When president Obama decided to release the Bush-era Justice Department's interrogation memos last month, he tried to calm an anxious CIA by publicly declaring that operatives who "reasonably" relied on them would not face criminal prosecution. But agency officials still have plenty to worry about. Despite Obama's assurances, a Justice Department special counsel is quietly ratcheting up his probe into a closely related subject: the CIA's destruction of hundreds of hours of videotape showing the waterboarding of two high-value Qaeda suspects. At the same time, a Senate panel is planning the first public hearing dealing with CIA interrogations, including testimony from a star witness: Ali Soufan, the former FBI agent who vigorously protested the questioning of one of the detainees, terror suspect Abu Zubaydah.
In recent weeks, prosecutor John Durham has summoned CIA operatives back from overseas to testify before a federal grand jury, according to three legal sources familiar with the case who asked not to be identified discussing sensitive matters. The sources said Durham is also seeking testimony from agency lawyers who gave advice relating to the November 2005 decision by Jose Rodriguez, then chief of the CIA's operations directorate, to destroy the tapes. The flurry of activity has surprised some lawyers on the case who had assumed Durham was planning to wind down his probe without bringing charges. Now they're not so sure. Durham, who declined to comment, might simply be tying up loose ends in a closely watched case. But one continuing point of inquiry could spell trouble for the agency: allegations that CIA officials may have made false statements or obstructed justice in the case of convicted Qaeda conspirator Zacarias Moussaoui.
Durham was appointed by former attorney general Michael Mukasey shortly after the December 2007 revelation about Rodriguez's decision. At the time, then-CIA director Michael Hayden insisted the tapes were destroyed only after "it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries—including the trial of Zacarias Moussaoui." But since then, declassified filings in the Moussaoui case show that around the time the tapes were destroyed, Moussaoui's lawyers were seeking CIA records about the interrogation of Abu Zubaydah—who, according to recent disclosures, was waterboarded 83 times. On Nov. 3, 2005, Judge Leonie Brinkema even ordered government lawyers "to confirm or deny that it has video- or audiotapes" of interro-gations of potential witnesses. But CIA officials supplied only "intelligence summaries" of Abu Zubaydah's interrogation. (The CIA declined to comment. Rodri-guez was unaware of any judicial orders for the tapes and "did absolutely nothing wrong," said his lawyer, Robert Bennett.)
Sen. Sheldon Whitehouse, a top backer of a "truth commission" on torture, is taking matters into his own hands, starting with a May 13 hearing of a judiciary subcommittee he chairs. Along with Soufan, he also plans to call former State Department official Philip Zelikow, another internal critic. According to a Senate Democratic aide, who also asked for anonymity, Whitehouse wants to keep a public spotlight on the issue until the next bombshell: an internal Justice Department ethics report on the lawyers who wrote the interrogation memos, which could be released within the next month.