Lawyers left out of memo to destroy CIA terror tapes

WASHINGTON — When the CIA sent word in 2005 to destroy scores of videos showing waterboarding and other harsh interrogation tactics, there was an unusual omission in the carefully worded memo: the names of two agency lawyers.

Once a CIA lawyer has weighed in on even a routine matter, officers rarely give an order without copying the lawyer in on the decision. It's standard procedure, a way for managers to cover themselves if a decision goes bad.

But when the CIA's top clandestine officer, Jose Rodriguez, told a colleague at the agency's secret prison in Thailand to destroy interrogation videos, he left the lawyers off the note.

The destruction of the tapes wiped away the most graphic evidence of the CIA's now-shuttered network of overseas prisons, where suspected terrorists were interrogated for information using some of the most aggressive tactics in U.S. history.

Critics of that George W. Bush-era program point to the tapes' destruction and say his administration was trying to cover its tracks.

The reality is not so simple.

Interviews with current and former U.S. officials and others close to the investigation show that Rodriguez's order was at odds with years of directives from CIA lawyers and the White House. Rodriguez knew there would be political fallout for the decision, according to documents and interviews, so he sought a legal opinion in a way to gain needed legal cover to get the tapes destroyed — but not so much that anyone would stop him.

Leaving the lawyers he had consulted off his cabled order to destroy the tapes was so unusual that a top CIA official noted it in an internal e-mail just days later. The omission is now an important part of the Justice Department's 2 1/2-year investigation into whether destroying the tapes was a crime.

Prosecutors have focused on a little-used section of the 2002 Sarbanes-Oxley accounting law. That makes it illegal to destroy documents, even if no court has ordered them kept and no investigator has asked for them.

Rodriguez, who wasn't disciplined for what some former officials told prosecutors amounted to insubordination, is frequently back at CIA headquarters as a contractor.

The Associated Press has compiled the most complete published account to date of how the tapes were destroyed, a narrative that among other things underlines the challenges prosecutors face in bringing charges.