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CIA Destroys Terror Interrogation Evidence -- and Justice Looks Away

4 years ago
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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."

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Anna

Patriots and heros don't allow children to be targeted for death and assasination. Patriots and heros don't destroy people's home so they live in fear. Intelligent Lawyers don't go after something when the Statute of Limitation has expired.

And by the way, the Justice Department dropped the Case, because the interrogation tapes showed no torture. Just a basic by the book interrogation. Tapes were never destroyed - so again, you are allowed to have your own interpretation but you are not entitled to your own facts.

December 25 2010 at 4:14 PM Report abuse rate up rate down Reply
Anna

Dear Andrew Cohen - what proof do you have of your allegation?? I have proof of mine. How would you want your children hunted down by Al-Qa'ida and their hench men like foxes on a dog hunt. When you think with that happy thought, try sleeping late at night. I sleep with a healthy concious because I know the truth in FACT. All you believe is stuff you have not seen with your own eyes from Sources that are tools of our enemies.

Good luck with your life.

December 25 2010 at 4:11 PM Report abuse rate up rate down Reply
hrvdav8

This highlights the fact that Eric Holder is reflecting the administration's lack of direction. He is defending, ignoring and extending every violation of law and curtailment of individual rights that were the hallmarks of the Bush era. He has compounded this with a lack of effectiveness in moving forward the prosecutions of the worst terrorists and the ability to transfer those held in Gitmo to safe Supermax prisons where we currently hold convicted terrorists. AG Holder by refusing to prosecute those in government who have clearly broken the law or select a new Special Prosecutor has shown that there are those among us who are above the law. In arguing that the Plame Wilson v. Cheney case not be allowed to proceed, he has confirmed that political connections and high office are far more important that patriotism and hard work to safeguard the country. The actual protector of our national security was Valerie Plame Wilson as well as people like her. How many will put themselves on the line if they believe they can be sold out by our own elected officials and then be told that they have no recourse in the courts? What are we defending? What's good is bad, what's bad is good; everything is turned on it's head in the logic of Washington. How can an investigation and prosecution of wrong doing inflame the Middle East against us any more than what we do every day on the ground there? Wouldn't it be encouraging to those who doubt our commitment to the rule of law when it suits us, to investigate those powerful among us who have broken the law? Mr. Holder's actions underscore the belief in the world that President Obama's actions do not match his words. He can give a speech but will not follow through with policy. That is an insult to the intelligence of world leaders. It is also dangerous for national security because neither our friend nor our enemies know where we stand or trust that the President can or will follow through on his commitments. That un-predicability, lack of clear policy or doctrine and unreliability is the worst thing to convey to the world.

November 16 2010 at 1:35 PM Report abuse rate up rate down Reply
stiresrick

as consequence of W's decision to use torture, and as sickening and sad as our justice dept. failure to prosecute all those responsible is,what bothers me most is we've lost all future moral grounds to defend anyone against torture anywhere, any time,soldiers,civilians, friends and allies alike.That is Bush's and Cheney's legacy.

November 14 2010 at 8:23 PM Report abuse rate up rate down Reply
Juli

To the poster who justified torture by saying the world is an evil place, no, it isn't that the world is evil, but you and those like you who are evil and cowardly. You are willing to torture and destroy democracy and everything that this country is supposed to stand for, that our founders fought and died for just so you can feel a little safer. We are supposed to be the good guys, remember? How can we spread democracy if we are destroying it here at home?..................................(“Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.”). ~Matthew 25:31-45.....................................Proverbs 3:31 "Envy thou not the oppressor, and choose none of his ways." ...................................for the record, the world is as good or evil as we choose to make it.

November 11 2010 at 9:08 AM Report abuse -2 rate up rate down Reply
Daphnee

"Since the beginning of time there has been conflict", Well I learned from science that conflict actually is the catalyst to create life. It is up to each of us as to what kind of a life we give to the moment, what we bring TO THE CONFLICT. If people are OPEN to listening then conflicts are resolved and something NEW is created. If hostility, fear and narrow-minded views are brought to that moment then it is anybody's guess what will play out. We can choose. CONFLICT IS NECESSARY FOR LIFE TO EXIST. Think of conflict as THE OCEAN and it is up to each of us to learn how to navigate the waves, calm, storms, heat, cold, etc...

November 10 2010 at 9:33 PM Report abuse -2 rate up rate down Reply
Don

In a world of good guys and bad guys, the U.S. is no longer the good guys. That is the real shame. I hope we will be again some day, but it dosen't feel like it will be any time soon.

November 10 2010 at 9:03 PM Report abuse -2 rate up rate down Reply
tony

The CIA has always done great CYA and that is what they do after any operation, who didn't know that?

November 10 2010 at 8:11 PM Report abuse +2 rate up rate down Reply
snrar

They are going to be released on Wiki link !

November 10 2010 at 7:41 PM Report abuse -2 rate up rate down Reply
lillyluminatus

The videos did not show "harsh" interrogations. They showed TORTURE. I love how things like waterboarding were referred to as what they were--torture--by 100% of the media up until the day we started doing it. At that point, it's just "harsh."

November 10 2010 at 5:39 PM Report abuse +1 rate up rate down Reply

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