No criminal charges will be brought against Central Intelligence Agency (CIA) officials for destroying videotapes of controversial interrogations of terror suspects during the Bush administration, a federal prosecutor announced Nov. 9. US Department of Justice special prosecutor John Durham "has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes," said DoJ spokesperson Matthew Miller.

Durham was appointed in 2008 by then-attorney general Michael Mukasey to investigate the circumstances surrounding the destruction of CIA videotapes of the interrogation of suspected al Qaeda operatives Abu Zubaydah and Abd al-Rahim al-Nashiri, which allegedly depicted numerous instances of violence and "enhanced interrogation techniques" alleged to be torture. According to documents obtained and released by the American Civil Liberties Union (ACLU), former CIA head of clandestine services Jose Rodriguez ordered his staff to destroy the tapes on Nov. 9, 2005, after hiding their existence from the September 11 Commission, reportedly out of fear of backlash against the intelligence agency that might result if the tapes were made public. The DoJ's announcement coincides with the expiration Nov. 9 of the five-year statute of limitations for bringing obstruction of justice charges. ACLU executive director Anthony Romero criticized the decision:

This decision is stunning—there is ample evidence of a cover up regarding the destruction of the tapes. The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did. The destruction of these tapes showed complete disdain for the rule of law... Prosecutor Durham was charged with a criminal investigation into torture, and that investigation must include the people at the top, not just low-ranking officials. We cannot say that we live under the rule of law unless we are clear that no one is above the law.

The DoJ's announcement does not rule out the possibility of other charges against CIA officials in connection with the interrogation of Zubaydah and al-Nashiri, and there is speculation that other charges could still be filed, including ones related to obstruction of Durham's three-year investigation. Other charges still may come out of Attorney General Eric Holder's 2009 expansion of the probe to include investigations of CIA operatives' conduct during other interrogations at the agency's numerous "black site" detention facilities, investigations that remain ongoing.

Internal CIA documents released in April revealed that agency head Porter Goss may have supported the destruction of the videotapes. The documents, which are heavily redacted, show that Goss agreed with Rodriguez's order to destroy the tapes, despite being unaware of the order before it was carried out. Last year, it was revealed that 12 of the 92 tapes destroyed by the CIA contained evidence of "enhanced interrogation techniques." The DoJ had previously acknowledged that the CIA destroyed 92 videotapes in response to an August 2008 judicial order that the CIA turn over information regarding the tapes or provide specific justifications of why it could not release the information.

From Jurist, Nov. 10. Used with permission.

See our last post on the torture scandal.