By Carrie Johnson and Julie Tate
Washington Post | March 24, 2010
An investigation into the destruction of CIA videotapes that depicted harsh interrogations of terrorism suspects appears to be nearing a close, ending a long inquiry in which authorities have encountered a series of roadblocks in building a case.
Prosecutors are now examining the sworn testimony of an agency official to assess whether false statements charges can be made, according to two sources familiar with the case.
Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, the sources said. That could signal that the case is reaching its final stages. Durham has been spotted at the Justice Department headquarters in the District over the past few weeks, in another signal that his work is intensifying.
The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke anonymously because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about the handling of the tapes and whether they should have been included when agency records were turned over in other court cases. McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify, the sources said.
An attorney for McPherson did not return calls and e-mails seeking comment. Thomas Carson, a spokesman for Durham, who is based in the U.S. attorney's office in Connecticut, also declined comment. A CIA spokesman declined comment Wednesday.
A U.S. official who declined to be identified because the case is ongoing, said "Durham runs a tight ship, and there haven't been any real leaks out of his investigation. People should, for that extremely compelling reason, be very careful about believing anything billed as inside scoop from the Durham inquiry. It's probably, at best, gossip and rumor."
Investigators now are turning their attention to the grand jury testimony last year by another agency official, the sources said. Lawyers point out that prosecutors routinely search for discrepancies in grand jury testimony as part of any broad investigation.
Jose A. Rodriguez, the former chief of the CIA's directorate of operations, triggered the destruction of the 92 tapes in November 2005. But he has not offered any testimony to prosecutors. But an official who worked alongside him did appear before the grand jury for more than a day and that testimony is being scrutinized closely by prosecutors, the sources said. The Washington Post was asked not to publish the name of the official, who is undercover. The official's attorney declined comment Wednesday.
Durham and a special team have gathered and pored over sensitive documents to determine whether destruction of the tapes constituted a crime. Agency officials say the motive for getting rid of the tapes was innocent: that CIA veterans feared the disclosure could compromise their security after the emergence of widely reviled images of detainee humiliation at the Abu Ghraib prison in Iraq. But investigators have been probing whether the tapes were destroyed in anticipation of a congressional or federal investigation, which could violate obstruction of justice laws.
Durham has gone about his work quietly. But in July, Durham told a federal judge in New York in a related freedom of information case filed by civil liberties groups that he was "examining whether the obstruction of justice statutes may have been violated; whether somebody engaged in a contempt of court or contempt of Congress; whether the Federal Records Act was violated, that is, did the tapes constitute federal records and, therefore, they should not have been destroyed; and we are looking at whether people, any person or persons, filed false statements or may have otherwise perjured themselves in connection with these matters."
Attorneys for the American Civil Liberties Union are scheduled to appear in court in New York on Thursday to argue for the release of CIA cables and other documents that describe the contents of the destroyed videotapes.
In recent weeks, prosecutorial attention has turned to false statements, in part because of the difficulty in making a case based on the underlying destruction of the videotapes. The tapes cover the interrogation of two of the CIA's high-value detainees: Zayn al-Abidin Muhammed Hussein, an alleged al-Qaeda financier who is better known as Abu Zubaida; and Abd al-Rahim al-Nashiri, a Saudi suspected of involvement in the October 2000 bombing of the USS Cole as it docked for refueling in a Yemeni port.
The fresh scrutiny based on allegations that do not relate directly to the destruction of videotapes could make it more difficult for Durham to win voluntary cooperation from witnesses in another, related matter he is investigating, lawyers involved in the case said.
In August, Attorney General Eric H. Holder Jr. directed Durham to expand his focus and investigate whether to launch a criminal investigation into a small number of cases where CIA contractors went outside the boundaries of Justice Department guidance in interrogating terrorism suspects. Among the cases, which date to 2002, is the alleged use of a drill and a firearm in the questioning of Nashiri, according to government documents released last year.
The decision to open a criminal inquiry into the interrogations -- after two teams of Bush administration prosecutors decided against launching a probe -- ignited fierce criticism, including a letter to President Obama from seven former CIA directors from Democratic and Republican administrations asking him to reverse course last year.