The CIA officers who destroyed videotapes of harsh interrogations will not be charged with crimes, the Justice Department said Tuesday, but a special prosecutor continues to investigate whether treatment of Al Qaeda detainees crossed the legal line.
Jose A. Rodriguez, a 30-year CIA veteran who headed the agency's clandestine service, ordered his staff in November 2005 to destroy tapes of the interrogations of accused terrorists Abu Zubaydah and Abd al Rahim al Nashiri, against the advice of agency lawyers, according to a former CIA official involved in the matter.
Both detainees were subjected to waterboarding, a simulated drowning technique that had been approved under limited circumstances by Justice Department lawyers.
After a three-year investigation into the destruction of the tapes, special prosecutor John Durham decided not to file charges.
Durham had been appointed in January 2008 to examine the issue. In August 2009, Atty. Gen. Eric H. Holder Jr. expanded Durham's purview to investigate whether CIA officers violated the law in the course of the interrogations. A 2004 report by the agency's inspector general found that interrogators sometimes exceeded the legal guidance for how often certain techniques could be used.
Jay S. Bybee, the former head of the Justice Department's Office of Legal Counsel, testified in May before the House Judiciary Committee that the CIA went further than he had outlined as permissible in a widely criticized legal memorandum.
For example, Bybee said, his memo, co-written with attorney John C. Yoo, authorized waterboarding only if there were no "substantial repetitions."
CIA contractors used waterboarding 183 times on Khalid Shaikh Mohammed, the professed mastermind of the Sept. 11 attacks, according to the inspector general's report. Abu Zubaydah was waterboarded 83 times, the report said.
The interrogations took place in Thailand in 2002, and some 92 tapes of them were kept in a CIA safe there. The CIA did not give the tapes to the Sept. 11 commission, which had asked for records of detainee interrogations.
Rodriguez was considered a hero within the clandestine service for ordering the destruction of the tapes, which many officers feared would compromise the identities of undercover operatives. In 2008, he went to work for the National Interest Security Co., a private government contractor in Fairfax, Va., which was bought last year by IBM.
Robert S. Bennett, Rodriguez's attorney, said in a statement: "Jose Rodriguez is an American hero, a true patriot who only wanted to protect his people and his country."
But Anthony Romero, the executive director of the American Civil Liberties Union, issued his own statement that called the failure to file charges "stunning."
"The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did," Romero said.
The Justice Department announcement did not rule out the possibility that officers could be charged with lying to investigators in the matter, nor did it address the status of the investigation into the interrogations. That investigation has angered many current and former CIA officers, who say it sends a message that conduct sanctioned by one political administration can be criminalized by another.
Holder has said that those acting on legal advice will not be prosecuted, but left open the fate of interrogators found to have exceeded the boundaries of the legal advice.