Omission cited in destruction of interrogation videos

Officer left names of lawyers off note

CIA officer Jose Rodriguez ordered the destruction of the videos in 2005. CIA officer Jose Rodriguez ordered the destruction of the videos in 2005. (Associated Press/ CIA)
By Matt Apuzzo
Associated Press / July 26, 2010

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WASHINGTON — When the CIA sent word in 2005 to destroy scores of videos showing waterboarding and other harsh interrogation tactics, there was an unusual omission in the carefully worded memo: the names of two agency lawyers.

Once a CIA lawyer has weighed in on even a routine matter, officers rarely give an order without copying the lawyer in on the decision. It’s standard procedure, a way for managers to cover themselves if a decision goes bad.

But when the CIA’s top clandestine officer, Jose Rodriguez, told a colleague at the agency’s secret prison in Thailand to destroy interrogation videos, he left the lawyers off the note.

Interviews with current and former US officials and others close to the investigation show that Rodriguez’s order was at odds with years of directives from CIA lawyers and the White House.

Rodriguez knew there would be political fallout for the decision, according to documents and interviews, so he sought a legal opinion in a way to gain needed legal cover to get the tapes destroyed, but not so much that anyone would stop him.

The destruction of the tapes wiped away the most graphic evidence of the CIA’s now-closed network of overseas prisons, where suspected terrorists were interrogated for information using some of the most aggressive tactics in US history.

Critics of that George W. Bush-era program point to the tapes’ destruction and say his administration was trying to cover its tracks, but the reality is more complex.

The decision by Rodriguez to leave the lawyers he had consulted off his cabled order to destroy the tapes was so unusual that a top CIA official noted it in an internal e-mail just days later. The omission is now an important part of the Justice Department’s 2 1/2-year investigation into whether destroying the tapes was a crime.

Prosecutors have focused on a little-used section of the 2002 Sarbanes-Oxley accounting law that makes it illegal to destroy documents, even if no court has ordered them kept and no investigator has asked for them.

Rodriguez, who wasn’t disciplined for what some former officials told prosecutors amounted to insubordination, is frequently back at CIA headquarters as a contractor.

The Associated Press has compiled an account of how the tapes were destroyed, a narrative that among other things underlines the challenges prosecutors face in bringing charges.

Most of the people interviewed spoke on condition of anonymity because of the continuing investigation. Some of the officials directly involved declined comment or were unavailable.

Taping CIA interrogations is unusual, but the 2002 captures of Al Qaeda operatives Abu Zubaydah and Rahim al-Nashiri were unusual cases. The CIA wanted to unravel Al Qaeda from within and the Bush administration allowed increasingly severe tactics to try to ensure cooperation.

Officers began videotaping to prove that Zubaydah arrived in Thailand wounded and to show they were following Washington’s new interrogation rules.

Almost as soon as taping began, officials began discussing whether to destroy the tapes. Dozens of officers and contractors appeared on the tapes. If those videos surfaced, officials feared, nearly all those people could be identified.

In November 2002, CIA lawyer John L. McPherson was assigned to watch the videos and compare them with written summaries. If the reports accurately described the videos, that would bolster the case that the tapes were unnecessary.

Several of the 92 videos had been taped over, so the quality was poor. Others contained gaps. When one tape ran out, documents show, interrogators didn’t always immediately insert a new one. Many contained brief interrogation sessions followed by hours of static.

McPherson concluded in January 2003 that the summaries matched what he saw. With that assurance, the CIA planned to destroy the tapes. But lawmakers who were briefed on the plan raised concerns, and the CIA scrapped the idea, agency documents show.

The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance.

Near the end of a May 2004 meeting between CIA general counsel Scott Muller and White House lawyers, the conversation turned to the scandal over photos of abuse in the military’s Abu Ghraib prison in Iraq.

National Security Council lawyer John Bellinger’s question was almost offhand: Does the CIA have anything that could cause a firestorm like Abu Ghraib?

Yes, Muller said.

David Addington, a former CIA lawyer who was Vice President Dick Cheney’s legal counsel, was stunned that videos existed, officials said. But he told Muller not to destroy them, and Bellinger and White House counsel Alberto Gonzales agreed, according to documents and interviews with former officials.

That order stood for more than a year. Muller’s successor, John Rizzo, received similar instructions from the next White House counsel, Harriet Miers: Check with the White House before destroying the tapes.

Despite the White House orders, momentum for destroying the tapes grew again in late 2005 as the CIA Thailand station chief, Mike Winograd, prepared to retire.

Winograd had the tapes and believed they should be destroyed, officials said. At CIA headquarters, Rodriguez and his chief of staff agreed.

On Nov. 4, 2005, Rodriguez asked CIA lawyer Steven Hermes whether Rodriguez had the authority destroy the tapes. Hermes said Rodriguez did, according to documents and interviews. Rodriguez also asked CIA lawyer Robert Eatinger whether there was any legal requirement to keep the tapes. Eatinger said no.

Both Eatinger and Hermes remain with the agency and were unavailable to be interviewed. But both told colleagues they believed Rodriguez was merely restarting the discussion. Because of previous orders not to destroy the tapes, they were unaware Rodriguez planned to move immediately, officials told the AP.