Lost tapes may entangle CIA

In reconstructing the events leading up to Sept. 11, 2001, the blue-ribbon commission investigating the terrorist attacks got a lot of help from the CIA.

The agency summarized intelligence reports about interrogations of suspects and even agreed to pose the commission’s questions to detainees. But the agency strictly prohibited personal contact with the detainees, even though the panel thought that seeing how they responded would help determine their credibility.

Now, it appears that the CIA withheld what would have been the next-best thing.

With its admission last week that it destroyed taped interrogations of terror suspects, the CIA has raised questions about whether its penchant for secrecy has spilled over into illegal conduct, to the detriment of congressional investigators, private litigants, and the Sept. 11 panel.

As a general matter, government agencies, like other institutions and individuals, are under a legal obligation to preserve relevant documents and information once it becomes apparent that they are of interest to official proceedings.

That legal principle has been established over the years and has been borne out in such cases as the Iran-Contra arms-for-hostages scandal during the Reagan administration and the 2002 indictment and conviction of accounting giant Arthur Andersen in the Enron debacle. Under the law, destruction of documents can be a form of obstruction of justice.

On Monday, a federal appeals court in New York heard arguments in an appeal by defendants in the 1998 bombings of U.S. embassies in East Africa who are challenging their conviction, in part on grounds that prosecutors failed to turn over the videotaped interrogation of a prime government witness.

In the view of many, the intense national interest in U.S. detention policies since the Sept. 11 attacks should have given the CIA fair warning that the interrogation tapes should have been preserved, not destroyed.

“They knew we wanted to see those guys,” said Daniel Marcus, the former general counsel of the commission and now a professor at American University law school in Washington.

“We may never have said the magic words” and specifically requested videotapes, he said. “But we made clear we wanted the best available evidence of what happened.”

But the Sept. 11 commission case also shows that such questions are a close call. The panel, appointed by the president and Congress, never specifically requested taped interviews. And all of its communications with the CIA were done on an informal basis rather than through subpoena.

That could militate against a finding of agency liability.

The Supreme Court in 2005 overturned the conviction of Arthur Andersen on the grounds that the government did not prove the firm destroyed documents with the intent of obstructing justice.

Andersen had argued that shredding documents was part of its document management system.

The CIA is facing multiple investigations stemming from the disclosure, and CIA Director Michael V. Hayden is scheduled to testify in closed session before members of the Senate Intelligence Committee today.

Hayden acknowledged last week that tapes were destroyed in 2005, saying they no longer had intelligence value and were not considered relevant to “internal, legislative, or judicial inquiries.”

The decision to destroy the tapes was made by the head of the CIA’s clandestine operations at the time, Jose A. Rodriguez Jr. Rodriguez is in the process of retiring from the agency. Current and former intelligence officials have said that both then-director Porter J. Goss and the office of the CIA general counsel had advised against destroying the tapes and were unaware that Rodriguez had decided to go ahead anyway.

Hayden has said that committees in both chambers of Congress were adequately informed of the situation. That kind of advance knowledge, and tacit acquiescence, of the decision to destroy the tapes would be key in any legal case.

But Hayden’s account is in dispute. A senior aide on the Senate Intelligence Committee said that the CIA had claimed that the committee was told in a closed hearing in November 2006 that the tapes were destroyed.

“We’ve read the transcript and there is no mention of the tapes,” the aide said.

On Monday, the House Intelligence Committee said it would open its own investigation into the destruction of the tapes, amid complaints from key members that they were never notified.

In his note to the CIA workforce Thursday, Hayden “implied that our committee had been properly notified about the destruction,” committee Chairman Silvestre Reyes (D-Texas) and Vice Chairman Peter Hoekstra (R-Mich.) said in a jointly issued statement. “Based on our review of the record, this does not appear to be true.”

The Justice Department and the CIA inspector general began a combined inquiry into the affair over the weekend. Investigators have not yet decided whether to open a formal criminal investigation.

The White House said Monday that it would no longer answer specific questions about the tapes. Press Secretary Dana Perino said White House counsel Fred F. Fielding ordered the news blackout.

She said White House employees also were directed by Fielding to preserve any documents or e-mails they have about the matter.

The tapes were destroyed when the agency’s harsh methods were coming under intense congressional and legal scrutiny.

Daniel Richman, a professor of criminal law at Columbia University law school in New York, said obstruction cases often were fought over what constitutes a pending proceeding.

He said that failing to preserve evidence because Congress had “a general, unarticulated interest in everything that executive agencies do” would not suffice.

Some legal experts said that the CIA would have difficulty arguing that it did not believe that the tapes might be relevant in that atmosphere, even if they had not been formally sought.

“With all the stuff going on, it is hard to believe that someone in possession of those tapes would not know that they had been or reasonably would be called for in an investigation or a proceeding,” said Henry Hockeimer, a former federal prosecutor now in private practice in Philadelphia.

Legal experts said that aside from potential criminal liability, the issue could flare in the military trials of detainees held at Guantanamo Bay, Cuba. The destroyed tapes depict interviews of Abu Zubaydah, an Al Qaeda operative linked to the Sept. 11 plot, and Abd al Rahim al Nashiri, a suspected mastermind of the 2000 bombing of the U.S. warship Cole in Yemen. The interrogations were conducted in 2002.

The agency apparently had second thoughts about the practice of videotaping. A U.S. intelligence official said the practice was discontinued later in 2002.

rick.schmitt@latimes.com

Times staff writer Greg Miller contributed to this report.