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Destruction of CIA Tapes Could Threaten Prosecutions

The CIA's destruction of hundreds of hours of videotapes of detainee interrogations could put several prosecutions at risk.

Officials acknowledged on Friday that the destruction of evidence like videotaped interrogations could raise questions about whether the Central Intelligence Agency was seeking to hide evidence of coercion. A review of records in military tribunals indicates that five lower-level detainees at Guantánamo were initially charged with offenses based on information that was provided by or related to Mr. [Abu]Zubaydah. Lawyers for these detainees could argue that they needed the tapes to determine what, if anything, Mr. Zubaydah had said about them.

Think: Khalid Sheik Mohammed and Ramzi Binalshibh. I'm wondering whether it could also result in reversals of the convictions of Zacarias Moussaoui and Jose Padilla.

The known detainees whose interrogation videos were destroyed are Abu Zubaydah and Abd al-Rahim al-Nashiri. Undoubtedly, more will come to light as the investigation proceeds. I won't be surprised if interrogation tapes of Khalid Sheikh Mohammed and Ramzi Binalshibh were also destroyed. In that case, they might be deprived not only of potentially exculapatory information by Zubayah but of their own statements for use at their upcoming military commission trials.

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Abu Zubayah was arrested in March, 2002. He was interrogated under "harsh techniques" including waterboarding. He gave up Khalid Sheik Mohammad and identified and provided incriminating information about Jose Padilla.

In his early F.B.I. interviews, Mr. Zubaydah, who had been badly wounded during his capture, identified Khalid Shaikh Mohammed as the chief planner of the Sept. 11 attacks. He also identified Jose Padilla, an American who was convicted in a Miami federal court in August on terrorism-related charges, as a low-ranking follower of Al Qaeda.

Government officials said that during Mr. Zubaydah’s interrogation sessions, his C.I.A. questioners used a number of tactics: noise, stress positions, freezing temperatures, isolation and waterboarding, in which a subject is made to believe he is being drowned. Mr. Zubaydah is the first person known to be subjected to waterboarding by the United States after the Sept. 11 attacks.

Human Rights Watch, in its report on secret detentions, wrote this about Zubayah:

Zubayda was reportedly in U.S. custody in Pakistan under CIA control, as of June 2002.

According to Time magazine, a “well-placed American military official” said that the U.S. had initially looked for an ally to conduct an interrogation. “Someone is going to squeeze him…We’ve been out of that business for so long that it's best handled by others. …It's not pulling out fingernails, but it's pretty brutal.” However, confirming his capture on April 3, 2002, Defense Secretary Donald H. Rumsfeld said, “We have him. He is under U.S. control at the present time. We are responsible for him…. He is receiving medical care, and we intend to get every single thing out of him to try to prevent terrorist acts in the future.”

Both the Washington Post and the New York Times, however, reported that U.S. officials initially withheld painkillers from Zubayda, who was shot during his capture, as an interrogation device.

When Zubayda was captured, the debate between the CIA and FBI over interrogation tactics reportedly re-heated (after the al-Libi case, above). This time, FBI Director Robert S. Mueller III reportedly decided to hold back FBI involvement. “Once the CIA was given the green light . . . they had the lead role,” a senior FBI counterterrorism official told the Washington Post.

U.S. officials say that Zubayda has provided intelligence on al-Qaeda’s efforts to build a “dirty bomb” and that his information helped lead to the arrest of Jose Padilla, the American allegedly plotting to use such a weapon in the United States. U.S. intelligence and national security officials told the Washington Post that Zubayda’s information led to the apprehension of other al-Qaeda members, including Ramzi Binalshibh, Omar Faruq, Rahim al-Nashiri, and Muhammad al-Darbi. All four remain under CIA control. The 9/11 Commission report refers to the intelligence reports of seven interrogation sessions with Zubayda, dating from February 2002 to April 2004.

One interesting aside: According to a report at the time, during his interrogations, Zubayah said Osama bin Laden refused to work with Saddam Hussein. Khalid Sheik Mohammed said the same thing.

Abu Zubaydah, a Qaeda planner and recruiter until his capture in March 2002, told his questioners last year that the idea of working with Mr. Hussein's government had been discussed among Qaeda leaders, but that Osama bin Laden had rejected such proposals, according to an official who has read the Central Intelligence Agency's classified report on the interrogation. In his debriefing, Mr. Zubaydah said Mr. bin Laden had vetoed the idea because he did not want to be beholden to Mr. Hussein, the official said.

Separately, Khalid Sheikh Mohammed, the Qaeda chief of operations until his capture on March 1 in Pakistan, has also told interrogators that the group did not work with Mr. Hussein, officials said.

The Bush administration has not made these statements public, though it frequently highlighted intelligence reports that supported its assertions of links between Iraq and Al Qaeda as it made its case for war against Iraq.