Did prosecutor know CIA destroyed tapes?

updated 9:22 p.m. ET Feb. 6, 2008

WASHINGTON - The lead prosecutor in the terrorism case against Zacarias Moussaoui likely knew the CIA destroyed tapes of its interrogations of al-Qaida suspects more than a year before the government admitted it to the court, newly unsealed documents show.

The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui's attorneys to send the case back to a lower federal court to find out why the tapes weren't disclosed and whether they would have influenced his decision to plead guilty.

In a Dec. 18, 2007, letter to the appeals court's chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA's tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.

The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes' destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible for the death penalty.

Moussaoui, a French citizen of Morrocan descent, pleaded guilty in April 2005 to his role in the Sept. 11 attacks. Spared the death penalty, he was sent to prison for life.

‘Does not recall being told’
Spencer, who was one of three prosecutors on the government's team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.

Another prosecutor in Rosenberg's office in Virginia's eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.

That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.

It is unclear what that project was.

Attempts to reach Spencer on Wednesday evening were unsuccessful.

Glimpse into court struggle
Much of the legal correspondence in the Moussaoui case has been classified and under court seal. The documents released Wednesday offer a glimpse into the court's struggle to determine for sure whether the CIA taped its interrogations of terror suspects.

Moussaoui pleaded guilty in 2005 to conspiring with al-Qaida to hijack aircraft, among other crimes. In a 2006 sentencing trial, a jury concluded that Moussaoui's actions furthered the Sept. 11, 2001, plot in which terrorists flew hijacked airliners into buildings in New York and Washington. But the jury ultimately decided to spare his life and sentence him to life in prison.

MORE FROM SECURITY

Security Section Front

Calls grow for probe of CIA al-Qaida program NYT: Cheney linked to hiding of CIA project Newsweek: Will YouTube be big mistake for Google? Ex-CIA boss: Congress knew of surveillance Lawmaker: Panetta terminated secret program Security Section Front   Add Security headlines to your news reader: