The Justice Department and the CIA's Office of the Inspector General said Saturday that they had launched a joint inquiry into the CIA's controversial destruction of videotaped interrogations of two Al Qaeda suspects. The preliminary inquiry would be a first step in determining whether a full investigation and potential criminal charges were warranted.
The probe had been under discussion since shortly after CIA Director Michael V. Hayden disclosed Thursday that CIA officials had made the videotapes in 2002 and destroyed them three years later. The Justice Department has asked for an initial meeting with the CIA's legal staff and inspector general, John L. Helgerson, early this week.
"I welcome this inquiry, and the CIA will cooperate fully," Hayden said Saturday in a statement. "I welcome it as an opportunity to address questions that have arisen over the destruction back in 2005 of videotapes."
Hayden's disclosure, made in a letter to employees, has caused an uproar in Congress and among some human rights advocates and defense lawyers. Many have called for investigations, charging that the agency lied about the tapes' existence and then destroyed them to cover up evidence of extremely harsh, possibly illegal interrogations.
One staffer on the Senate Judiciary Committee, speaking on condition of anonymity because the inquiry is ongoing, said the CIA's actions could amount to obstruction of justice and false testimony to Congress -- both federal crimes -- because the agency did not turn over requested interrogation tapes to the congressionally appointed Sept. 11 commission.
The CIA has agreed to "preserve any records or other documentation that would facilitate this inquiry," Asst. Atty. Gen. Kenneth L. Wainstein, head of the Justice Department's national security division, said in a letter Saturday to the CIA's acting general counsel, John A. Rizzo.
At least one member of Congress and, reportedly, a senior White House official claim to have told the CIA to preserve the tapes before they were destroyed.
"Everybody from the top on down told them not to do it and still they went ahead and did it anyway," a senior U.S. official familiar with the internal discussions said Saturday. The fact that the tapes were destroyed despite those warnings figures prominently in the inquiry, the official said.
The decision to destroy the tapes was reportedly made by the head of the CIA's clandestine operations at the time, Jose A. Rodriguez Jr.
Democratic leaders demanded Friday that Atty. Gen. Michael B. Mukasey order a full Justice Department probe. It was unclear Saturday what role Mukasey played in the launching of the inquiry.
House Intelligence Committee Chairman Silvestre Reyes (D-Texas) said Saturday that the inquiry would be "an important first test for Atty. Gen. Mukasey." He said his committee would begin its own probe, also reviewing "what was depicted on the tapes -- the interrogation practices that were authorized at the highest levels of government."
The Senate Intelligence Committee has announced an inquiry as well.
The White House said Saturday that it supported the Justice-CIA inquiry.
Justice Department spokesman Brian Roehrkasse said he could not comment on any aspect of the inquiry except to say it would focus foremost on the circumstances surrounding the destruction of the tapes.
"We are just beginning and gathering the initial facts," he said.
In Hayden's letter to employees Thursday, the CIA director implied that one of the videotaped interrogations was of Abu Zubaydah, a senior Al Qaeda lieutenant captured in Pakistan in March 2002. The second suspect was identified Saturday as Abd al Rahim al Nashiri, a suspected mastermind of the 2000 bombing of the USS Cole warship in Yemen.
A U.S. intelligence official said Saturday that the CIA did not videotape the interrogations of any other suspected senior Al Qaeda operatives. The practice was discontinued sometime in 2002.
Hayden's letter said the sessions were taped for the legal protection of interrogators using harsh new procedures to get Zubaydah and other defiant prisoners to talk.
Hayden also said that the Office of the Inspector General examined the tapes in 2003 "as part of its look at the agency's detention and interrogation practices," but he did not say whether the office approved of what was on the tapes.
And Hayden said that the existence of the tapes was disclosed to congressional oversight committees "years ago," and that the agency later notified the panels of the tapes' destruction.
They were destroyed, he said, out of concern that the tapes would leak someday and reveal the identities of interrogators. And they were destroyed only after the agency concluded the tapes were "not relevant to any internal, legislative or judicial inquiries," he said.
The current chairman of the Senate Intelligence Committee, John D. Rockefeller IV (D-W.Va.), said he was never shown the videotapes and was given only limited information about their existence. Rockefeller said there was no record the committee had been told about the destruction of the tapes.
The tapes were made under CIA Director George J. Tenet and were destroyed under his successor, Porter J. Goss.
The joint inquiry is expected to focus on whether evidence exists to suggest that the CIA broke laws or agency guidelines by destroying the tapes or by failing to provide them to government officials and others who had asked for them.
Representatives of the Sept. 11 commission and defense lawyers in at least two high-profile terrorism prosecutions contend that they had requested such material.
Another avenue of inquiry is said to be whether the CIA withheld evidence of the interrogation tapes and their destruction from Justice Department prosecutors in those terrorism cases -- involving suspected 20th hijacker Zacarias Moussaoui and Jose Padilla -- and perhaps other cases.
If the inquiry determines that a full investigation is merited, Justice Department officials could also look into whether the CIA improperly or illegally eliminated evidence of torture by destroying the videotapes. One Justice Department official said Saturday that such an investigation would be more suited to the CIA's inspector general.
Helgerson, the inspector general, could not be reached for comment but in the past has refused to discuss his inquiries. The inspector general by law is an independent watchdog, appointed by the president, and Helgerson in the past has been harshly critical of the agency's actions, including its interrogation and detention practices.
"I don't think they had much choice" but to launch such an inquiry, said Philip D. Zelikow, executive director of the Sept. 11 commission, which investigated intelligence failures leading up to the Sept. 11 attacks.
The commission concluded its work in 2004, before the tapes were destroyed.
Zelikow said Saturday that the commission had made clear to the CIA, in formal written requests and informal verbal ones, that it wanted all information about the interrogations of such high-value detainees, including recordings.
In recent days, the CIA has disputed those assertions, and Zelikow said commission staffers would soon retrieve their materials from the National Archives to determine exactly what was requested from the CIA and how the agency responded.
Jennifer Daskal, senior counter-terrorism counsel for Human Rights Watch, said the CIA "was well aware that its interrogations crossed a line considered by many to be torture."
"Now some in the CIA may also be guilty of obstruction of justice as well -- a serious felony that carries a possible 20-year sentence," Daskal said. "Those who have committed crimes should be prosecuted and convicted.
"Certainly we welcome the fact that there is going to be an investigation, and we hope that it is thorough and probing."