Mukasey on the Spot

The CIA revealed last week that it had destroyed tapes of Al Qaeda detainees being questioned despite at least three official requests for evidence relating to the agency's interrogation practices. The disclosure provoked demands for a Justice Department investigation, casting a spotlight on new Attorney General Michael Mukasey. A former federal judge, Mukasey pledged during his confirmation hearings to exercise independent judgment at Justice, saying he wouldn't hesitate to make tough calls that might displease the White House. But such an investigation could ultimately touch on some of the most sensitive secrets of the Bush administration: the use of aggressive interrogation techniques—such as waterboarding—that critics say amount to torture. The methods were approved at the highest levels of the White House, and Mukasey himself almost saw his nomination derailed when he refused to say whether waterboarding was illegal. Last week Sen. Dick Durbin of Illinois, the assistant Senate Democratic leader, wrote to Mukasey requesting a probe into whether the CIA violated any laws by destroying the tapes. "The CIA apparently withheld information about the existence of these videotapes from official proceedings, including the 9/11 Commission and a federal court," Durbin said.

Justice officials refused to comment on what the new A.G. will do, but White House spokeswoman Dana Perino said that if he does open an investigation, the White House would support him. The videotapes, made in 2002, showed the questioning of two high-level Qaeda detainees, including logistics chief Abu Zubaydah, whose interrogation at a secret cell in Thailand sparked an internal battle within the U.S. intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaydah was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.

CIA officials said last week that the decision to destroy the tapes was made three years later, in an effort to protect the identities of the interrogators on the chance the tapes were to leak. As it turns out, the CIA destroyed the tapes despite requests for records of the interrogations by the Senate intelligence committee and the 9/11 Commission; in an earlier letter, Rep. Jane Harman, the then ranking member of the House intelligence committee, also specifically asked the agency not to dispose of any such tapes. The Senate committee's then vice chairman, Sen. Jay Rockefeller, disclosed last week that he had written a letter, in May 2005, seeking more than 100 documents related to the detention and interrogation practices, including a previously unknown CIA Office of General Counsel report, and that the agency refused to comply. The agency also told a federal judge in the trial of Zacarias Moussaoui that it had no videotapes of interrogations related to the case. But federal prosecutors recently disclosed that the CIA's declarations contained "factual errors" after they discovered that the agency had retained two videos and an audiotape of detainee interrogations.

A major focus of a Justice probe into the tapes would be who actually ordered their destruction—and why. The director of the CIA at the time, Porter Goss, thought he had an "understanding" with operational officials that such tapes would be preserved, and he "wasn't happy" when he found out "after the fact" that the tapes had been destroyed, according to a person familiar with Goss's views who asked for anonymity discussing a sensitive matter. An intelligence official indicated that the decision was made by the head of the CIA's Clandestine Service at the time, Jose Rodriguez. Still other ex-agency officials say Rodriguez was a loyal subordinate who would not have made such a decision on his own. Whoever ordered it, all eyes are on Mukasey now.