2005 destruction of interrogation tapes caused concern at CIA, e-mails show

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By Peter Finn and Julie Tate
Washington Post Staff Writer
Friday, April 16, 2010

The 2005 destruction of 92 videotapes documenting the harsh interrogation of terrorism suspects at secret CIA prisons immediately prompted concern at agency headquarters that the decision was not adequately cleared and may have been improper, according to newly released documents.

A day after the destruction, Kyle "Dusty" Foggo, then the executive director of the CIA, was told that "we may have 'improperly' destroyed something," according to an e-mail. The message was written by Foggo's deputy, who remains undercover, according to a former intelligence official.

"There may have been some people who thought precise procedure wasn't followed, but I haven't heard of anyone who believed at the time that any law had been broken," said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. "That's quite a different thing."

In January 2008, then-Attorney General Michael B. Mukasey appointed Assistant U.S. Attorney John H. Durham to investigate the destruction of the tapes. In August 2009, Attorney General Eric H. Holder Jr. expanded that mandate to include the actions of CIA interrogators and contractors at "black site" prisons.

The tapes were destroyed on Nov. 9, 2005, a week after The Washington Post revealed the existence of CIA prisons overseas. Some CIA officers had long argued for the destruction of the tapes, but White House officials and members of Congress objected and said the tapes should be preserved.

Jose Rodriguez Jr., head of the directorate of operations at the CIA from 2004 to 2007, sent a cable authorizing the destruction of the tapes.

Foggo's deputy wrote that Rodriguez thought "the heat from destroying is nothing compared to what it would be if the tapes ever got into public domain -- he said that out of context they would make us look terrible; it would be 'devastating' to us."

The deputy wrote that after the fact, then-CIA Director Porter J. Goss, referred to as "PG" in the e-mail, "agreed with the decision." But there is no indication in the documents that Goss knew of the destruction before it occurred.

A spokesperson for Goss declined to comment, but a former CIA official said Goss "never authorized the destruction and thought it was unwise."

"Jose did not in the dark of night destroy these things; it was discussed within the agency and with Congress," said Robert Bennett, Rodriguez's attorney. "He deserves a medal, not an investigation."

The documents were released as part of an ongoing lawsuit brought by the American Civil Liberties Union to obtain government documents on the treatment of detainees. "These documents provide further evidence that senior CIA officials were willing to risk being prosecuted for obstruction of justice in order to avoid being prosecuted for torture," said Ben Wizner, an attorney in the ACLU's National Security Project.

A cable ordering the destruction of the tapes, which were held at an overseas location, was first drafted by a person who remains undercover and has been one of the subjects of Durham's investigation. That person has testified before a federal grand jury, sources have said. The documents suggest that that person may not have cleared the cable authorizing the destruction with either agency lawyers or the CIA's inspector general.

Foggo's deputy wrote that John A. Rizzo, then acting general counsel of the CIA, did not concur with the decision and that "it was never discussed with him."

"Rizzo is clearly upset," Foggo's deputy wrote. Rizzo said in a phone interview Thursday evening that he could "confirm the substance of the e-mails, which properly characterize my reaction."

Paul Gimigliano, a spokesman for the CIA, said: "The tapes were created in 2002 and destroyed in 2005. For more than two years, a Department of Justice prosecutor has been looking into the matter. The agency has cooperated fully with that inquiry and will, of course, continue to do so. We hope that this issue is resolved soon."


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