- The Washington Times - Friday, January 4, 2008

The ranking Democrat on the House homeland security committee warned the CIA in 2003 against destroying videotapes of the agency’s interrogation of terrorism suspects and urged the CIA’s top attorney to reconsider the plan.

In a Feb. 10, 2003, letter to CIA General Counsel Scott Muller, Rep. Jane Harman of California said that even if the videotape did not constitute an official record that had to be preserved under the law, it would be “the best proof that the written record is accurate, if such record is called into question in the future.”

In questioning a CIA plan to destroy a videotape of the interrogation of a high-ranking al Qaeda terrorist, Abu Zubaydah, which had been described to the committee just days earlier, Mrs. Harman said its destruction “would reflect badly on the agency.”

“I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your office have made to address the tough questions,” she wrote.

“It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions,” Mrs. Harman wrote.

A copy of the declassified letter was released yesterday by her office. She requested the declassification after the destruction of two interrogations videotapes was acknowledged publicly by CIA Director Michael V. Hayden on Dec. 6.

Attorney General Michael B. Mukasey announced on Wednesday that the Justice Department had begun a formal criminal investigation into the tapes’ destruction after a preliminary inquiry and that he had named Assistant U.S. Attorney John Durham in Connecticut to head the probe.

In her letter to Mr. Muller, a copy of which went to then-CIA Director George J. Tenet, Mrs. Harman said the CIA assured the committee that the tapes’ destruction had been subject to an extensive review by lawyers at CIA, the Justice Department and the National Security Council and found to be within the law.

She demanded information on what kind of policy review took place and what questions were examined. She also asked whether the most senior levels of the White House had been involved in the decision to use harsh interrogation methods and, if so, whether they had determined that they were consistent with the principles and policies of the United States.

In a Feb. 28, 2003, response, Mr. Muller did not answer questions concerning the tapes’ destruction, saying only that a “number of executive branch lawyers, including lawyers from the Department of Justice,” participated in the determination that the use of harsh interrogation techniques was “fully consistent with U.S. law.”

President Bush said his “first recollection” of being told that the interrogation tapes had been destroyed was during a CIA briefing last month.

Mr. Hayden, who was not at the CIA in 2005 when the tapes were destroyed, briefed the Senate Select Committee on Intelligence behind closed doors on the agency’s 2005 decision to destroy the tapes. He said the tapes were destroyed to protect the identities of the interrogators, who could be subject to retribution by terrorists.

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