 2005, and administration sources said last night that Miers, who was then White House counsel, learned of the order after it was carried out. News of Miers's knowledge was reported last night by ABC News.
A White House spokesman had no comment when asked about Miers and the tapes.
In separate letters to Mukasey and Hayden, House Judiciary Committee Chairman John Conyers Jr. (Mich.) and other committee Democrats said that "withholding of evidence sought in fact-finding or criminal investigations could amount to obstruction of justice."
The lawmakers also asked whether the Justice Department reviewed or approved of the destroying the tapes.
In the case of al-Qaeda operative Zacarias Moussaoui, prosecutors revealed in October that the CIA had discovered two videotapes and one audiotape of detainee interrogations, after saying that no such tapes existed. CIA officials say the tapes that were destroyed were not related to Moussaoui's request for material relevant to his case, however.
Abu Zubaida's interrogation played a role in the case against another alleged al-Qaeda operative, Jose Padilla, who is set to be sentenced in Miami early next year on terrorism charges.
Staff writers Peter Baker and Walter Pincus and staff researcher Julie Tate contributed to this report.