Illegal torture, illegal concealment of evidence, illegal destruction of evidence. End result? Could prevent people who broke laws going to jail.WASHINGTON, Dec. 8 — The destruction of hundreds of hours of videotapes showing interrogations of top operatives of Al Qaeda, including Abu Zubaydah, could complicate the prosecution of Mr. Zubaydah and others, and it underscores the deep uncertainties that have plagued government officials about the interrogation program.
Officials acknowledged on Friday that the destruction of evidence like videotaped interrogations could raise questions about whether the Central Intelligence Agency was seeking to hide evidence of coercion. A review of records in military tribunals indicates that five lower-level detainees at Guantánamo were initially charged with offenses based on information that was provided by or related to Mr. Zubaydah. Lawyers for these detainees could argue that they needed the tapes to determine what, if anything, Mr. Zubaydah had said about them.
Mr. Zubaydah and another terrorism suspect, Abd al-Rahim al-Nashiri, who is said to be the chief planner of the 2000 attack on the Navy destroyer Cole, are the only suspected Qaeda figures identified so far as the subjects of interrogations recorded on the destroyed tapes.
The destruction of the tapes has ignited a Congressional furor and provoked demands for a Justice Department inquiry, but it has also focused attention on the case of Mr. Zubaydah, who was captured in March 2002. As one of the first close associates of Osama bin Laden to be caught after the 9/11 attacks, Mr. Zubaydah became a test case on which the C.I.A. built and then adjusted its program of aggressive interrogations and overseas secret jails in the years that followed.
Current and former intelligence officials have said that Mr. Zubaydah was subjected to coercive techniques by C.I.A. interrogators even before the Justice Department issued a formal, classified legal opinion in August 2002, declaring that the coercive techniques did not constitute torture.
It is not known whether the videotape depicting Mr. Zubaydah’s interrogation preceded the 2002 opinion, nor is it known what acts were depicted on the tapes. Gen. Michael V. Hayden, the C.I.A. director, said in a statement on Thursday that the tapes were intended as an “internal check on the program in its early stages,” despite what he called “the great care taken and detailed preparations made.”
But the destruction of the tapes in 2005 appeared to reflect what former and current intelligence officials have described as longstanding worries about the legality of its interrogation practices and the possible legal jeopardy for any employees who engaged in the program and the managers who supervised them.
Mr. Zubaydah’s case, which continues to be intensely debated in counterterrorism circles, opens a vista into the broader discussion about the Bush administration’s interrogation policies and the tactics that were used on Mr. Zubaydah and other terrorism suspects. President Bush has argued, since officially confirming the existence of the interrogation program in September 2006, that Mr. Zubaydah’s case proved the value of harsh interrogation methods because Mr. Zubaydah yielded valuable intelligence about the 9/11 plot only after tough tactics were employed.
That assertion was repeated on Thursday by General Hayden. His statement said that to force a recalcitrant Mr. Zubaydah to give up information, the C.I.A. devised “specific, appropriate interrogation procedures” which, he added, were “lawful, safe and effective.” He said all of the techniques used by the C.I.A. had been reviewed and approved before their use by the Justice Department and other executive branch agencies.
But other government officials have long disputed some aspects of the C.I.A.’s version of events. These officials said Mr. Zubaydah, who had been taken to a secret location in Thailand, cooperated with interviewers from the Federal Bureau of Investigation. who used a nonconfrontational approach, until C.I.A. interrogators took over the questioning.
At that point, in April or May of 2002, officials briefed on the classified details of the case said, C.I.A. officials expressed dissatisfaction with the pace of the interviews and concluded that Mr. Zubaydah was revealing only a little of what he knew. C.I.A. interrogators, led by an outside consultant, ratcheted up the use of aggressive techniques.
F.B.I. officials on the scene protested the use of tough tactics, but C.I.A. officials insisted that their methods were warranted. C.I.A. officials have insisted that their statements about the interrogation are accurate, according to government officials briefed on the episode. F.B.I. officials have declined to comment on the matter.
The C.I.A. and F.B.I. were badly split over the interrogation and, after the Thailand confrontation, the F.B.I. forbade its agents from taking part in sessions in which harsh methods were used. Former F.B.I. officials said they had read transcripts of some interviews, but were not told of the extensive videotaping.
In his early F.B.I. interviews, Mr. Zubaydah, who had been badly wounded during his capture, identified Khalid Shaikh Mohammed as the chief planner of the Sept. 11 attacks. He also identified Jose Padilla, an American who was convicted in a Miami federal court in August on terrorism-related charges, as a low-ranking follower of Al Qaeda.
Government officials said that during Mr. Zubaydah’s interrogation sessions, his C.I.A. questioners used a number of tactics: noise, stress positions, freezing temperatures, isolation and waterboarding, in which a subject is made to believe he is being drowned. Mr. Zubaydah is the first person known to be subjected to waterboarding by the United States after the Sept. 11 attacks.
In 2002, during parts of June and July, current and former intelligence officials have said, the C.I.A. suspended the use of harsh techniques against Mr. Zubaydah, apparently fearful of the possible legal consequences of going ahead until the Justice Department issued a formal opinion.
In his statement, General Hayden said, as he has before, that the Justice Department and other agencies approved the tough methods intelligence officers used. Over the years, several Justice Department legal opinions have come to light, including one concluding that torture is “abhorrent.” But none of the opinions explicitly banned techniques like waterboarding. Its legality is still being debated in Congress, and a Congressional committee voted Wednesday to outlaw such tactics.
Intelligence officials have said that because of the debate about whether waterboarding may be considered torture, it was halted in 2003 and its use prohibited by General Hayden in 2006.
In part, the videotaping was an effort to keep the program within legal limits. Though C.I.A. officials said they believed their methods were lawful, they appeared to worry that they might later be criticized or investigated on suspicion of engaging in torture, a felony under federal law.
“The fact remains that that this effort was new,” General Hayden said, “and the agency was determined that it proceed in accord with established legal and policy guidelines.”
The mantra of Republicans is often 'Government will fail'. It's amusing when they go out of their way to ensure it.
