The Justice Department's terse announcement
Tuesday that it would not prosecute
any CIA officials for destroying evidence -- including videotapes of interrogation sessions with high-profile terror detainees -- marks a sorry milestone
in the annals of terror law following the attacks of September 11, 2001. The long-awaited decision -- by a special prosecutor
appointed in 2008 by Bush-era Attorney General Michael Mukasey
-- means two successive executive branch administrations will have successfully rebuffed both the judiciary and the Congress in an effort to protect overzealous intelligence officers who appear to have broken a few rules of law.
The controversy began in 2005 when Jose Rodriquez, a high-ranking CIA operative, ordered CIA officials
to destroy videotapes that showed harsh interrogation sessions with terror suspects, including Abu Zubaydah
. Rodriguez did so, he claimed, because CIA lawyers had told him he could (or at least hadn't specifically told him that he couldn't). The Agency secretly destroyed the tapes, it claimed
, to protect the identity of its interrogators. In the wake of the Abu Ghraib prison torture
scandal, the Agency also said it destroyed the tapes so that they would never become public and inflame opinion in the Middle East. These justifications -- and the fact that the tapes were gone before anyone outside of the CIA had a chance to review them -- became public approximately two years after
the tapes were destroyed.
In those intervening years, however, CIA officials did not share
any of this information with the Congress, which was holding oversight hearings into the Bush Administration's interrogation policies, or with the federal courts, which were begin to wade through the legal challenges to Bush-era detention policies, or even with the bipartisan 9/11 Commission, the distinguished group tasked with offering the American people the definitive account of the 9/11 terror attacks and their aftermath. The Agency simply didn't produce the tapes and didn't fully and fairly explain why it wouldn't and couldn't do so. This despite a 2005 court order which required the CIA to "preserve and maintain" evidence of its interrogations at Guantanamo Bay, Cuba. That's a classic case of contempt of court -- as every litigator in America will tell you.
Such evidence preservation orders are self-explanatory. It is a fundamental requirement of the rule of law in an open society that evidence be preserved and protected before trial. But even without the federal judge's order, high-ranking CIA officials, and certainly CIA lawyers, knew or should have known that the tapes were valuable evidence of the interrogations; evidence that surely was relevant to pending and future cases involving those who were interrogated. They knew or should have known that there are ways in which the identity of interrogators, like the identify of witnesses, can be protected in federal court proceedings. They destroyed the tapes, it is now clear, because they reckoned that even if they were caught, they'd never be prosecuted. And now they won't be.
When the story broke in late 2007, the Bush Administration dispatched Mukasey, a former federal judge and strong supporter of Bush-era terror law policies, to manage the political and legal damage caused by the CIA's conduct. Mukasey, in turn, appointed John Durham, a respected federal prosecutor from Connecticut, to investigate Rodriguez and Company to determine whether anyone at the CIA had violated federal law by destroying the tapes. Last year, Mukasey's successor, Attorney General Eric Holder, told Durham he could expand the scope of his investigation to look into whether private contractors may have violated contemporary Justice Department rules about interrogations. That part of Dunham's work, evidently, continues.
So, too, does Durham's investigation into whether any CIA officials may have obstructed justice
by misleading investigators about the existence (or not) of the tapes. But there is little reason to believe any indictments are forthcoming along these lines, either. Congress, which didn't pursue the matter much once Barack Obama became president, now seems even less likely following the midterm elections to pursue its own investigation into how and why the CIA was so willing to deceive lawmakers. And the federal courts? It's possible that one or more of the judges handling terror detainee cases may now push back further
against the CIA. But even so, a judicial contempt hearing for a CIA official is a far cry from a public investigation or a criminal trial. And no judge is likely to toss a case against a terror suspect because of the absence of those tapes.
For the White House, meanwhile, Durham's non-call call generates the opportunity for a convenient dodge. To its critics who say the Justice Department has not done enough to punish the officials who destroyed important evidence, the feds can say that it's all Durham's fault- the last Republican cover-up of the Bush era. To administration critics who say the Justice Department has gone too far already in its pursuit of the CIA's dirty business, the feds can say that Durham took three years to run out the clock and then brought not a single indictment. And thus once again is the Obama Administration willing and able to protect former Bush-era officials from legal exposure for terror law practices and policies. Somewhere, "torture memo" author John Yoo is smiling, again.
But for now, the big winner is Rodriguez, the CIA's fall guy who so far hasn't been forced to fall very far or very fast. After the no-go announcement from the Justice Department, Rodriguez's lawyer issued a statement declaring that his client: "is an American hero, a true patriot who only wanted to protect his people and his country." If Rodriguez is a hero and a patriot, he sure is a modest one. First, he took cover under CIA lawyers. Then he took cover under the 5th amendment's protection against self-incrimination, which means that Rodriguez didn't volunteer to come before a federal grand jury to tell his story privately to investigators (let alone to "his people" and "his country.") And you can bet he will take cover again if he is ever asked to testify as a witness in a terror trial involving some of the men interrogated on those tapes.
Me? I'm past the point of expecting the truth here. Maybe if I live another 30 years it will all come out in a declassification. In the meantime, I have much more modest goals. I'd like to see Rodriguez go to every law school in the country with a simple but eloquent message to students: "Kids," I want to hear him say, " 'patriots' and 'heroes' don't destroy evidence."