WASHINGTON — The CIA has three video and audio recordings of interrogations of senior al Qaida captives but misled federal judges about the evidence during the case against terrorist Zacarias Moussaoui, federal prosecutors revealed in a Nov. 9 court filing that was made public Tuesday.
The disclosure is unlikely to undo Moussaoui's conviction because the agency said the material on the tapes doesn't pertain to his case.
However, the disclosure that the government taped some interrogations of high-value detainees could invite fresh scrutiny of the CIA's treatment of so-called "enemy combatants" who were held at secret prisons or U.S. bases overseas.
John Radsan, a former CIA assistant general counsel who teaches at the William Mitchell College of Law in St. Paul, Minn., called the revelation of the tapes "huge" news.
"So far, there has been great mystery about what was actually done to the high-value detainees," he said. "A videotape is worth a thousand words."
New Attorney General Michael Mukasey's Senate confirmation last week was threatened for a time by his refusal to declare as illegal an interrogation tactic known as "waterboarding", in which a suspect is doused with water to create the sensation of drowning.
The government's letter said that "the CIA came into possession of the three recordings under unique circumstances involving separate national security matters," leaving unclear whether the tapes show CIA interrogations or possibly questioning by agents of another country. At least one senior al Qaida member, Ibn Sheikh al Libi, reportedly was turned over to Egyptian authorities for questioning in 2002, but much of what he allegedly confessed proved to be false.
Prosecutors revealed the existence of the tapes in a letter to Chief Judge Karen Williams of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and to U.S. District Judge Leonie Brinkema of Alexandria, Va., the trial judge in the tumultuous, 4 1/2 year prosecution of Moussaoui.
In it, they said that the CIA didn't notify them until Sept. 13 that it had discovered a videotape and the transcript of an interrogation of an unidentified detainee. Prosecutors said they then asked the CIA to perform "an exhaustive review" for any other recordings of roughly a half dozen al Qaida captives whom Moussaoui had sought as defense witnesses, and a second videotape and a brief audio tape were discovered.
Among the prisoners whose testimony Moussaoui sought were Khalid Sheikh Mohammed, who allegedly admitted masterminding the 9/11 attacks after he was waterboarded; Ramzi Binalshibh, a senior al Qaida member who allegedly coordinated the attacks; and financier Mustafa Ahmed al Hawsawi. Summaries of statements from those three and several others were read at his trial.
"The fact that audio/video recording of enemy combatant interrogations occurred, and that the United States was in possession of three of those recordings is, as noted, inconsistent with factual assertions in CIA declarations dated May 9, 2003 . . . and November 14, 2005," the prosecutors wrote.
"When the CIA discovered this material — and it was the CIA that found it — the agency brought the matter to the attention of the Department of Justice," CIA spokesman Paul Gimigliano said. He emphasized that "there was no prejudicial impact on the defendant."
Edward MacMahon, a defense lawyer who represented Moussaoui in his death penalty trial last year, declined to comment. A new team of defense lawyers who're handling Moussaoui's attempt to persuade an appellate court to allow him to withdraw his 2005 guilty plea didn't return calls.