Democrats demand probe into destruction of tapes

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Key members of Congress on Friday called for multiple investigations into the CIA’s destruction of interrogation videotapes, charging the agency may have eliminated evidence of torture, obstructed justice or engaged in an illegal coverup.

The CIA’s disclosure that it had destroyed tapes showing harsh interrogations of terrorism suspects rekindled the emotional controversy surrounding U.S. practices and threatened to reopen the tense confrontation between Congress and the Bush administration that began more than three years ago.

Democratic leaders demanded Friday that Atty. Gen. Michael B. Mukasey order a full Justice Department probe into whether the CIA had acted illegally in destroying the tapes, which recorded interrogations of two terrorism suspects.

“We haven’t seen anything like this since the 18 1/2 -minute gap in the tapes of President Richard Nixon,” Sen. Edward M. Kennedy (D-Mass.) said in a blistering speech on the Senate floor. A Justice Department spokesman said the congressional requests for an investigation were under review.

At the same time, the top Democrat on the Senate Intelligence Committee said the panel already had opened its own probe of the matter and challenged a CIA assertion that key lawmakers had been briefed on the decision to dispose of the recordings.

“I was not told of the CIA’s decision to destroy the tapes, and I was not aware of their destruction until yesterday’s press reports,” Sen. John D. Rockefeller IV (D-W.Va.) said in a statement. He added that “the CIA’s description of notifying Congress is inconsistent with our records.”

The handling of the tapes raised questions on other fronts.

CIA Director Michael V. Hayden had said the tapes were “not relevant to any internal, legislative or judicial inquiries.” But critics said the tapes could have been pertinent to congressional inquiries, to the Sept. 11 commission and in the criminal trials of two terrorism suspects.

White House Press Secretary Dana Perino said President Bush had no recollection of having been aware of the tapes or their destruction before he was informed about the issue by Hayden on Thursday.

However, former White House Counsel Harriet E. Miers, a close friend of the president, knew about the CIA’s destruction of the tapes and had urged that they be preserved, ABC News reported Friday, citing unidentified sources. White House officials refused to comment on the report.

Perino said the White House counsel’s office was working with the CIA to gather information on the handling of the tapes. She said the White House would support Mukasey if he decided to investigate the matter.

When asked whether there was concern that laws had been broken, Perino said, “I’ll decline to comment.”

At the time the tapes were destroyed, Porter J. Goss was director of the CIA. He did not respond to a request for comment Friday.

In a statement to agency employees Thursday, Hayden said the CIA had done nothing illegal. He said the agency began videotaping interrogations in 2002 as part of “an internal check on the program in its early stages” and discontinued the practice later that year.

Many of Hayden’s assertions were challenged by lawmakers, lawyers and advocacy groups that have campaigned against the CIA’s secret detention program.

Hayden said that leaders of congressional oversight committees had been informed of the existence of the videos “years ago,” and subsequently were told of the agency’s plans to destroy them.

But Rep. Jane Harman (D-Venice) -- who was the ranking Democrat on the House Intelligence Committee at the time the videotapes were destroyed -- said the panel “was never informed.”

Harman acknowledged receiving a classified briefing in 2003 that disclosed the existence of the tapes. She said that prompted her to send a letter to the CIA general counsel’s office cautioning “against destruction of any videotapes.”

Kennedy assailed Hayden’s statements that the CIA had destroyed the tapes to protect agency officials involved in interrogations from being identified if the tapes leaked, exposing them to retaliation.

“That excuse won’t wash,” Kennedy said. “Would it be beyond the agency’s technical expertise to preserve the tapes while hiding the identity of its employees?”

In a letter to Mukasey, the Senate’s No. 2 Democrat, Richard J. Durbin of Illinois, said the Justice Department should “investigate whether CIA officials who destroyed these videotapes and withheld information about their existence from official proceedings violated the law.”

The tapes were not shared with the commission that investigated the Sept. 11 attacks, even though the executive director of that panel said the commission had asked for such materials as part of the documents and records it requested from the CIA.

There were also questions about whether the CIA had improperly withheld information from the court hearing the trial of Zacarias Moussaoui, who was convicted of conspiring to kill Americans as part of the Sept. 11 plot.

Moussaoui’s lawyers had sought records they hoped might show that Al Qaeda operatives in CIA custody did not know their client, thereby helping to establish that he was not tied to the plot.

Attorneys for Moussaoui revealed Friday that they had filed a motion under seal with a federal appeals court in Richmond, Va., to have the case sent back to U.S. District Judge Leonie M. Brinkema for further investigation.

Federal prosecutors would have had an obligation under the law to turn over to the defense any evidence that might tend to exonerate Moussaoui. But it was unclear Friday whether prosecutors were even aware of the tapes the CIA destroyed.

The Justice Department said in an Oct. 25 letter to Brinkema that it recently had become aware that the CIA had taped interrogations of three potential witnesses in the case.

U.S. Atty. Chuck Rosenberg said in the letter that officials had reviewed the tapes, and that the failure to turn over the evidence did not “prejudice” the defense. The letter indicated that federal prosecutors thought those tapes still existed.

In Moussaoui’s case, the disclosure that the tapes had been destroyed seemed unlikely to persuade Brinkema to order a new trial because of Moussaoui’s decision to enter a guilty plea in 2005. A jury sentenced him to life in prison, rejecting the death penalty sought by prosecutors.

But some defense attorneys said it was important for Brinkema to get to the bottom of potential misrepresentations to the court about the existence of CIA taping of interrogations because they could affect other cases. The judge could order sanctions against the government if she found intentional withholding or destruction of relevant evidence.

“The fact that this may not necessarily be helpful or matter to Moussaoui should not be the end of it,” said a defense lawyer in terrorism cases who spoke on condition of anonymity because he handles pending matters that could be affected.

Similarly, lawyers for convicted terrorist conspirator Jose Padilla had claimed the government’s case against him involved testimony given by a detainee who they said was tortured into naming Padilla as part of a plot to detonate a radiological “dirty bomb” in the U.S.

That detainee, Abu Zubaydah, an Al Qaeda operative linked to the Sept. 11 plot, was one of the two detainees whose interrogation was videotaped by the CIA. The agency has not identified the second.

The government has denied that it tortured Zubaydah. And although the “dirty bomb” allegation against Padilla was dropped, he was convicted on charges of aiding terrorists. He and two co-defendants face life imprisonment when they are sentenced next month in Miami.

“There are potential legal issues surrounding the failure to turn over evidence or the destruction of evidence,” said Gerald Zerkin, a federal public defender in Richmond who helped represent Moussaoui at trial.

Zerkin said it was impossible to tell how important the information was to the case. But, he said: “I would be amazed if it were not pursued.”

CIA spokesman Paul Gimigliano defended the agency’s handling of the matter, saying Moussaoui’s lawyers had sought tapes “of specific, named terrorists” whose comments might influence the case.

Those detainees were not among the prisoners whose interrogations were recorded on the tapes acknowledged Thursday by Hayden, Gimigliano said.

“The CIA did not say to the court in its original filing that it had no terrorist tapes at all,” Gimigliano said. “It would be wrong to assert that.”

Some questioned whether the CIA practice of videotaping was more widespread. Meg Satterthwaite, director of New York University’s International Human Rights Clinic, said one of her clients, a Yemeni who was held by the CIA, saw cameras both in his room and in the interrogation room.

Satterthwaite said there was no proof the cameras were used for videotaping, but said a physician at the prison told her client his interrogation had been recorded. “Cameras were a ubiquitous feature of the CIA program, there is no doubt about that,” Satterthwaite said.

Times staff writers Richard B. Schmitt, Julian E. Barnes and Josh Meyer contributed to this report.