By Jerry Markon
Washington Post Staff Writer
Tuesday, November 9, 2010; 3:11 PM
The Justice Department will not file criminal charges over the destruction of CIA videotapes depicting the harsh interrogation of terrorism suspects, limiting the legal fallout from one of the Bush administration's most fraught legacies, officials said Tuesday.
After an exhaustive probe that lasted nearly three years, federal prosecutor John Durham concluded that he would not bring a criminal case against the CIA officers. The burning of the 92 tapes on Nov. 9, 2005, was authorized in a cable sent by Jose Rodriguez Jr., head of the agency's directorate of operations.
The tapes showed the interrogations of two high-profile detainees. Sources have said they depicted waterboarding, a form of simulated drowning that human rights groups and Obama administration officials say is torture.
"As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes," Justice Department spokesman Matthew Miller said.
Yet even as the government closed one chapter in the investigation of Bush administration interrogation practices after the Sept. 11, 2001, attacks, other parts of the probe remained open. Sources familiar with Durham's investigation said authorities have not ruled out filing charges against officials who may have misled investigators during the probe into the tapes' destruction.
Durham is also conducting a related, and potentially more explosive, investigation into whether CIA employees and contractors broke the law in conducting interrogations at "black site" prisons. Sources said that probe remains active.
The political debate over whether the Bush administration violated civil rights in the years after Sept. 11 or was only trying to protect Americans also showed no signs of ending. In an interview Monday with NBC News, former president George W. Bush defended the waterboarding of terrorism suspects. On Tuesday, human rights groups criticized the Justice Department's decision in the CIA videotapes case and cited what they called Bush's legacy of torture.
"This decision is stunning: There is ample evidence of a coverup regarding the destruction of the tapes,'' ACLU Executive Director Anthony D. Romero said. "The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did.''
C. Dixon Osburn, a spokesman for Human Rights First, said members of the group are "disappointed that the Justice Department has chosen not to pursue charges in this case" but "remain hopeful" that Durham's pending inquiries will produce criminal charges.
CIA Director Leon E. Panetta said that he welcomed the news and that the agency has cooperated with Durham's investigation from the start. "We will continue, of course, to cooperate with the Department of Justice on any other aspects of the former program that it reviews,'' he said.
But a former senior CIA operations officer, speaking on the condition of anonymity in order to comment freely, questioned the decision not to bring charges and said the tapes were not destroyed "in total innocence."
"To my understanding . . . there was a standing order from a federal judge that said not to destroy the tapes. That trumps any inside the CIA legal call," the ex-official said.
A spokesman for Durham declined to comment Tuesday, and Justice Department officials would not elaborate on Miller's statement. The statute of limitations on criminal charges for the destruction of the videotapes expired this week.
In January 2008, then-Attorney General Michael B. Mukasey appointed Durham, a federal prosecutor, to examine whether intelligence officials broke the law by destroying the videos.
The tapes cover the interrogations of Zayn al-Abidin Muhammed Hussein, an alleged facilitator of terrorism better known as Abu Zubaida, and Abd al-Rahim al-Nashiri, a Saudi suspected of involvement in the October 2000 bombing of the USS Cole as it docked for refueling in a Yemeni port. Sources said the tapes showed waterboarding of the two suspects, along with more mundane shots of them in their cells.
In August 2009, Attorney General Eric H. Holder Jr. expanded Durham's mandate to include the actions of CIA interrogators and contractors. Sources have said that probe is focused on a few cases of alleged detainee abuse, including at least one in which an Afghan prisoner died at a secret CIA facility after being beaten and chained to a concrete floor.
The decision to expand Durham's investigation triggered vehement criticism from Republicans and some former CIA officials, who said it could hamper intelligence operations.
The Washington Post reported in March that Durham's probe of the videotapes' destruction was winding down and that investigators were encountering legal roadblocks in bringing a case.
CIA officials have long said the motive was innocent: After the emergence of widely reviled images of detainee abuse at the Abu Ghraib prison in Iraq, CIA veterans feared that disclosing the videotapes could put the interrogators' safety at risk if their identities became known.
Durham's team of prosecutors and FBI agents have been exploring whether the tapes were instead destroyed in anticipation of a congressional or federal investigation, which could constitute a crime. Sources familiar with the probe described on Tuesday a relentless investigation, in which Durham brought CIA lawyers, operatives and others before a federal grand jury and probed for inconsistencies in their accounts. Some witnesses testified four or five times, sources said.
But sources have said authorities found it difficult to pinpoint the motivation for destroying the tapes, and that it was difficult to prove criminal intent.
Rodriguez, a top CIA official from 2004 to 2007, authorized the tapes' destruction and has been a key focus of the inquiry. Sources said Tuesday that he will not be charged.
Robert S. Bennett, an attorney for Rodriguez, said he is "pleased that the Justice Department has decided not to go forward against Mr. Rodriguez. This is the right decision because of the facts and the law.''
"Jose Rodriguez is an American hero, a true patriot who only wanted to protect his people and his country," Bennett said.
John A. Rizzo, the CIA's former acting general counsel, said in an e-mail that the Justice Department's announcement "will come as a relief to the agency and the many innocent employees who found themselves ensnared in this nearly three-year investigation." Rizzo was not made aware of the decision to destroy the tapes and has said he was angered by it.
Staff writer Jeff Stein and staff researcher Julie Tate contributed to this report.