WASHINGTON -- The CIA in 2005 destroyed at least two videotapes documenting the interrogation of two al-Qaida operatives in the agency's custody, a step it took in the midst of congressional and legal scrutiny about the CIA's secret detention program, according to current and former government officials.
The videotapes showed CIA operatives in 2002 subjecting terror suspects - including Abu Zubaydah, the first detainee in CIA custody - to severe interrogation techniques. They were destroyed partly because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.
The CIA said yesterday that the decision to destroy the tapes had been made "within the CIA itself," and that its purpose was to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss.
The existence and subsequent destruction of the tapes are likely to reignite the debate over the use of severe interrogation techniques on terror suspects, and raise questions about whether CIA officials withheld information from the courts and from the Sept. 11 commission about aspects of the program.
The New York Times informed the CIA on Wednesday evening that it planned to publish in today's newspaper a story about the destruction of the tapes. Yesterday, the CIA director, General Michael V. Hayden, sent a letter to CIA employees explaining the matter.
The recordings were not provided to a federal court hearing the case of terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the CIA for transcripts and any other documentary evidence taken from interrogations of agency prisoners.
CIA lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the CIA did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Zubaydah.
Moussaoui's lawyers had hoped that records of the interrogations might provide exculpatory evidence for Moussaoui - showing that al-Qaida detainees did not know Moussaoui and thus clearing him of involvement in the Sept. 11 plot.
Hayden's statement said that the tapes posed a "serious security risk," and that if they were to become public they would have exposed CIA officials "and their families to retaliation from al-Qaida and its sympathizers."
"What matters here is that it was done in line with the law," he said. He said in his statement that he was informing agency employees, because "the press has learned" about the destruction of the tapes.
Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005.
"The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request," said Philip D. Zelikow, who was executive director of the Sept. 11 commission and later a senior counselor to Secretary of State Condoleezza Rice. "No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings," he said.
Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with al-Qaida leaders, said he had heard nothing about any tapes being destroyed. If tapes were destroyed, he said, "it's a big deal, it's a very big deal," because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.
Hayden said that the tapes were originally made to ensure that agency employees acted in accordance with "established legal and policy guidelines." Hayden said the agency had stopped videotaping interrogations in 2002.
"The tapes were meant chiefly as an additional, internal check on the program in its early stages," his statement read.
In October, federal prosecutors in the Moussaoui case were forced to write a letter to the court amending those CIA declarations. The letter stated that in September, the CIA notified the U.S. attorney's office in Alexandria, Va., that it had discovered a videotape documenting the interrogation of a detainee. After a more thorough search, the letter stated, CIA officials found a second videotape and one audio tape.
The letter is heavily redacted, and sentences stating which detainees' interrogations the recordings document are blacked out. Signed by U.S. Attorney Chuck Rosenberg, the letter states that the CIA's search for interrogation tapes "appears to be complete."
There is no mention in the letter of the tapes CIA officials destroyed. Moussaoui was convicted last year and sentenced to life in prison.
John Radsan, a CIA lawyer in 2002-2004 who is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties. "If anybody at the CIA hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute," he said.
A former intelligence official who was briefed on the issue said that the videotaping had been ordered after reports of unauthorized techniques as a way of ensuring "quality control" at remote sites. He said that the tapes, along with still photographs of interrogations, were destroyed after pictures of abuse of prisoners at Abu Ghraib became public in May 2004 and CIA officers became concerned about a possible leak of the videos and photos.
He said that the worries about the impact a leak of the tapes might have in the Muslim world were real.
It has been widely reported that Zubaydah was subjected to several tough physical tactics, including waterboarding. But CIA officers judged that the release of photos or videos would nonetheless provoke a strong reaction. "People know what happened, but to see it in living color would have far greater power," the official said.
Democratic Rep. Rush D. Holt of New Jersey, a member of the House Intelligence Committee, has been pushing legislation in Congress to have all detainee interrogations videotaped so officials can refer to the tapes multiple times to glean better information.
Holt said he had been told many times that the CIA does not record the interrogation of detainees. "When I would ask them whether they had reviewed the tapes to better understand the intelligence, they said, 'What tapes?'" he said.