By now I'm certain all of you have seen the news that the CIA destroyed hundreds of hours of video tapes showing the detainment, questioning, and torture of two al Qaeda suspects. The tapes, they feared, might open the CIA to legal jeopardy, a fairly safe assumption given that torture has in fact been explicitly illegal for the better part of a century. The tapes were evidence of the commission of a crime, and what better way to deal with criminal behavior than to destroy the evidence?
Initially the CIA tried to claim that lawmakers had been notified about both the existence and impending destruction of the tapes, but that excuse fell apart in a matter of hours. With calls for serious congressional investigations mounting - the CIA, after all, apparently withheld the tapes from a number of different legal proceedings, compounding the legal issues involved - the DoJ and White House are moving as quickly as possible to get out in front of the story. And their approach? To throw the entire CIA under the wheels of the bus.
White House and Justice Department officials, along with senior members of Congress, advised the Central Intelligence Agency in 2003 against a plan to destroy hundreds of hours of videotapes showing the interrogations of two operatives of Al Qaeda, government officials said Friday.
The chief of the agency’s clandestine service nevertheless ordered their destruction in November 2005, taking the step without notifying even the C.I.A.’s own top lawyer, John A. Rizzo, who was angry at the decision, the officials said.The disclosures provide new details about what Gen. Michael V. Hayden, the C.I.A. director, has said was a decision “made within C.I.A. itself” to destroy the videotapes. In interviews, members of Congress and former intelligence officials also questioned some aspects of the account General Hayden provided Thursday about when Congress was notified that the tapes had been destroyed.
Current and former intelligence officials say the videotapes showed severe interrogation techniques used on two Qaeda operatives, Abu Zubaydah and Abd al-Rahim al-Nashiri, who were among the first three terror suspects to be detained and interrogated by the C.I.A. in secret prisons after the Sept. 11 attacks.
Top C.I.A. officials had decided in 2003 to preserve the tapes in response to warnings from White House lawyers and lawmakers that destroying the tapes would be unwise, in part because it could carry legal risks, the government officials said.
But the government officials said that Jose A. Rodriguez Jr., then the chief of the agency’s clandestine service, the Directorate of Operations, had reversed that decision in November 2005, at a time when Congress and the courts were inquiring deeply into the C.I.A.’s interrogation and detention program. Mr. Rodriguez could not be reached Friday for comment.
As the chairman of the House Intelligence Committee in 2003, Porter J. Goss, then a Republican congressman from Florida, was among Congressional leaders who warned the C.I.A. against destroying the tapes, the former intelligence officials said. Mr. Goss became C.I.A. director in 2004 and was serving in the post when the tapes were destroyed, but was not informed in advance about Mr. Rodriguez’s decision, the former officials said.
It was not until at least a year after the destruction of the tapes that any members of Congress were informed about the action, the officials said. On Friday, Representative Peter Hoekstra, the Michigan Republican who was chairman of the House Intelligence Committee from 2004 to 2006, said he had never been told that the tapes were destroyed.
This is the beginning of the classic Bush/Reagan "plausible deniability" defense. And I'm sorry, but we just cannot allow it to work this time.
There are really two essential questions here.
One: What was on the tapes? Kevin Drum does his best to answer that question here. As you read his explanation, pay particular attention to the role of the president here.
Two: Who ordered the destruction of the tapes, and when will they be brought before a congressional committee to answer questions about the matter under oath?
As I said above, the tapes were evidence for the commission of a crime. As a result their destruction in and of itself was criminal. This isn't about partisanship. This is about the rule of law.
UPDATE: Scott Horton offers some excellent analysis here and here. Two segments particularly worth highlighting:
But is the scapegoating strategy even marginally plausible? No, it isn’t. First, we have the opening volley—everything was disclosed and approved in advance. Even the oversight committees were briefed on this. Everything was kosher. So know we’re being told that they briefed Rockefeller and Harman, but not President Bush. Does anybody believe that for even a second? No, it’s not plausible. And all this relates to an issue that has involved the White House like no other issue since the Bush Administration began. The highly coercive interrogation program—the “Program”—was Dick Cheney’s baby. He lobbied the CIA to adopt it and turned to extraordinary measures to overcome their initial reluctance. (This is how we got the torture memoranda at Justice, after all). And let’s keep in mind that this is a White House in love with secrecy and the destruction of internal documents which might prove compromising. (Think: Dick Cheney and his visitors’ logs; think: Karl Rove’s missing emails, now put at 10,000,000 and counting).
The CIA tape destruction presents another test for the Rule of Law in America. It’s a test for Congressional oversight, and it’s a test for the Department of Justice. Michael Mukasey will have to decide whether he considers himself to be the nation’s principal law enforcement officer, or a loyal retainer of George W. Bush. He’s only a few days on the job and the path has clearly divided.
If our system works as it is intended to work, Mukasey will order the investigation be opened, and to hell with the political consequences. We were told during his confirmation hearings that he was a man of principle, a man who could be trusted to defend the rule of law. We knew from his previous decisions while on the bench that he has a tendency to defer to the executive during a time of crisis, but given the facts of this case, that shouldn't matter here. The president, we are now being told, had nothing to do with this illegal act. This is all, we are to believe, about the CIA. That simultaneously closes the door on arguments about executive power and executive privilege and opens wide the door on obstruction of justice. If Mukasey is how they say he is....
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