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Published on Thursday, January 10, 2008 by The Washington Post

Ex-CIA Official May Refuse To Testify About Videotapes

by Dan Eggen and Joby Warrick

A former CIA official at the center of the controversy over destroyed interrogation videotapes has been blocked by Justice Department officials from gaining access to government records about the incident, according to sources familiar with the case.

The former official, Jose Rodriguez Jr., has also told the House intelligence committee through a letter from his attorney that he will refuse to testify next week about the tapes unless he is granted immunity from prosecution for his statements, the sources said.

The panel has issued a subpoena for Rodriguez, the former chief of clandestine operations who issued the order to destroy the videotapes in 2005. He and other former CIA officials are also being blocked from gaining access to documents about the incident, sources said.

The fast-paced maneuvering comes as part of an escalating, three-way confrontation between Congress, the Justice Department and a group of former CIA officials involved in the decision to destroy the videotapes, which showed the use of harsh interrogation tactics on two suspected al-Qaeda operatives in 2002.

Attorney General Michael B. Mukasey announced last week that the Justice Department had opened a criminal investigation into the tapes' destruction, even as lawmakers vowed to continue pursuing their own inquiries into the episode. Former CIA officials have begun seeking outside counsel and some, including former CIA director George J. Tenet, have hired attorneys to represent them, sources say.

In a related development yesterday, a federal judge in Washington declined to intervene in the CIA tapes case, saying that there is no evidence the Bush administration defied court orders and that Justice Department prosecutors should be allowed to proceed with their own investigation.

U.S. District Judge Henry H. Kennedy Jr. said in a three-page ruling that a group of inmates held at Guantanamo Bay, Cuba, "offer nothing to support their assertion that a judicial inquiry" is necessary into the tape destruction. He said neither of the detainees whose interrogations were taped and later destroyed has an apparent connection to the prisoners who were demanding the review.

Kennedy also wrote that he expects the Justice Department "will follow the facts wherever they may lead and live up to the assurances it made to this court."

The CIA disclosed last month that it had destroyed hundreds of hours of CIA videotape showing coercive interrogation tactics used on two senior al-Qaeda suspects: Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, and Abd al-Rahim al-Nashiri. CIA Director Michael V. Hayden said the tapes had been destroyed to protect the identities of interrogators, but other CIA officials have said they were destroyed to protect the interrogators from potential prosecution.

Rodriguez's attorney, Robert S. Bennett, declined to comment yesterday on details about his client's case or on any communications he has had with Congress.

"Unless there is an agreement of some kind, he has to show up," Bennett said of Rodriguez. "His options are to testify or not testify. That's all I can say at this point."

A Justice Department spokesman declined to comment on the ongoing investigation, which is being headed by John Durham, a longtime career prosecutor from Connecticut.

Congressional aides said the House intelligence committee's chairman, Rep. Silvestre Reyes (D-Tex.), and other lawmakers have not begun discussing how to respond to Bennett's immunity request for Rodriguez.

Committee staffers in recent weeks have begun sifting through several hundred pages of internal documents related to the case, which has been gathered together at CIA headquarters in Langley and made available for classified review.

But sources close to the case say that Rodriguez and other former officials are not being granted access to the same files. Most defense attorneys would advise a client against testifying or cooperating with a congressional investigation without access to such documents, according to sources and legal experts.

Several other current and former CIA officers also have sought outside legal help, fearing that they may be eventually become entangled in the tapes controversy. Roy Krieger, a Washington attorney who specializes in intelligence cases, says he has been approached by two officers and has heard from others of a growing nervousness in the intelligence community.

"They are very scared because of the depth and breadth of the investigation," Krieger said.

He added that the prospect of massive legal bills -- many CIA officers lack legal insurance -- is equally frightening to some. "They're looking at second mortgages and dipping into college education funds to pay the bills," Krieger said.

Staff researcher Julie Tate contributed to this report.
© 2008 The Washington Post

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