NY Times | Jul 3, 2009
By MARK MAZZETTI
WASHINGTON — Current and former top Central Intelligence Agency officers have appeared before a federal grand jury in Virginia as part of an 18-month investigation into the agency’s destruction of 92 videotapes depicting the brutal interrogations of two Qaeda detainees.
The witnesses recently called by the special prosecutor, former government officials said, include the agency’s top officer in London and Porter J. Goss, who was C.I.A. director when the tapes were destroyed in November 2005.
The grand jury testimony of C.I.A. officers is further evidence that, despite President Obama’s pledge not to punish agency operatives for their role in the detention and interrogation of terrorism suspects, the shadow of the controversial program still looms over the agency’s daily operations.
The court appearances are tied to a criminal investigation led by John L. Durham, whom the Justice Department appointed in January 2008 to investigate the destruction of the tapes. The tapes had shown C.I.A. officers using harsh interrogation methods, including waterboarding, on two detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri.
Mr. Durham has shrouded his investigation in a level of secrecy rare even by the normally tight-lipped standards of special prosecutors, and after 18 months it is still difficult to assess either the direction or the targets of his investigation.
Current and former intelligence officials say the tapes were ordered destroyed by Jose A. Rodriguez Jr., then the head of the C.I.A.’s clandestine branch. Mr. Rodriguez had worried that the tapes might be leaked and put undercover operatives in legal and physical jeopardy.
One top C.I.A. officer who recently appeared before Mr. Durham’s grand jury is the agency’s station chief in London, who had worked with Mr. Rodriguez when he led the agency’s Counterterrorism Center and who eventually became his chief of staff at the clandestine branch.
Because she remains undercover, The New York Times is not publishing her name. She is said by former agency officers to have helped carry out Mr. Rodriguez’s order to destroy the tapes.
The tapes had been kept in a safe at the C.I.A. station in Thailand, the country where the interrogations took place.
Mr. Goss, whom President George W. Bush removed from the C.I.A in May 2006, is said by several former C.I.A. officials to have opposed the destruction of the tapes.
Mr. Rodriguez has not yet testified before the grand jury, two former C.I.A. officers said.
In a court filing last year, Mr. Durham indicated he planned to wrap up interviews for the investigation by late February, but Obama administration officials have indicated more recently that Mr. Durham could continue his work through the summer. One reason for the pace of the investigation, officials said, is that the grand jury convenes only once a month to hear testimony.
The current and former government officials interviewed for this article all spoke on the condition of anonymity because they were discussing details of a continuing criminal investigation.
Besides the question of who at the C.I.A. and White House might have authorized the destruction of the tapes, Mr. Durham is investigating the legal guidance Mr. Rodriguez received before giving the order. One issue is whether the agency might have broken the law by destroying tapes that could have been introduced as evidence in federal trials.
Mr. Rodriguez told colleagues at the time that two lawyers inside the agency’s clandestine branch, Steven Hermes and Robert Eatinger, had advised him that there was no legal impediment to destroying the tapes and that he had the authority to give the order.
But the advice of the two lawyers was careful, the former officials said, and they never gave official approval for the tapes’ destruction.
The C.I.A. never disclosed the existence of the tapes to either the Sept. 11 commission or federal courts that had been hearing the cases of Qaeda suspects in American custody.
At the time the tapes were destroyed, lawyers for Zacarias Moussaoui, the so-called 20th hijacker in the Sept. 11 plot, were seeking information from the Bush administration about the interrogation of Mr. Zubaydah that might have pertained to Mr. Moussaoui’s role in the 2001 attacks.
Some legal experts said Mr. Durham might have trouble building a criminal case around the role of the C.I.A. lawyers.
“It seems difficult to prove that lawyers had criminal intent,” said John Radsan, a former C.I.A. lawyer and federal prosecutor who now teaches at the William Mitchell College of Law in St. Paul, “and they didn’t have Rodriguez’s personal interest in getting rid of the tapes.”
“Incompetence does not equal obstruction of justice,” Mr. Radsan said.
As Mr. Durham’s investigation proceeds, the Obama administration has also been forced under a Freedom of Information Act lawsuit to make public a number of top-secret documents related to the C.I.A. detention program.
On Thursday, the Justice Department sent a letter to a judge in New York saying that it would need until Aug. 31 to produce a copy of a 2004 report by the agency’s inspector general detailing a number of abuses at C.I.A. prisons overseas.