The top Democrat on the House Intelligence Committee warned in a 2003 letter that destroying videotapes of terrorist interrogations would put the CIA under a cloud of suspicion, according to a newly declassified copy of the letter.
"Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future," Rep. Jane Harman, D-Calif., wrote in a Feb. 10, 2003 letter to then-CIA general counsel Scott Muller. "The fact of destruction would reflect badly on the agency."
Harman's office released the declassified letter on Thursday, a day after the Justice Department announced it had opened a criminal investigation into the destruction of the tapes. The letter notes that a copy also went to then-CIA Director George Tenet.
Last month, the CIA acknowledged destroying videos showing the harsh interrogation of two top al-Qaida suspects — Abu Zubaydah and Abd al-Rahim al-Nashiri.
CIA Director Michael Hayden said the videos, which were made in 2002, were destroyed in 2005 out of fear the tapes would leak and reveal the identities of interrogators. Hayden said the sessions were videotaped to provide an added layer of legal protection for officers using tough interrogation methods authorized by President Bush to help break down recalcitrant prisoners.
Harman's letter, sent when memories of the 2001 terrorist attacks were still fresh, acknowledges that the CIA was faced with balancing security and liberty while protecting the country from another attack. But in a reference to the harsh interrogations, she asked Muller "whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the president?"
In his response to Harman's letter, Muller did not address her concerns about destroying the tapes. Instead, he reassured her that the interrogation techniques used were legal. And he added: "I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch."
The CIA declassified Harman's 2003 letter so that she could speak publicly about her concerns then and now. At the time, Harman was the senior Democrat on the intelligence panel.
Harman was one of several officials who recommended against destroying the tapes. One official familiar with the investigation said Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes. Another administration attorney, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers who discussed the matter in 2003 came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger's account of the 2003 White House discussion. "The recommendation in 2003 from the White House was that the tapes should not be destroyed," the official said.
President Bush has said his "first recollection" of being told about the tapes and their destruction was when Hayden briefed him about it last month.
House Intelligence committee Chairman Sylvestre Reyes, D-Texas, has scheduled a hearing for Jan. 16, at which he plans to question Jose Rodriguez, the former head of the CIA's National Clandestine Service who ordered the tapes destroyed, and acting CIA general counsel John Rizzo.
On Wednesday, Attorney General Michael Mukasey appointed John Durham, a veteran federal prosecutor in Connecticut, to oversee a full criminal investigation that could further challenge the Bush administration's handling of terrorism suspects.
Durham, a 25-year veteran of the Justice Department, has a reputation as one of the nation's most relentless prosecutors. He was appointed to investigate the FBI's use of mob informants in Boston, a probe that sent former FBI agent John Connolly to prison.
Prosecutors from the Eastern District of Virginia, which includes the CIA's headquarters in Langley, Va., had removed themselves from the case. CIA Inspector General John L. Helgerson, who worked with the Justice Department on the preliminary inquiry, also removed himself.
"The Justice Department went out and got somebody with complete independence and integrity," said former Connecticut U.S. Attorney Stanley Twardy, who worked with Durham. "No politics whatsoever. It's going to be completely by the book and he's going to let the chips fall where they may."
Durham gained national prominence following the 1989 murder of Mafia underboss William Grasso, which led to one of the biggest mob takedowns in U.S history. He then turned to Connecticut street gangs, winning dozens of convictions and putting some gang leaders in jail for life. Former Attorney General Janet Reno hand-picked Durham to lead the investigation into the FBI's use of mob informants in Boston.
Durham, a Republican, has shown no tolerance for corruption in either party. He supervised the corruption investigation that sent former Republican Connecticut Gov. John G. Rowland and several members of his administration to prison.