WASHINGTON - CIA Director Michael Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and that they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.
The three White House officials at the briefing were David Addington, then Vice President Cheney's chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden's closed-door testimony before the Senate intelligence committee.
When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden's testimony. Another source said Harriet Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.
The ambiguity in the phrasing of Hayden's account left unresolved key questions about the White House's role. While Hayden's account suggests a somewhat ambivalent White House view toward the tapes, other sources indicated that administration officials, particularly Miers, clearly advised against destroying the videos.
Also unexplained was why the issue was discussed at the White House without apparent resolution for more than a year.
According to CIA officials, the videos recorded the response of two top al-Qaeda figures incarcerated in 2002 at secret prisons to a simulated-drowning technique known as waterboarding and other "enhanced techniques" meant to pry loose secret information about terrorist plans.
The tapes were destroyed in November 2005, after the existence of the secret prisons was disclosed by the Washington Post, in what the CIA says was a security measure intended to protect the identities of agency officers who participated in the interrogations.
The disclosures about Hayden's testimony came as the CIA, faced with a threat of congressional subpoenas, announced it would begin turning over documents related to the tapes to oversight committees as early as today.
Reversing an administration decision last week to defer any cooperation with Congress, the CIA also said for the first time that it would comply with lawmakers' requests to allow CIA officers to testify about the tapes.
Rep. Silvestre Reyes (D., Texas), who chairs the House intelligence committee, said yesterday that he would schedule a Jan. 16 hearing. He said he expected testimony from John Rizzo, the CIA's general counsel, as well as Jose A. Rodriguez Jr., its former director of operations and the official who is said to have made the decision to destroy the tapes.
"Subpoenas have been prepared. We hope we don't have to use them," Reyes said.
The New York Times reported, however, that officials said Rodriguez's appearance before Reyes' committee might involve complex negotiations over legal immunity.
The committee has requested a broad range of documents related to the tapes, as well as copies of memos and notes from the agency's nearly three-year internal debate over whether to destroy them. A CIA spokesman said the agency was already preparing to transmit the materials to Congress.
"We will work to make sure the committee knows everything it needs to know," the official said.
Hayden's message to lawmakers last week was that the White House officials neither advocated destroying the tapes nor counseled against their destruction.
Hayden became CIA director in 2006, after the tapes were destroyed. The ambiguity in his account of the White House briefings may be partly explained by the fact that he is relying on the recollections of others - chiefly agency lawyers whose decisions are now under congressional scrutiny, said one former senior attorney for the spy agency.
The handling of the tapes is now being investigated by Congress and the Justice Department as a possible obstruction of justice, and a federal judge has scheduled a hearing tomorrow into whether the CIA action violated orders to preserve evidence relevant to lawsuits filed by prisoners detained at Guantanamo Bay, Cuba.
The two al-Qaeda operatives, Abu Zubaida and Abd al-Rahim al-Nashiri, were interrogated by the CIA before being transferred to Guantanamo Bay in 2006.
Michael B. Mukasey, responding to allegations of political meddling with the Justice Department, is restricting discussions between his agency and the White House on criminal and civil cases.
The new rules
limit initial talks about prosecutions to top officials: the White House counsel and deputy counsel, and the attorney general and deputy attorney general. The associate attorney general would also be included on civil cases. The policy does not cover national security matters.
will advise the White House about such criminal or civil enforcement matters only where it is important for the performance of the president's duties and where appropriate from a law enforcement perspective," Mukasey wrote in a memo to department officials and U.S. attorneys.
have spent most of the year investigating whether last year's firing of U.S. attorneys was orchestrated by White House aides. Lawmakers also alleged that presidential aides may have pressed prosecutors to file voting-rights and political-corruption cases to benefit Republicans.