Convicted terrorist Zacarias Moussaoui's drawn-out appeal is revealing new information about interrogation tapes in possession of the CIA and that prosecutors on the case knew that a CIA interrogation tape of Abu Zubaydah had been destroyed.
The main argument of Moussaoui's appeal is that the government withheld evidence from his defense and that the CIA had submitted declarations in 2003 to the U.S. District Court in Alexandria that no recordings of detainee interrogations existed.
The government first admitted it had tapes of interrogations in a letter, dated Oct. 25, 2007, which was disclosed last November. In that letter the Justice Department acknowledged the CIA had filed inaccurate declarations in Moussaoui's case.
"Further the CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui Prosecution," the letter said.
The CIA acknowledged on Dec. 6, 2007, that interrogation videotapes of two al Qaeda detainees who had been waterboarded had been destroyed.
That same day in a top secret court motion rebutting the appeal by Moussaoui's lawyers, prosecutor David Novak acknowledges, "Moussaoui's proposed areas of inquiry address the existence of recordings for the six other enemy combatant witnesses." A footnote in the filing denies allegations of torture, claiming "to the contrary, the videotapes show [redacted] sitting in a chair answering questions."
In a top secret court filing dated Nov. 21, 2007, that was declassified today, Moussaoui's appeal lawyers Justin Antonipillai and Barbara Hartung said in their argument for a hearing on the issue before the Fourth Circuit Court of Appeals that "the October 25th letter fails to provide any adequate reassurances that there are not other recordings of pertinent detainee interrogations either in the government's possession or in the possession of foreign governments but accessible to the United States."
Moussaoui's request to have the U.S. District Court review and consider the tapes was denied by the 4th Circuit Court of Appeals in a January 16, 2008 order. Moussaoui's overall appeal of his case could be considered and argued before the 4th Circuit in the future.
Additional declassified material that has been revealed as a result of Mousaoui's appeal included a Dec. 18, 2007 letter filed by the government in the case, which notes that Robert Spencer, the lead attorney on the Moussaoui prosecution team, had been informed that the interrogation tape of Abu Zubaydah had been destroyed.
"It appears that the former prosecutor in this case, Robert Spencer, may have been told in late February or early March 2006 about videotapes of Abu Zubayah's interrogations and their destruction," the letter says.
"Mr. Spencer, who was one of three AUSA constituting the prosecution team in March 2006, does not recall being told this information, but another eastern district of Virginia AUSA who was not on the prosecution team, recalls telling him on one occasion," the letter continues.
"The other AUSA , who learned about the video taping of Zubaydah in connection with the work he preformed on a Department of Justice project unrelated to the Moussaoui case recalls brining the matter to Mr. Spencer's attention in Mr. Spencer's Capacity as Chief of the Criminal Division, not because of any issue of which the AUSA was aware in the Moussaoui case," it says.