Global Policy Forum

US Investigators Winding Down Inquiry of Destroyed CIA Tapes


By Carrie Johnson and Julie Tate

March 25, 2010


An investigation into the destruction of CIA videotapes that depicted harsh interrogations of terrorism suspects appears to be nearing a close, ending a long inquiry in which authorities encountered a series of roadblocks in building a case.

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, two sources familiar with the case said. That could signal that the case is reaching its final stages. Durham has been spotted at Justice Department headquarters in Washington over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke on the condition of anonymity because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about handling the tapes, and whether the tapes should have been included when agency records were turned over in other court cases. McPherson is not thought to be under criminal jeopardy but had previously hesitated to testify, the sources said.

An attorney for McPherson did not return calls and e-mails seeking comment. Thomas Carson, a spokesman for Durham, who is based in the U.S. attorney's office in Connecticut, also declined to comment. A CIA spokesman declined to comment Wednesday.

A U.S. official, who spoke anonymously because the case is ongoing, said: "Durham runs a tight ship, and there haven't been any real leaks out of his investigation. People should, for that extremely compelling reason, be very careful about believing anything billed as inside scoop from the Durham inquiry. It's probably, at best, gossip and rumor."

Jose A. Rodriguez, the former chief of the CIA's directorate of operations, triggered the destruction of the 92 tapes in November 2005. He has not offered testimony to prosecutors.

Durham and a special team have gathered and pored over sensitive documents to determine whether destruction of the tapes constituted a crime. Agency officials say the motive was innocent: After the emergence of widely reviled images of detainee abuse at the Abu Ghraib prison in Iraq, CIA veterans feared that the disclosure could compromise their security. Investigators, however, have been probing whether the tapes were destroyed in anticipation of a congressional or federal investigation, which could violate obstruction of justice laws.

The difficulty of pinpointing motivations for destroying the tapes has lengthened the probe and complicated the legal analysis.

Durham has gone about his work quietly. But in July, he told a federal judge in New York, in a related freedom-of-information case filed by civil liberties groups, that he was "examining whether the obstruction of justice statutes may have been violated; whether somebody engaged in a contempt of court or contempt of Congress; whether the Federal Records Act was violated, that is, did the tapes constitute federal records and, therefore, they should not have been destroyed; and we are looking at whether people, any person or persons, filed false statements or may have otherwise perjured themselves."

Lawyers with the American Civil Liberties Union are scheduled to appear in court in New York on Thursday to argue for the release of CIA cables and other documents that describe the contents of the destroyed videotapes.

In recent weeks, prosecutorial attention has turned to false statements, in part because of the difficulty in making a case based on the underlying destruction of the videotapes. The tapes cover the interrogation of two of the CIA's high-value detainees: Zayn al-Abidin Muhammed Hussein, an alleged al-Qaeda financier who is better known as Abu Zubaida, and Abd al-Rahim al-Nashiri, a Saudi suspected of involvement in the October 2000 bombing of the USS Cole as it docked for refueling in a Yemeni port.

The fresh scrutiny based on allegations that do not relate directly to the destruction of videotapes could make it more difficult for Durham to win voluntary cooperation from witnesses in another, related matter he is investigating, lawyers involved in the case said.

In August, Attorney General Eric H. Holder Jr. directed Durham to expand his focus and investigate whether to launch a criminal probe of a small number of cases in which CIA contractors went outside the boundaries of Justice Department guidance in interrogating terrorism suspects. Among the cases, which date to 2002, is the alleged use of a drill and a firearm in the questioning of Nashiri, according to government documents released last year.

The decision to open a criminal inquiry into the interrogations -- after two teams of Bush administration prosecutors decided against it -- ignited fierce criticism, including a letter to President Obama from seven former CIA directors from Democratic and Republican administrations, who asked him to reverse course last year.


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