Paper Trail

The CIA repeatedly asked White House lawyer Harriet Miers over a two-year period for instructions regarding what to do with "very clinical" videotapes depicting the use of "enhanced" interrogation techniques on two top Al Qaeda captives, according to former and current intelligence officials familiar with the communications (who requested anonymity when discussing the controversial issue). The tapes are believed to have included evidence of waterboarding and other interrogation methods that Bush administration critics have described as torture.

Senior officials of the CIA's National Clandestine Service finally decided on their own authority in late 2005 to destroy the tapes—which were kept at a secret location overseas—after failing to elicit clear instructions from the White House or other senior officials on what to do with them, according to one of the former intelligence officials with direct knowledge of the events in question. An extensive paper—or e-mail—trail exists documenting the contacts between Clandestine Service officials and top agency managers and between the CIA and the White House regarding what to do about the tapes, according to two former intelligence officials.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes' destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

According to one of the former officials, one reason the CIA executives originally decided the interrogations of Al Qaeda captives Abu Zubaidah and Abd al-Rahim al-Nashiri should be videotaped was in order to protect the officers conducting the interrogations by demonstrating that everything done during the interrogations complied with guidelines set down by the White House and Justice Department. Another reason the tapes were made was because at the time Abu Zubaidah was captured he had suffered severe gunshot wounds and CIA officials wanted to document the fact that he received adequate medical treatment.

Only small portions of what former and current officials described as "low hundreds" of hours of the destroyed tapes depicted the use of "enhanced" interrogation techniques, like waterboarding; many hours of tapes, said one of the sources, consisted simply of pictures of Zubaidah in his cell in a secret CIA detention facility overseas.

A detailed written transcript of the tapes' contents—apparently including references to interrogation techniques—was subsequently made by the CIA. But the tapes themselves were never brought onto U.S. territory; they were kept, and later destroyed, at a secret location overseas. At one point portions of the tapes were electronically transmitted to CIA headquarters in Langley, Va., so a small number of officials there could review them. A counterterrorism source, who also asked for anonymity when discussing this subject, said that there was no reason to believe that any recordings of such an electronic feed still exist.

In 2003, according to the former and current officials, senior officers of the National Clandestine Service, the CIA division that conducts undercover espionage operations overseas, began expressing concern to CIA lawyers and management about what should be done with the tapes. As a result of these concerns, discussions were held between top Clandestine Service executives and the most senior CIA managers about the tapes' future. Initially, according to a former official, the most senior CIA official involved in the discussions was agency director George Tenet. When Tenet left the agency in 2004 and was replaced as chief by former House Intelligence Committee chairman Porter Goss, the Clandestine Service officers then raised the issue of what to do about the tapes with Goss.

Throughout the same period, said one of the former officials, a senior CIA lawyer, John Rizzo, now the agency's acting general counsel, was also conducting discussions on what to do with the tapes with White House lawyer Harriet Miers. Two sources said that Rizzo also discussed the issue with officials at the Justice Department, which had issued classified guidelines outlining how the CIA's interrogation program should operate.

The reason CIA officials involved the White House and Justice Department in discussions about the disposition of the tapes was that CIA officials viewed the CIA's terrorist interrogation and detention program—including the use of "enhanced" interrogation techniques—as having been imposed on the agency by the White House. "It was a political issue," said the former official, and therefore CIA officials believed that the decision as to what to do with the tapes should be made at a political level, by Miers—a former personal lawyer to President Bush and later White House staff secretary and counsel—or someone else directly representing the president.

The current and former officials said that discussions between Clandestine Service officials and their superiors and between the CIA and White House unfolded in what one source described as "fits and starts" between 2003, when the matter first arose, and late 2005, when Jose Rodriguez Jr., then head of the Clandestine Service and still a CIA officer today, made the final decision that the tapes should be destroyed. People who are familiar with the views of both former CIA chiefs Tenet and Goss (and who spoke to NEWSWEEK anonymously because of the sensitivity of the issue) have said that at the time the question of the tapes' destruction was under discussion, both CIA directors indicated that they believed it would be unwise to destroy the tapes. The tapes' destruction actually occurred when Goss headed the agency—but one of the sources familiar with his views said that Goss thought he had an "understanding" with Clandestine Service officials that the tapes would be preserved and was unhappy to learn after the fact that the tapes had indeed been destroyed.

Rodriguez could not be reached for comment. Mark Mansfield, the CIA's chief spokesman, said that because the tapes controversy was now the subject of a preliminary investigation by the Justice Department and the CIA's own inspector general, it would be "inappropriate" for him to comment on details related to the issue. Asked for comment on the role of Miers or other administration officials in discussions about how to dispose of the tapes, Tony Fratto, a White House spokesman, told NEWSWEEK, "While the CIA and [Justice Department]worked jointly to gather facts, we're going to support their efforts … and part of that support means that we're not commenting further on this." Miers did not respond to NEWSWEEK's request for comment.

Current and former officials familiar with Rizzo's views said he was never comfortable with the idea of the tapes being destroyed. But Clandestine Service officials involved in the matter believe they never got explicit instructions from him to preserve the tapes.

On Capitol Hill today, Gen. Michael Hayden, the CIA's current director, appeared at a closed-door hearing of the Senate Intelligence Committee, which has initiated an investigation into the CIA's handling of the tapes—and the extent to which the agency kept congressional oversight committees apprised of what was happening with them. The House Intelligence Committee has launched a parallel investigation and is expected to hold a closed-door hearing with Hayden on Wednesday.