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Democrat warned against destroying tapes

The Baltimore Sun

WASHINGTON -- Two years before the CIA destroyed interrogation videotapes, top officials were urged to preserve them by a senior lawmaker who warned that disposing of the recordings would "reflect badly on the agency."

The warning came in a February 2003 letter from Rep. Jane Harman, who was then the top Democrat on the Intelligence Committee. The letter was released publicly by the California congresswoman's office yesterday, after its contents were declassified by the CIA, one day after the Justice Department opened a criminal investigation into the destruction of the tapes.

The existence of Harman's letter has been reported, but not its precise contents, which provide new details on then-classified discussions between the CIA and senior members of Congress about the tapes and the agency's desire to get rid of them.

After learning in a classified briefing that the CIA planned to destroy the tapes, Harman wrote a letter urging the agency to reconsider.

"Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future," she wrote.

The documents released by Harman's office reflect an exchange between the congresswoman and the CIA's general counsel at the time, Scott Muller.

Harman's letter refers to a classified briefing in which Muller told members that the CIA had used "enhanced techniques" during interrogation sessions with al-Qaida suspect Abu Zubaydah, who was captured in Pakistan in 2002.

Zubaydah was subjected to an array of harsh interrogation methods, including "water-boarding," a technique in which a prisoner is made to fear he is in danger of drowning.

"You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the [CIA] Inspector General finishes his inquiry," Harman wrote. At the time, the agency's inspector general's office was examining the detention and interrogation programs.

The advice that Muller and other administration lawyers offered on whether the tapes could be destroyed is likely to be a major avenue of inquiry for John H. Durham, the federal prosecutor named Wednesday to head the investigation.

The federal courts in Washington have ruled that government lawyers cannot assert the attorney-client privilege to avoid testifying in grand jury and other proceedings about advice they gave.

Those rules, which were developed during the myriad investigations of the Clinton administration, mean that Muller and other lawyers who once served on the Bush team - including former Attorney General Alberto R. Gonzales and former White House Counsel Harriet E. Miers - would have to submit to questioning from Durham's task force.

Stephen Gillers, a legal ethics expert at New York University law school, said it would be hard to prosecute the lawyers themselves for the legal advice they gave unless there was evidence that they participated in or actively urged destroying the tapes. But the lawyers had no independent obligation to take possession of the tapes to ensure that they be preserved, Gillers and other experts said.

Federal law makes it a form of obstruction of justice to destroy evidence that might be relevant not only to a pending official proceeding but one that is reasonably foreseeable. At the time the tapes were destroyed in late 2005, Congress was already moving to broaden restrictions on the sort of aggressive interrogation techniques that the tapes portrayed.

"Clearly, White House officials were involved in discussions regarding the disposition of the tapes," Harman said in a written statement yesterday. She added that "Congress needs to know why key committees may have been misled about their existence and not told they had been destroyed."

In her letter, Harman noted that Muller had assured members that the Justice Department and White House had sanctioned the legality of the detention and interrogation program. But she questioned whether employing harsh methods was "consistent with the principles and policies of the United States."

In his response, Muller said that he could not comment on administration deliberations, but that he thinks "it would be fair to assume that policy as well as legal matters have been addressed within the executive branch."

Greg Miller and Richard B. Schmitt write for the Los Angeles Times.

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