Source: http://www.nytimes.com/2008/01/10/washington/10intel.html?ref=world

Ex-C.I.A. Aide Won’t Testify on Tapes Without Immunity

By SCOTT SHANE

WASHINGTON — A lawyer for Jose A. Rodriguez Jr., the former Central Intelligence Agency official who in 2005 ordered the destruction of videotapes of harsh interrogations of prisoners at a secret site overseas, has told Congress that Mr. Rodriguez will not testify about the tapes without a grant of immunity, a person familiar with the discussions said Wednesday.

The House Intelligence Committee has scheduled a closed hearing on the tapes’ destruction for next Wednesday, and John A. Rizzo, the C.I.A.’s acting general counsel, has agreed to testify.

The committee issued a subpoena last month for Mr. Rodriguez’s testimony. Since then, the Justice Department has opened a criminal investigation into the tapes’ destruction. Mr. Rodriguez’s lawyer, Robert S. Bennett, wrote to the committee last week, saying that in light of the investigation he would not allow Mr. Rodriguez to offer testimony that might subsequently be used against him, according to the person familiar with the discussions, who would not speak for attribution because of their confidential nature.

The immunity demand creates a quandary for the House committee, which rejected a request from Attorney General Michael B. Mukasey to postpone the Congressional inquiry. An offer of immunity for Mr. Rodriguez’s testimony could make prosecuting him difficult or impossible, legal experts say.

Mr. Rodriguez, who recently retired from the C.I.A., led the agency’s clandestine service in November 2005 when he sent a cable ordering the destruction of the tapes. The decision, which he made after consulting with two agency lawyers, followed a two-year debate inside the Bush administration.

Mr. Bennett declined to comment, as did a spokesman for Representative Silvestre Reyes, the Texas Democrat who is chairman of the committee.

In a related matter, Judge Henry H. Kennedy Jr., of the Federal District Court in Washington, declined Wednesday to order a hearing on the tapes’ destruction because of the criminal investigation. Lawyers representing 11 Yemeni men held by the United States at Guantánamo Bay, Cuba, argued last month that the tapes’ destruction raised “grave concerns” that the government had defied Judge Kennedy’s 2005 order to preserve evidence in their case.

In his three-page order, Judge Kennedy said the videotapes, recorded at a secret C.I.A. site overseas, had not been recorded at Guantánamo and were therefore not directly relevant to the treatment of prisoners at the detention center in Cuba.

Moreover, the judge wrote, his decision was “influenced by the assurances of the Department of Justice” that its criminal investigation would cover the issue of whether the tapes’ destruction “was inconsistent with or violated any legal obligations,” including his 2005 order.

Marc D. Falkoff, a law professor at Northern Illinois University and one of the lawyers for the Yemeni prisoners, said it was “not surprising that Judge Kennedy would take the Justice Department at its word.”

Lawyers in several other cases in which Guantánamo prisoners are challenging their detention are still seeking hearings on the tapes’ destruction.

David Johnston and Mark T. Mazzetti contributed reporting.