Breaking: The New York Times reports:
The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.
The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.
The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes. […]
Legal experts, including Daniel Marcus, former general counsel of the September 11 commision, which had requested all relevant material from the CIA and other federal agencies, told the paper that the legal consequences for knowingly destroying evidence and lying about it could be severe.
If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations. […]
John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 and is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties.
“If anybody at the C.I.A. hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute,” he said.
“I want to say ‘unbelievable’ but I find that I just shake my head thinking ‘why should I be surprised,'” emails attorney Mark Zaid, an attorney who frequently represents Agency employees. “This is yet another example of the arrogance that exists out there – ESPECIALLY WITH THE LAWYERS (several of whom would have been involved in this matter) – that the CIA is the king that can do no wrong. They believe they are above the law and will not stop acting that way until someone or something prevents them from doing so.”
More informed reaction from former Justice Department official Marty Lederman.