The Wall Street Journal | March 3, 2009
By Siobhan Gorman and Evan Perez

WASHINGTON -- The Central Intelligence Agency destroyed 92 videotapes from the agency's detainee interrogation program, a far larger number than previously believed, the Justice Department said in a court filing Monday.

The disclosures in a New York federal court case marked the first major step by President Barack Obama's administration to reveal details of the controversial detention program approved by the Bush White House after the terrorist attacks of Sept. 11, 2001.

The Obama administration is still uncertain about how to pursue allegations of wrongdoing against officials in the Bush administration. CIA Director Leon Panetta said last week he opposed prosecuting CIA officers who followed legal advice in putting suspects through such tactics as waterboarding, a form of simulated drowning that the Obama administration labeled torture.

At the same time, Mr. Obama is making significant breaks with the past, including the move Monday to disclose long-secret information. The government made the disclosures in response to a lawsuit filed by the American Civil Liberties Union seeking details of the CIA program.

"We want to give the people that work in the CIA the tools they need to keep us safe, but do so in a way that also protects our values," said White House spokesman Robert Gibbs.

The Justice Department on Monday released memorandums that had laid the groundwork for the Bush administration's broad assertion of presidential power, overriding congressional oversight, international treaties and constitutional freedoms.

In one memo, Department of Justice lawyers said the president could order the U.S. military to mobilize domestically to combat terrorism, in contravention of laws that generally prohibit such use of the military on U.S. soil. Other memos described the president's power to conduct surveillance without court warrants.

Many of the legal opinions were written by John C. Yoo, a former official in the Justice Department's Office of Legal Counsel, and now a professor at the University of California, Berkeley. The Obama administration is defending Mr. Yoo and other former Bush officials who are being sued over their national-security legal work. In an October 2001 memo, Mr. Yoo asserted that "the president has both the constitutional and statutory authority to use the armed forces in military operations, against terrorists within the United States." He added that such a move wouldn't be subject to Fourth Amendment restrictions on unreasonable searches and seizures so long as they are acting in a military, not law-enforcement, function.

The government also released memos from the final months of the Bush administration that renounced the legal reasoning of the early post-9/11 period. In one October 2008 memo, a top Justice official called earlier opinions "either incorrect or highly questionable."

A former Bush official involved in national-security policy took issue with the release Monday of the memos. "I think these guys want to make a show of criticizing their predecessors, but they aren't saying clearly what they would do in the same situation," said the official, who declined to be identified. "They're trying to satisfy their...base. On the other hand they're responsible for the safety of the country, so they want to keep the same options open to them."

Mr. Obama has retained the right to use some of the Bush administration's antiterror practices, including the transporting of detainees captured overseas to third countries for questioning.

The 92 destroyed tapes -- which were recorded in 2002 -- represent all of the videos taken in the CIA's interrogation program, a government official familiar with the matter said. They showed interrogations of two top al Qaeda operatives, Abu Zubaydah and Abd al-Rahim al-Nashiri, the official said. The men were detained overseas on suspicion of conspiracy in the Sept. 11 and other terrorist attacks.

Just a fraction of the tapes showed the two men being questioned, the person added. "Most of the tapes were of Abu Zubaydah. A few were of Nashiri," the official said. "Only about a dozen showed actual interrogations. The rest were basically just them sitting around."

When the tape destruction was first revealed in 2007, White House officials said President George W. Bush had no recollection or knowledge of the tapes or their destruction until a briefing as the news became public. Destruction of the tapes is the subject of an investigation by special prosecutor John Durham. He has signaled he is close to wrapping up his probe, according to people familiar with the matter.

Tapes as a Backstop

In 2007, then-CIA Director Michael Hayden defended the agency's handling of the tapes in a memo shortly before their destruction was publicly disclosed. "At one point, it was thought the tapes could serve as a backstop to guarantee that other methods of documenting the interrogations -- and the crucial information they produced -- were accurate and complete," he wrote to agency employees. "The agency soon determined that its documentary reporting was full and exacting, removing any need for tapes. Indeed, videotaping stopped in 2002."

Lawmakers were initially told only of the existence of a single tape showing Mr. Zubaydah, said California Rep. Jane Harman, who was the top Democrat on the House Intelligence Committee in 2003, when she warned the CIA not to destroy that tape. A committee spokeswoman said it was told in the past year that there were 92 tapes, after Rep. Harman departed the committee.

"My jaw fell through the floor," Rep. Harman said. "My impression was that this was a videotape. I never imagined it would be 92 videotapes." The CIA misled her, she said, and "it may also be a violation of law."

The revelation Monday prompted calls by the ACLU for further investigation of the Bush administration's CIA interrogation practices. "The agency must be held accountable not only for the destruction of the tapes, but also the illegal actions that are recorded on the tapes," said Amrit Singh, an ACLU attorney. She said the number of tapes destroyed indicated a coverup.

The Senate Intelligence Committee is preparing to expand an existing probe of the tape destruction into a broader examination of the CIA interrogation program.

Vermont Sen. Patrick Leahy has called for a broad investigation into Bush-era antiterrorism activities modeled on the independent 9/11 Commission. Ms. Harman said the new disclosure would give that effort more momentum.

Destruction Ordered

Jose A. Rodriguez Jr., then chief of the CIA's National Clandestine Service, ordered the tapes' destruction in late 2005, when the existence of secret CIA prisons had just been revealed, former agency officials said. Mr. Rodriguez retired from the agency in 2007, and his lawyer didn't return calls Monday.

The CIA had been ordered on Sept. 15, 2004, to preserve all documents that might respond to the ACLU lawsuit seeking disclosure on detainee treatment.

CIA spokesman Paul Gimigliano said the agency hadn't violated the law. "If anyone thinks it's agency policy to impede the enforcement of American law, they simply don't know the facts," he said, adding the CIA has been cooperating with the federal investigation.

Justice Department lawyers told federal district Judge Alvin K. Hellerstein on Monday they plan to provide more information on the 92 tapes, including summaries, transcripts and memos about them, as well as names of people who saw the tapes before they were destroyed. The CIA "intends to produce as much information as possible on the public record," the lawyers said.

As for the Bush-era legal memos, an official in the Obama Justice Department said the new releases weren't intended to embarrass the previous administration.

Bush administration lawyers who rejected post-9/11 legal opinions were careful to make clear their view that the earlier lawyers were trying to do their job in a difficult period. One of the memorandums released is dated Jan. 15, 2009, five days before President Obama's inauguration. It notes that the now-controversial opinions "were issued in the wake of the atrocities of 9/11."

The memo includes a footnote that disavows any suggestion lawyers were guilty of professional misconduct. It says the Bush administration at no time thought the earlier lawyers "did not satisfy all applicable standards of professional responsibility."