The CIA and the Archives

A top official at the National Archives has asked the CIA to explain the destruction of hundreds of hours of videotapes showing the use of harsh interrogation techniques against Al Qaeda suspects, according to a copy of the letter obtained by NEWSWEEK.

Written by Paul M. Wester Jr., director of the Archives' modern records program, the letter asks for a response within 30 days. It notes that under the Federal Records Act, "no federal records may be destroyed" by agencies without first getting approval from the Archives to dispose of the material. "We are unaware of any CIA disposition authority that covers these records," Wester wrote.

In addition, the Archives official notes that under separate federal rules enforced by his agency, no material requested under the Freedom of Information Act may be destroyed either. If, for example, a news organization or any other person had made a Freedom of Information Act request to see the tapes, the regulations "precluded their destruction until resolution" of the case, Wester wrote. As it turned out, there was at least one FOIA request to see the tapes. After the CIA disclosed that the tapes had been destroyed on Dec. 6, lawyers for the American Civil Liberties Union said that they had long ago requested that the CIA release all records or other material—including videotapes—of interrogations of terror suspects.

"We have received the letter and we'll certainly respond," CIA spokesman Mark Mansfield said Friday. "The bottom line is that these videotapes were not federal records as defined by the Federal Records Act." He pointed to the original statement by CIA director Michael Hayden, in which Hayden said that the videotapes had been destroyed only after the agency determined they were no longer of intelligence value and "not relevant to any internal, legislative or judicial inquiries."

The CIA's destruction of the tapes is already under investigation by the Justice Department and the House and Senate Intelligence Committees. Those probes are exploring whether the agency obstructed justice when it destroyed the tapes. Furthermore, the congressional committees want to know if the CIA failed to properly notify Capitol Hill.

The letter from the Archives appears to raise questions about how closely CIA lawyers reviewed the decision to destroy the tapes. Separately, Rep. Henry Waxman, chairman of the House Government Reform Committee, wrote National Archivist Allen Weinstein his own letter last week, asking whether the CIA's tape destruction violated the federal records law.

The Federal Records Act cited in Wester's letter was passed by Congress in 1950 and generally requires the preservation of all official government records. The law defines records broadly as all material "regardless of physical form or characteristics" that is "made or received" by an agency and which constitutes "evidence of the organization, functions, policies, decisions, procedures, operations or activities of the government or because of the informational value of data in them."

Mansfield did not explain why the CIA didn't find the destroyed videotapes to be "records" as defined under the law. But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.

Susan Cooper, a spokeswoman for the Archives, said the Archives have the authority to make referrals to the Justice Department when it determines that an agency has violated the records act, although it has not done so in recent years. Justice can then impose civil fines on the individuals involved in the unauthorized destruction of records, she said.