Sheesh, what would happen to one of us if we intentionally destroyed evidence after being twice ordered by a federal judge to produce it, and after telling that judge that the tapes do not exist?
Zubaydah had been seriously wounded in a firefight before his capture and survived only because the CIA, which held senior al Qaeda captives in secret overseas prisons, arranged medical treatment, he said.
Hayden noted that President Bush said publicly in September 2006 that ``Zubaydah had more information that could save innocent lives, but he stopped talking.''
The tactics were adopted, he said, ``on a solid foundation of legal review.''
That foundation, crafted by lawyers from the Justice Department's Office of Legal Counsel, provoked controversy and would be voided if the pending federal legislation is enacted.
After the agency determined that ''its documentary reporting was full and exacting,'' Hayden said, it halted the videotaping in 2002. Another senior al Qaeda figure, suspected Sept. 11 coordinator Ramzi Binalshibh, was captured in the fall of 2002, but it couldn't be learned whether he was videotaped during questioning.
Moussaoui's lawyers sought access to about a half dozen al Qaeda captives, including Zubaydah and Binalshibh, while defending Moussaoui against capital conspiracy charges.
On their request, in May 2003, Brinkema ordered the government to produce any video or audiotapes in its possession of interrogations of unidentified captives, but was told none existed. In late 2005, months after Moussaoui pleaded guilty to conspiracy charges but before his death-penalty trial, the judge again sought any interrogation tapes and was again told none existed.
The development isn't expected to affect Moussaoui's case, because he pleaded guilty, and it would be unlikely that defense lawyers could prove that the tapes included exculpatory material.
Hayden said the CIA's inspector general examined the tapes in 2003. The tapes had no intelligence value, Hayden said, and given ''the absence of any legal or internal reason to keep them,'' they were destroyed because they ``posed a serious security risk.''
Also, does this mean Padilla has a basis to seek a retrial?