Captain's Quarters -

The CIA finds itself under fire today after the New York Times forced Director Mike Hayden to admit that the agency destroyed two videotapes in 2005 showing terrorists undergoing waterboarding. The agency had previously denied any such tapes existed to all but a handful in Congress. Now the revelation could have far-reaching consequences, including on the conviction of Zacarias Moussaoui:

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

The existence and subsequent destruction of the tapes are likely to reignite the debate over the use of severe interrogation techniques on terror suspects, and their destruction raises questions about whether C.I.A. officials withheld information about aspects of the program from the courts and from the Sept. 11 commission appointed by President Bush and Congress. It was not clear who within the C.I.A. authorized the destruction of the tapes, but current and former government officials said it had been approved at the highest levels of the agency.

Defense attorneys for Moussaoui requested any videotapes of interrogations of al-Qaeda plotters, hopeful that they could use them to show that Moussaoui had no connection to the 9/11 plot. Prosecutors forwarded a denial by the CIA that any such tapes existed. If an appellate court considers that breach serious and relevant, Moussaoui may wind up with a new trial -- and a far more skeptical court and jury.

The CIA claims it notified Congress of the tapes' destruction. The Times doesn't bother to mention this until halfway through the article. The Washington Post mentions them at about the same place -- but they also include a statement from Jay Rockefeller, at the time the ranking member of the Senate Select Committee on Intelligence. He disputes Hayden's contention that committee leadership was fully briefed on the tapes, saying information came to him a year later about their destruction. The CIA presented them with the fait accompli, and did not consult.

If the tapes showed the faces of the interrogators, they would be correct to consider such tapes dangerous if leaked. Given the general sloppiness of the 9/11 Commission, one could understand their reluctance to allow access to the tapes. But why destroy them? Is the CIA incapable of protecting two videotapes from exposure? That sounds like a stretch for an explanation, especially after waterboarding became such a controversial issue at about the same time.

Frankly, the timing stinks. The tapes sat unmolested in a vault for at least two years without the CIA worrying about the potential damage from a leak. The Inspector General had long since concluded that the interrogations did not break the law. However, as soon as Congress began debating the specific interrogation technique that the tapes depicted, someone decided that they represented a danger to the agents. It looks a lot more like destroying evidence than tightening security.

Hayden will spend the next few weeks explaining this to Congress. Instead, Congress should be talking with the people in charge of the CIA in 2005 to find out who gave the order to destroy the tapes, and why.

UPDATE: Michelle Malkin agrees, as does Rick Moran. James Joyner says it looks like obstruction of justice.

UPDATE II: Interestingly, former ranking member of the House Intelligence Committee Jane Harman (D-CA) confirms that she got briefed on the tapes before their destruction -- and warned the CIA not to do it:

Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee, was one of only four members of Congress in 2003 informed of the tapes' existence and the CIA's intention to ultimately destroy them.

"I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it," Harman said. While key lawmakers were briefed on the CIA's intention to destroy the tapes, they were not notified two years later when the spy agency actually carried out the plan. Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said the committee only learned of the tapes' destruction in November 2006.

Current ranking member and then-chair Pete Hoekstra (R-MI) thinks Hayden has overstated the CIA's cooperation with Congress. Hoekstra says today through his spokesman that he "believes the committee should have been fully briefed and consulted on how this was handled."

Providing false testimony to a court is perjury, and deliberately misleading investigators is obstruction of justice. It will almost certainly set Moussaoui up for another terrorist-provoking trial. Scooter Libby got jail time for less than this.