"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubayda and Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.
"But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."
The CIA began videotaping interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole, in April 2002, four months before Bush administration attorneys issued a memo clearing the way for CIA interrogators to use "enhanced interrogation techniques," the DOJ had disclosed in court documents.
As Truthout previously reported, Some of the interrogation sessions captured on the videotapes showed Zubaydah being subjected to torture methods not yet approved by an August 2002 Justice Department's Office of Legal Counsel (OLC) memo written by attorneys John Yoo and Jay Bybee.
Specifically, these sources said, Zubaydah was subjected to repeated sessions of "water dousing," a method that at the time interrogators used it on Zubaydah was described as spraying him with extremely cold water from a hose while he was naked and shackled by chains attached to a ceiling in the cell he was kept in at the black site prison.
The OLC did not approve the use of water dousing as an interrogation technique until August 2004. Use of the method is believed to have played a part in the November 2002 death of Gul Rahman, a detainee who was held at an Afghanistan prison known as The Salt Pit and died of hypothermia hours after being doused with water and left in a cold prison cell.
Other videotapes showed Zubaydah being subjected to extended hours of sleep deprivation before the interrogation method was approved by OLC, which one current and three former CIA officials said was part of a larger experiment to determine how long a detainee could endure the technique.
In December 2007, the timeframe when the New York Times first revealed that the videotapes were destroyed, American Civil Liberties Union filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU in September 2004 related to the CIA's interrogation of "war on terror" detainees.
The videotapes were also withheld from attorneys and the 9/11 Commission, which requested records related to the CIA's interrogations of detainees.
Durham was appointed special prosecutor by Attorney General Michael Mukasey in January 2008 to lead a criminal inquiry into the tapes' destruction based on a recommendation by the DOJ's National Security Division and the CIA Office of the Inspector General.
Since that time, DOJ spokesman Miller said Tuesday, "a team of prosecutors and FBI agents led by Mr. Durham has conducted an exhaustive investigation into the matter."
Mukasey did not give Durham the authority to investigate whether any of the torture techniques depicted on the videotapes violated anti-torture laws. Last year, House Judiciary Committee Chairman John Conyers proposed expanding the scope of Durham's investigation to include a broader review of the Bush administration's interrogation policies.
But Conyers was rebuffed and he did not pursue the matter further.
Alex Abdo, an ACLU attorney, told Truthout that the torture methods depicted on the videotapes "should be of more concern than the destruction of the tapes."
"That's the real issue," Abdo said. "We need a fuller investigation of the underlying facts."
Last August, Attorney General Eric Holder expanded Durham's mandate and authorized him to conduct a "preliminary review" of about a dozen cases of torture involving "war on terror" detainees, including al-Nashiri. Those cases had been previously closed by DOJ attorneys for unknown reasons.
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