Faced with the threat of subpoenas, the CIA has reversed its position from last week and is now signaling that the agency will cooperate with an aggressive congressional investigation into the destruction of hundreds of hours of videotapes believed to show the use of waterboarding and other enhanced interrogation techniques on two suspected top Al Qaeda leaders, Newsweek has learned.
News that the CIA would cooperate with the congressional inquiry came one day after House Intelligence Committee chairman Rep. Silvestre Reyes and ranking member Rep. Pete Hoekstra sent CIA Director Gen. Michael Hayden a letter saying their panel would proceed with its probe--despite a joint request last week from the agency's Inspector General and the Justice Department urging the committee to back off. The agency's apparent change of heart came in the wake of a New York Times report alleging that top White House lawyers were consulted and discussed the fate of the tapes, a development that raises the political stakes in the congressional probe.
Tuesday's letter to the agency from Reyes and Hoekstra warned Hayden directly that their committee intended to subpoena documents and testimony from top CIA officials. The panel also began drafting subpoenas seeking, among other items, all records of communications about the tapes between the CIA and other executive branch officials--a request that would cover the agency's consultations with the White House. Copies of unsigned subpoenas have already been provided to the CIA.
The House panel is also seeking testimony--for a hearing tentatively scheduled for Jan. 16--from two central figures in the tapes controversy: acting CIA general counsel John Rizzo and Jose Rodriguez, former chief of the CIA's National Clandestine Service. Rodriguez is said to have given the order to destroy the tapes in Nov. 2005 after consulting with agency lawyers. In addition, the committee wants copies of all agency records relating to the retention and destruction of the tapes, along with any legal advice agency officials received. The House panel has asked for the CIA to begin turning over the documents by the end of this week.
Hoekstra told Newsweek that the CIA has told the committee that they are "99 percent confident" that Rizzo will "show up" for the January 16 hearing. Hoekstra added that ultimately, the committee wants to hear from "all the people involved in the decision making, including the White House."
Just last week, the Justice Department and the CIA inspector general sent the House panel a letter asking it to delay its inquiry to allow a preliminary investigation into whether the destruction violated any criminal laws to proceed. But Reyes and Hoekstra refused to back down and this week, a committee official said, Justice officials said the department no longer had any objection to the CIA cooperating. Reyes and Hoekstra subsequently fired off their letter raising the prospect of subpoenas if the CIA didn't fully cooperate.
CIA spokesman Mark Mansfield confirmed to Newsweek that the CIA intends to cooperate with the House committee's investigation. "As Director Hayden has made clear, CIA will cooperate fully with the preliminary inquiry being conducted by the Justice Department and CIA Inspector General as well as with Congress. We are in touch with the [House] committee on these matters and we're looking forward to it being worked out." Mansfield added that Rizzo "will certainly cooperate" with the House committee inquiry.
However, Rodriguez--the agency official who appears to be most directly involved in the decision to destroy the tapes--may be another story. He is now represented by Washington criminal defense lawyer Robert Bennett, who said, "When and if we get the subpoena, we'll deal with it. That's all I'm prepared to say."
As the investigation proceeds, another issue likely to attract further attention is the role of the office of CIA Inspector General John Helgerson--and the personal involvement of Helgerson himself--in the agency's original handling of the tapes.
According to three former and current government officials, Helgerson, a veteran CIA employee who has been the agency's IG since 2002, had long been known among officials of the Clandestine Service to be dismayed over the agency's involvement in detaining and aggressively interrogating Al-Qaeda suspects. Helgerson was personally opposed to the use of "enhanced" interrogation techniques, one former official said, and "made that known throughout the [CIA headquarters] building."
Prior to 9/11, the CIA had no program, facilities or personnel allocated for detaining and questioning suspects. The agency set up such a program, involving secret prisons overseas and a set of interrogation techniques, after receiving explicit instructions to do so by the White House and Justice Department, the current and former intelligence officials say. The Justice Department also issued detailed written guidelines as to how the agency was to conduct "enhanced" interrogations of high-level Al-Qaeda captives.
Under Helgerson's leadership, the IG's office at the CIA conducted a series of reviews and investigations of the program, culminating in the production, in 2004, of at least one in-depth report. This document remains highly classified. But it was provided some time ago to congressional oversight committees, according to two government officials, who, like others cited in this story, asked for anonymity when discussing sensitive matters.
At some point between 2002 and 2005, one or more representatives of the IG's office travelled to the secret location overseas where the videotapes of the CIA's interrogations of Abu Zubaida and Abd al-Rahman al-Nashiri were stored and watched them, according to a former government official with direct knowledge of the matter. This source said that following the review, the IG's office issued a written "certification" that the tapes demonstrated that CIA officials had fully complied with post-9/11 Justice Department guidelines on the handling and questioning of high-level Al Qaeda detainees.
The CIA declined to confirm or comment on the existence of such a document. However, an intelligence official acknowledged that the Inspector General's office was aware of the tapes and did examine them. The official said that the IG's office was not party to the decision--made by Rodriguez--to destroy the tapes. By the same token, the official said, at the time the Clandestine Service decided to destroy the tapes, the IG's office did not regard them as relevant to any ongoing investigation that it was conducting. The IG's office also viewed the question of what to do with the tapes -- whether or not they could be destroyed -- as a matter for the agency's management, the official said. That view-that the tapes lacked relevance to inquiries under way at the time--was taken into consideration when Clandestine Service officials made their decision to destroy the tapes, the official said.
The tapes' destruction is now the focus of multiple investigations--including a joint probe by the CIA IG and the Justice Department into whether any laws, such as obstruction of justice statutes, were violated when the tapes were destroyed. Against that backdrop, Helgerson's office has taken measures to exclude from its current investigation any IG personnel, apart from Helgerson himself, who were involved in any earlier dealing with any issue related to the tapes, according to a government official familiar with the situation.