washingtonpost.com
White House Lawyers Told Of Videotapes
CIA Chief Says They Urged Caution in Destroying Tapes

By Michael Abramowitz and Joby Warrick
Washington Post Staff Writers
Thursday, December 20, 2007

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney's chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden's closed-door testimony before the Senate intelligence committee.

When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden's testimony. Another source said that Harriet E. Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.

The ambiguity in the phrasing of Hayden's account left unresolved key questions about the White House's role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed.

Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.

According to CIA officials, the videos recorded the response of two top al-Qaeda figures incarcerated in 2002 at secret prisons to a simulated-drowning technique known as waterboarding, as well as other "enhanced techniques" meant to pry loose secret information about terrorist plans.

The tapes were destroyed in November 2005, after the secret prisons' existence was disclosed by The Washington Post, in what the CIA says was a security measure intended to protect the identities of agency officers who participated in the interrogations.

The disclosures about Hayden's testimony came as the CIA, faced with a threat of congressional subpoenas, announced that it would begin turning over documents related to the tapes to oversight committees as early as today. Reversing an administration decision last week to defer any cooperation with Congress, the CIA also said it will comply with lawmakers' requests to allow its officers to testify about the tapes.

Rep. Sylvestre Reyes (D-Tex.), who chairs the House intelligence committee, said yesterday that he will schedule a hearing for Jan. 16. He said he expects testimony from John A. Rizzo, the CIA's general counsel, and Jose A. Rodriguez Jr., its former director of operations and the official said to have made the decision to destroy the tapes.

"Subpoenas have been prepared. We hope we don't have to use them," Reyes said.

His committee has requested a broad range of documents related to the tapes, as well as copies of memos and notes from the agency's internal debate of nearly three years over whether to destroy them. A CIA spokesman said the agency is already preparing to transmit the materials to Congress.

"We will work to make sure the committee knows everything it needs to know," the official said.

Miers, the White House counsel at the time of the briefings, was previously known to be involved in discussions of the tapes. Hayden's testimony expanded the number of White House officials alerted to their existence and the CIA's interest in destroying them.

Hayden's message to lawmakers last week was that the White House officials neither advocated destroying the tapes nor counseled against their destruction.

Hayden became CIA director in May 2006, after the tapes were destroyed. The ambiguity in his account of the White House briefings may be partly explained by his reliance on the recollections of others -- chiefly, agency lawyers whose decisions are now under congressional scrutiny, said one former senior attorney for the agency. "People are trying to recall stuff that happened four or five years ago," said the official, who spoke on the condition of anonymity. "They are trying to speak with honesty and candor, but they are also having to get 'lawyered' up themselves -- they have to protect themselves."

Congress and the Justice Department are investigating the handling of the tapes as possible obstruction of justice. A federal judge has scheduled a hearing on Friday into whether the CIA's action violated orders to preserve evidence relevant to lawsuits filed by prisoners in detention at the U.S. military prison at Guantanamo Bay, Cuba.

The two al-Qaeda operatives -- Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, and Abd al-Rahim al-Nashiri -- were interrogated by the CIA before being transferred to Guantanamo Bay in 2006.

The New York Times first disclosed in yesterday's editions the involvement of all four White House officials in discussions about the tapes.

But White House officials reacted angrily to the newspaper's suggestion that they had not previously acknowledged being as deeply involved in the deliberations, taking particular issue with part of the headline on the article -- "White House Role Was Wider Than It Said." Spokeswoman Dana Perino said the White House had never officially described what its role was.

"The New York Times' inference that there is an effort to mislead in this matter is pernicious and troubling," Perino said in a statement.

Catherine Mathis, a spokeswoman for the Times, said in an e-mail that the headline could have been written with more precision and that a correction is forthcoming. But she noted that the White House had not challenged the accuracy of the article.

Perino and a spokeswoman for Vice President Cheney otherwise declined to comment on the involvement of the four officials, noting the ongoing investigations.

Meanwhile, the Bush administration's nominee for deputy attorney general told the Senate Judiciary Committee yesterday he would have advised the CIA to preserve the interrogation tapes, regardless of whether they were technically subject to a court order.

U.S. District Judge Mark Filip of Chicago testified that in addition to telling CIA officials "what their legal responsibilities were," he also would have given them "broader, more prudential sort of advice."

"It might be the better practice to keep those, in any event, given the nature of the interests at stake, in terms of the subject matter that was on the tapes," Filip said.

But Filip also echoed the remarks of his potential boss, Attorney General Michael B. Mukasey, by refusing to say whether waterboarding amounts to illegal torture.

Staff writer Dan Eggen contributed to this report.

View all comments that have been posted about this article.

© 2007 The Washington Post Company