The Justice Department's Payback
New York Times
January 4, 2008

WASHINGTON — The Justice Department's criminal inquiry into the destruction of the Central Intelligence Agency interrogation tapes will be carried out largely by agents from the Federal Bureau of Investigation, which has been sharply at odds with the C.I.A. over the agency's interrogation practices.

In some law enforcement circles the prospect of the F.B.I. interviewing high-level C.I.A. officials, under the plan announced on Wednesday, and rummaging around the files of the agency's secret interrogation programs represents a payback moment in the rich history of rivalry between the agencies.

Since the Sept. 11 attacks, F.B.I. officials have refused to allow agents to take part in C.I.A. interrogations in which harsh methods were used, questioning the effectiveness of the techniques. Others have feared agents might be compromised if they later testified in criminal cases. Some former F.B.I. officials have been among the most vocal critics of what the C.I.A. calls enhanced interrogation techniques.

Some of the sharpest disputes between the agencies have focused on the interrogation of Abu Zubaydah, one of two terrorism suspects whose interrogations were shown on the destroyed tapes. The tapes showed harsh interrogation techniques and were destroyed, according to the C.I.A., to protect the identities of personnel involved.

Some government officials have insisted that the most successful parts of the interrogation of Abu Zubaydah came when F.B.I. agents, using nonconfrontational interview techniques, extracted a wealth of information from him before the C.I.A. authorized a tougher approach.

C.I.A. officials have said their tactics are responsible for extracting the most important information from Abu Zubaydah. President Bush has cited the Abu Zubaydah interrogation as an example of the success of the C.I.A.'s program.

Leaders of both agencies have asserted for years that cooperation and coordination between the F.B.I. and the C.I.A. on counterterrorism issues have increased significantly since the 2001 attacks, which by accounts from each side is true.

Nevertheless, despite the official pronouncements that the rivalry has ended, the investigation will be carried out against a backdrop of ill will that pervades the culture of the two agencies.

Law enforcement officials said Thursday that past disagreements would not influence the F.B.I. investigation into the destroyed tapes. They insisted that the inquiry would be handled in a professional manner under the direction of a Justice Department team led by John H. Durham, a career federal prosecutor from Connecticut.

Intelligence officials have said they will cooperate fully with the criminal inquiry, as they have with similar inquiries in the past.

Mr. Bush said Thursday that the White House would cooperate with the investigation. "I strongly support it," Mr. Bush said in an interview with Reuters. "And we will participate."

Mr. Bush, who was asked during the interview whether he was concerned that the investigation might raise questions about his counterterrorism policy, replied: "See what it says. See what the investigation leads to."

In another development on Thursday, Representative Jane Harman, a California Democrat, released a letter she sent to the C.I.A. in February 2003 in which she expressed concern both about the agency's interrogation techniques and the agency's intent to destroy videotape of Abu Zubaydah. The fact that Ms. Harman had expressed those concerns was reported last month, but the contents of the letter had not been released.

The letter, recently declassified at Ms. Harman's request, was written shortly after she received a classified briefing about the intelligence agency's detention and interrogation program because she had become the senior Democrat on the House Intelligence Committee.

The letter, dated Feb. 10, 2003, says that Ms. Harman was informed five days earlier by Scott W. Muller, then the agency's top lawyer, that the C.I.A. planned to destroy the tape after its inspector general had completed an inquiry into the agency's detention and interrogation program.

In the letter, Ms. Harman urged C.I.A. officials to reconsider their plan to destroy the videotape, which she said "would reflect badly on the Agency." The letter from Ms. Harman asked whether White House officials had determined that the interrogation methods used by the C.I.A. were "consistent with the principles and policies of the United States" and whether President Bush had personally approved the methods.

In a brief reply, dated Feb. 28, 2003, and also released by Ms. Harman on Thursday, Mr. Muller did not answer directly, saying only that "a number of Executive Branch lawyers" had participated in the determination that "in the appropriate circumstances, use of these techniques is fully consistent with U.S. law." The reply did not address the issue of videotapes.

Feuding between the F.B.I. and the C.I.A. dates to the founding of the intelligence agency in 1947. In recent years, the agencies' intramural debates have been sharpened by disputes about whether the C.I.A. or the F.B.I. bore greater responsibility for missing signals that might have uncovered the Sept. 11 plot before the attacks.

F.B.I. officials have long argued that the C.I.A. failed to warn federal agents of the arrival in the United States of two Saudi men, Nawaq Alhazmi and Khalid al-Mihdhar, who later took part in the Sept. 11 hijackings and were on the flight that struck the Pentagon. C.I.A. officials said the agency had turned over to the F.B.I. all travel records about the two men.

Mark Mazzetti contributed reporting.

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