The criminal investigation into the destruction of CIA videotapes of detainee interrogations is heating up, with interviews to be conducted in the next several weeks, according to documents recently filed by the Justice Department.
The investigation has been going on for more than a year and is being conducted by a federal prosecutor and a team of FBI agents.
In December 2007, the CIA acknowledged that interrogation videotapes of two al Qaeda detainees who had been waterboarded had been destroyed.
According to officials, former CIA official Jose Rodriguez, the former chief of the National Clandestine Service, ordered the destruction of the tapes in 2005. Rodriguez's lawyer told The Associated Press last year that then-CIA director Porter Goss was "well aware of the situation," and that he did not object to the action. Goss has not commented publicly on the matter.
A Freedom of Information Act lawsuit filed by the James Madison Project has requested CIA documents related to the destruction of the videos showing the interrogations of al Qaeda detainees Abu Zubaydah and Abd al-Rahim al-Nashiri.
Attorney General Michael Mukasey, at the recommendation of the Justice Department's National Security Division, opened a criminal investigation into the tapes' destruction in January 2008. Mukasey appointed John Durham to serve as the acting U.S. Attorney on the investigation. Durham is a long time federal prosecutor who is counsel to the U.S. attorney for the district of Connecticut.
The Justice Department filed a request on Dec. 31, 2008 asking that the FOIA lawsuit be delayed, claiming that it could interfere with the ongoing criminal case. "Additional time is necessary to accommodate the pending federal criminal investigation," the Justice Department filing noted.
The Justice Department court filings were first disclosed by the Federation of American Scientists Project on Government Secrecy.
In a redacted declaration filed by Durham on Dec. 23, 2008, he notes that his team has conducted many interviews and reviewed numerous documents but that the highly classified nature of the material and processing of documents has strained his support staff.
Issues stemming from the sensitive nature of the highly classified documents in the case have created additional delays in the investigation, and some of the CIA witnesses who have been interviewed in the investigation need to have their own attorneys gain the required government security clearances. "Because of these complicating factors, it has not been unusual for our investigators to encounter delays," Durham noted.
"Based on the investigative accomplishments to date, we anticipate that by mid-February 2009, and no later than Feb. 28, 2009, we will have completed the interviews." Durham wrote in the declaration.
The issue of the detainee videotapes has become a critical part in the appeal of convicted terrorist Zacarias Moussaoui. During the course of Moussaoui's appeal, prosecutors admitted in a letter to defense attorneys that the CIA had submitted inaccurate declarations about interrogation recordings during his trial. The government maintains that the tapes would not have impacted the outcome of Moussaoui's case, as the interviews did not contain information about him or the 9/11 attacks.
But during the trial, the Moussaoui defense had requested information on detainee detainee interrogation recordings. Arguments in Moussaoui's appeal are taking place later this month.
In a statement from Dec. 6, 2007 CIA Director Hayden told CIA employees about the tapes' destruction, "I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries -- including the trial of Zacarias Moussaoui. The decision to destroy the tapes was made within CIA itself. The leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency's intention to dispose of the material."