1 Boring Old Man

Key omission in memo to destroy CIA terror tapes
Washington Post
By MATT APUZZO and ADAM GOLDMAN
July 26, 2010

^{WASHINGTON — When the CIA sent word in 2005 to destroy scores of videos showing waterboarding and other harsh interrogation tactics, there was an unusual omission in the carefully worded memo: the names of two agency lawyers. Once a CIA lawyer has weighed in on even a routine matter, officers rarely give an order without copying the lawyer in on the decision. It’s standard procedure, a way for managers to cover themselves if a decision goes bad. But when the CIA’s top clandestine officer, Jose Rodriguez, told a colleague at the agency’s secret prison in Thailand to destroy interrogation videos, he left the lawyers off the note. The destruction of the tapes wiped away the most graphic evidence of the CIA’s now-shuttered network of overseas prisons, where suspected terrorists were interrogated for information using some of the most aggressive tactics in U.S. history…}

^{Interviews with current and former U.S. officials and others close to the investigation show that Rodriguez’s order was at odds with years of directives from CIA lawyers and the White House. Rodriguez knew there would be political fallout for the decision, according to documents and interviews, so he sought a legal opinion in a way to gain needed legal cover to get the tapes destroyed – but not so much that anyone would stop him. Leaving the lawyers he had consulted off his cabled order to destroy the tapes was so unusual that a top CIA official noted it in an internal e-mail just days later. The omission is now an important part of the Justice Department’s 2 1/2-year investigation into whether destroying the tapes was a crime…}

^{In November 2002, CIA lawyer John L. McPherson was assigned to watch the videos and compare them with written summaries. If the reports accurately described the videos, that would bolster the case that the tapes were unnecessary. McPherson concluded in January 2003 that the summaries matched what he saw. With that assurance, the CIA planned to destroy the tapes. But lawmakers who were briefed on the plan raised concerns, and the CIA scrapped the idea, agency documents show. The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance. Near the end of a May 2004 meeting between CIA general counsel Scott Muller and White House lawyers, the conversation turned to the scandal over photos of abuse in the military’s Abu Ghraib prison in Iraq. National Security Council lawyer John Bellinger’s question was almost offhand: Does the CIA have anything that could cause a firestorm like Abu Ghraib? Yes, Muller said.}

^{David Addington, a former CIA lawyer who was Vice President Dick Cheney’s legal counsel, was stunned that videos existed, officials said. But he told Muller not to destroy them, and Bellinger and White House counsel Alberto Gonzales agreed, according to documents and interviews with former officials. That order stood for more than a year. Muller’s successor, John Rizzo, received similar instructions from the next White House counsel, Harriet Miers: Check with the White House before destroying the tapes…}

^{Despite the White House orders, momentum for destroying the tapes grew again in late 2005 as the CIA Thailand station chief, Mike Winograd, prepared to retire. Winograd had the tapes and believed they should be destroyed, officials said. At CIA headquarters, Rodriguez and his chief of staff agreed. Winograd did not return several messages from the AP seeking comment. On Nov. 4, 2005, Rodriguez asked CIA lawyer Steven Hermes whether Rodriguez had the authority destroy the tapes. Hermes said Rodriguez did, according to documents and interviews. Rodriguez also asked CIA lawyer Robert Eatinger whether there was any legal requirement to keep the tapes. Eatinger said no. Both Eatinger and Hermes remain with the agency and were unavailable to be interviewed. But both told colleagues they believed Rodriguez was merely restarting the discussion. Because of previous orders not to destroy the tapes, they were unaware Rodriguez planned to move immediately, officials told the AP.}

^{Rodriguez told Winograd to request approval to destroy the tapes. That request arrived Nov. 5. Rodriguez sent his approval three days later. He and his chief of staff were the only names on the cable. Had he sent a copy also to the CIA lawyers – Rizzo, Hermes or Eatinger – or even to CIA Director Porter Goss, any of them could have intervened. "Before Jose did what he did, he was confident it was legal, that there was no impediment to him doing it," his lawyer, Robert Bennett told the AP. "And he always acted in the best interest of the U.S. and its people." It took about 3 1/2 hours to destroy the tapes. On Nov. 9, Winograd informed Rodriguez the job was complete. Goss and Rizzo wouldn’t find out until the next day.}

^{Rizzo was angry and Miers livid, according to internal CIA e-mails. Goss agreed with Rodriguez’s decision, the e-mails said, but predicted he’d get criticized for it. Rodriguez was undeterred. "As Jose said, the heat from destroying is nothing compared to what it would be if the tapes ever got into public domain – he said out of context, they would make us look terrible; it would be devastating to us," said an e-mail from an aide to the agency’s No. 3 official, Kyle "Dusty" Foggo. Such statements could be used as evidence if prosecutor John Durham seeks charges in the case. Even if Rodriguez genuinely worried about the safety of his officers and wasn’t trying to obstruct an investigation, if he feared the tapes might someday be made public, that could be enough to violate the Sarbanes-Oxley obstruction law…}

 

What’s new in today’s report is that Jose becomes the mastermind behind destroying the tapes. He asked the lawyers about his authority, but in a way that had them answering a hypothetical. And when he ordered the tapes destroyed, he copied noone who could have stopped him, including the consulted lawyers. In the words of the spy-thrillers, he was "off the reservation" [acting on his own].

So Jose Rodriguez had the guilty mind – mens rea ["they would make us look terrible. It would be devastating to us…"] and the guilty action – actus reus [he ordered the tapes destroyed without directly consulting superiors]. In addition, if I’m right, there was a specific mens rea [covering his own ass because he was on the tapes in person or directing the interrogations]. That’s Obstruction of Justice no matter what language you use. No wonder John Durham won’t give Rodriguez immunity to get him to testify. And emptywheel has a post up correctly pointing out the obvious flaw in this AP report [The AP’s “Most Complete Published Account” that Leaves Out Torture]. They leave out the fact that Zubaydah’s torture antedates any approval from the DOJ OLC, and the whole issue of experimentation by the torturing psychologists.