A special prosecutor cleared CIA employees ... of any criminal charges for destroying videotapes that showed waterboarding of terror suspects, even though two sources close to the case say a key witness was never questioned. The sources, who spoke on condition of anonymity, said that special counsel John Durham never issued a grand jury subpoena for testimony from Jose Rodriguez, the CIA's former top clandestine officer, who approved the destruction of the tapes. Rodriguez' lawyer, Bob Bennett, had made clear that his client would not testify without a grant of immunity. But Durham's failure to call Rodriguez, or even question him as a witness, surprised one lawyer close to the case, indicating it could raise questions about the special counsel's claim that he had conducted a thorough" investigation. The decision not to prosecute anyone in the videotape destruction came five years to the day after the CIA destroyed its cache of 92 videos of two al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being subjected to waterboarding, which evokes the sensation of drowning. The deadline for prosecuting someone under most federal laws is five years. Jamell Jaffer, a lawyer for the ACLU, criticized the decision. "The problem here is not just the destruction of the tapes, but what the tapes depicted " interrogators using barbaric methods endorsed at the highest levels of the government."