WASHINGTON - A review of classified documents by former members of the Sept. 11 commission shows that the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda, and were told by a top CIA official that the agency had "produced or made available for review" everything that had been requested.
The review was conducted earlier this month after the disclosure that in November 2005, the CIA destroyed videotapes documenting the interrogations of two Al Qaeda operatives.
A seven-page memorandum prepared by Philip D. Zelikow, the panel's former executive director, concluded that "further investigation is needed" to determine whether the CIA's withholding of the tapes from the commission violated federal law.
The two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said in interviews that their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission's inquiry.
Kean said the panel would provide the memorandum to the federal prosecutors and congressional investigators who are trying to determine whether the destruction of the tapes or withholding them from the courts and the commission was improper.
A CIA spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes, but that commission staff members never specifically asked for interrogation videos.
The review by Zelikow does not assert that the commission specifically asked for videotapes, but it quotes from formal requests by the commission to the CIA that sought "documents," "reports" and "information" related to the interrogations.
Kean, a Republican and a former governor of New Jersey, said of the agency's decision not to disclose the existence of the videotapes, "I don't know whether that's illegal or not, but it's certainly wrong." Hamilton, a former Democratic representative from Indiana, said that the CIA "clearly obstructed" the commission's investigation.
A copy of the memorandum, dated Dec. 13, was obtained by The
Among the statements that the memorandum suggests were misleading was an assertion made on June 29, 2004, by John E. McLaughlin, the deputy director of central intelligence, that the CIA "has taken and completed all reasonable steps necessary to find the documents in its possession, custody or control responsive" to formal requests by the commission and "has produced or made available for review" all such documents.
Both Kean and Hamilton expressed anger after it was revealed this month that the tapes had been destroyed.
However, the report by Zelikow gives them new evidence to buttress their views about the CIA's actions and will probably put new pressure on the Bush administration over its handling of the matter.
In an interview yesterday, McLaughlin said that agency officials had always been candid with members of the commission, and that information from the CIA proved central to their work.
"We weren't playing games with them, and we weren't holding anything back," he said. The memorandum recounts a December 2003 meeting between Kean, Hamilton, and George J. Tenet, then the director of central intelligence. At the meeting, it says, Hamilton told Tenet that the CIA should provide all relevant documents "even if the commission had not specifically asked for them."
According to the memorandum, Tenet responded by alluding to several documents that he thought would be helpful to the commission, but made no mention of existing videotapes of interrogations.
The memorandum does not draw any conclusions about whether the withholding of the videotapes was unlawful, but it notes that federal law penalizes anyone who "knowingly and willfully" withholds or "covers up" a "material fact" from a federal inquiry or makes "any materially false statement" to investigators.
Yesterday, the leaders of the Senate Judiciary Committee sent a letter to Mukasey and to Mike McConnell, the director of national intelligence, asking them to preserve and produce to the committee all remaining video and audio recordings of "enhanced interrogations" of detainees in American custody.
Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen Specter, Republican of Pennsylvania, the letter asked for an extensive search of the White House, CIA, and other intelligence agencies to determine whether any other recordings existed of interrogation techniques "including but not limited to waterboarding."