CIA Tapegate Just Doesn't Add Up

Of course it doesn't add up. With these guys, it never does.

The White House and Justice Department told the Central Intelligence Agency not to destroy its secret terror interrogation tapes, but the agency did anyway on the advice of some as yet unidentified CIA attorney. It almost makes you question the value of appointing presidential hacks and cronies: Why bother, if no one is going to listen to them?

Now that the investigations are underway, the legislators are in an uproar and the courts more than curious, it shouldn't be too long before at least some of the missing puzzle pieces come into view. That's good, because now the questions overwhelm the answers.

Let's start with what little we know. In November 2005, the approximate time at which the tapes were allegedly destroyed, the CIA was still insisting publicly that no such tapes existed. At was at this time that federal prosecutors and the CIA made this assertion to U.S. District Judge Leonie M. Brinkema, who was presiding over the terror conspiracy trial of Zacarias Moussaoui. While they were misleading a federal judge (and federal prosecutors) about the very existence of the tapes, CIA officials also evidently were canvassing the White House and Justice Department to determine whether there was any legal way to destroy them.

So what precisely did the CIA tell the White House and Justice Department about the agency's intentions to destroy the interrogation materials? Who is this attorney who purportedly gave Jose A. Rodriguez Jr., a high-ranking CIA official, the go-ahead to destroy the tapes? What was the legal rationale for such a conclusion? Did someone write a "tape memo" justifying the decision, the way someone wrote a "torture memo"? And how fully was that rationale shared with the Justice Department and the White House?

Speaking of which, how exactly did Harriet Miers (then at the White House) and Alberto Gonzales (then at the Justice Department) reply? The Post Sunday reported that when Miers was told about the existence of the tapes, she "told the CIA she was opposed" to their destruction. How did this "opposition" manifest itself? Did the White House counsel's office order the CIA not to destroy the tapes? If not, why not? Same goes for the Justice Department, which arguably had even more reason to warn the CIA against the destruction of evidence: It was material and relevant to a pending capital case (Moussaoui).

Last month, 18 months or so after Moussaoui's conviction, the government disclosed in a court filing that the tapes Moussaoui's lawyers had asked about, and which the judge had inquired into, actually did exist. The feds said that their affiants had mislead the court. And now we learn that not only did the tapes exist in 2005 when they were asked about, but they were intentionally destroyed at the time to suit the CIA's purposes.

Ponder that the next time a federal attorney stands up in court and promises that the government is shooting straight during its war of terror.

By Andrew Cohen |  December 10, 2007; 7:00 AM ET
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Comments

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Sir: Since when does a holder of evidence decide on it's own what is relevant without resort to a court's review? There are laws which protect "state secrets" and material which should remain classified. But those questions are answered by judicial review---you know, by conformity to the law. Well, we are no longer ruled by the law. It appears we are ruled by men---men from whom no one would buy a used car. Thank you, George Bush!

Posted by: crafter48@netscape.com | December 10, 2007 08:56 AM

You Americans are exotic. You seem to believe that the more you talk about what should be kept secret, the more democratic you are. No wonder foreign intelligence agencies avoid dealing with their American counterparts when possible. What they share with the CIA might very well end up in hearings on the Hill or even worse, in the Post. Why take that risk when it can be avoided by simply excluding Americans from the intelligence sharing loop?

Just think about how that hurts your opportunities to prevent the next September Eleven.

Posted by: Daniel from Finland | December 10, 2007 10:44 AM

The Law of the Jungle is survival.

And that is what our "leaders" were living by here, the law of the jungle.

The Rule of Law is a once and future factor, but at this point in history, it is nothing but a string of hypocritical words for our current administration to hide behind.

This ultimate Lawlessness came to our government through the CEO realm, the same one that rules Wall Street's royalist ups and downs, and managed Enron into obscurity and failure. They ARE the NEOcons, we should call the CEOcons.

They are by no means, nor any stretch of the imagination, the paragons of free enterprise they deign themselves to be.

No-bid book-cooking monopolists in capitalist clothing, that is their true identity for future historians to one day sort out and identify.

Posted by: JEP | December 10, 2007 10:46 AM

There are no tapes. Oops, there were tapes, but they were destroyed. Is the next one going to be oops, again, here they are (just in time for the election)?

Posted by: JohnG | December 10, 2007 10:50 AM

Daniel, the Finn;

You would really like our state called Texas, you'd fit right in to some of the greasy diners and biker bars down there.

And you probably wouldn't even be profiled as an illegal immigrant, unless you're a native Lapplander.

BTW, "the next 9-11" just happened in Omaha, and it wasn't even a foreign terrorist. We have a domestic penchant for hate and fear that you Northern Europeans just can't seem to get a handle on.

You can order the Stars and Bars online, you know.

Posted by: JEP | December 10, 2007 10:57 AM

You know Cohen, you have a very very bad habit, particularly where it regards anything having to do with the Moussaoui trial, to leap to erroneous conclusions, for the simple reason is that you wouldn't want something so inconsequential as THE FACTS to get in the way of a good blog, would you?

Good lawyers (and judges)actually wait until they have heard BOTH sides of the story, before passing judgment, but gosh, that's no fun is it?

Castigate the ones YOU want to... (maybe because someone in a particular US Attorney's Office has a particular agenda that they want YOU to propound in your blog perhaps? Oh no, those things NEVER happen, do they?)

and....you're off!

Let me caution that you know nothing of the facts at this point, because the facts have not yet been gathered and made known.

And as far as those Moussaoui prosecutors, they are under federal investigation for prosecutorial misconduct, so obviously, there's a lot more going on here than would at first appear. Which is why I say once again: THINGS ARE NOT ALWAYS AS THEY SEEM, PARTICULARLY WHEN THERE IS A RUSH TO JUDGMENT.

You'd be well advised to think of that fact in the weeks to come.

Posted by: | December 10, 2007 11:01 AM

Is the CIA exempt from following the General Records Schedule which is in place to direct how government records are maintained, archived or destroyed? [The National Archives and Records (NARA) Administration administers it.]

Also, can anybody make a case for the tapes being the equivalent of "working notes?"

Up until the time the tapes holders became aware of a crime being committed, or an investigation into a possible crime being committed, they were simply working with "records," not "evidence."

Nixon left very cogent advice to future bureaucrats when he said that he should have destroyed his tapes.

Posted by: DC | December 10, 2007 11:39 AM

Andrew -

Despite what the White House says, do you think that one of VP Cheney's minions told the CIA to detroy the tapes? I think that is a plausible fact scenario.

By the way, with Scotter Libby dropping the appeal of his conviction, doesn't this now remove any so-called impediments to both President Bush and Vice President Cheney speaking on this topic? (Especially since Fitzgerald has indicated that the investigation is closed.)

Posted by: Buster | December 10, 2007 12:09 PM

Everyone in the intelligence business knows that "information" extracted under torture is worthless. So why were they doing it? Everyone knows when the CIA does something a little shady that they shouldn't leave a trail of evidence. So why were they taping it? It looks to me as if the entire thing were staged for the sole purpose of retaliating against the CIA in case they tried to call the Bush/Cheney bluff on Iran, which of course they just did.

Posted by: rich97 | December 10, 2007 12:30 PM

DC- you raise an excellent point about the records retention matter. Were the tapes subject to being destroyed pursuant to that act, which generally means 2 or 3 years after such records were made, and were the tapes in question even subject to such a statute? Generally federal records ARE subject to destruction after a certain period of time UNLESS:

1. The records (here: CIA tapes) are responsive to a special records request for information, such as the 9/11 Commission requests for documents, or other such investigative body that had specifically made a request for documents that would have included the CIA tapes. The CIA has said that the tapes were destroyed after the 9/11 Commission completed its work.

2. That the CIA tapes were responsive to a specific document request in a court case requesting such records. Now here, you have the situation, (such as in the terrorist cases that have been referenced in connection with these tapes) were the tapes actually responsive to a particular defense request to produce those tapes? In other words, the defense's request for production to the Government could have been worded in such a way as to NOT INCLUDE the specific CIA tapes in question. I am not saying that is the case, the DOJ is gathering information about that matter now. But my point is, the CIA lawyers who were working with the prosecutors in a particular case, may have known about the tapes existence, but did not produce those tapes back in the time period when the documents were requested by the defense, simply because they did not fit within the defense's request for information.

It appears that the CIA lawyers in the Moussaoui case found out themselves quite recently that the CIA tapes had been destroyed- or that they did know, but that the documents were not responsive to the defense request for information in the first instance. Once they found out however, they complied with their duties as officers of the court and advised the DOJ that the tapes had been destroyed, that the court would have to be so advised, and DOJ did that, because DOJ represents the CIA in court.

But that is just speculation, because we don't know what the Moussaoui court was told about the matter, and the circumstances as to why the CIA wanted the court to be told about the destruction of the tapes at this point, either.

However in a criminal prosecution, you have the question of whether the CIA tapes in question would constitute "Brady" material, i.e., any document or record that is arguably favorable to the defendant. Now, If THAT was the case, that is a whole different matter: BECAUSE THE PROSECUTORS THEMSELVES MUST PERSONALLY SEARCH THE AGENCY RECORDS FOR BRADY MATERIAL.

And so the interesting question in these so-called "terrorism" trials becomes: What did the prosecutors know about these CIA tapes when the defense document requests went out, huh? And did the tapes arguably constitute "Brady" material?

We'll have to wait and see what the investigation reveals. One thing is for sure, you don't go around slandering and blaming people until you know what the facts are.

And as far as destruction of records: An agency employee(s) DOES NOT go destroying any documents within the USG unless it is done strictly and solely within the federal statutes governing records retention and destruction, (and CIA may have its own records/retention policy that is of course not made public) AND that the top lawyers in the agency know and approve of such actions in advance, and that there is/are written memo(s) to that effect, documenting the action taken.

Posted by: LawBlogger | December 10, 2007 01:09 PM

The tapes are unimportant, except to reveal
the identity of the target and the CIA Agents involved. Thats the reason for destruction of the Tapes.
The interrogation of Khalid Sheikh
Mohammed in 2003 revealed a range of planned atacks and other Al Quida agents
plotting to attack targets in the United
States. If KSM had been identified,many
of those agents would have gone into hiding, and the attacks activated before
the CIA could stop them.

Torture is a word which covers a thousand
definitive acts, some harmless. A more
important question: is it right to use
methods on an enemy of the US to reveal
information which will save thousands of
American lives ??

Posted by: Espionage Agent | December 10, 2007 01:28 PM

Of course CIA destroyed the tapes. Why in the world would they preserve visual evidence of operatives committing war crimes?

Posted by: | December 10, 2007 01:59 PM

I don't think they would do this witout Bush's ok. Remember the outing of a cia agent which is treason. Bush and his entire administration were a part of it. Therefor the pardon of scooter libby. The most corrupt administration in history.

Posted by: hutch | December 10, 2007 02:00 PM

Some of the Clarence Darrows out there in the ether are real pieces of work. "Rush to judgment" is now the euphemism du jour for stalling in order to get your story straight.

In any event, Cohen is spot on. Judges have gained yet another reason to question the candor of DOJ attorneys in terror trials.

Posted by: sy | December 10, 2007 02:06 PM

Actually, Cohen is anything BUT "spot on" which is a real problem-he prefers to slander first, get the facts later. That's not the mark of a good lawyer.

Posted by: | December 10, 2007 02:15 PM

P.S. "SY": I take it then, that it is ok to "rush to judgment" and NOT get the facts straight? Because that is what you appear to be saying, in which case I would label someone of your ilk the real "piece of work" and would hope that you aren't a lawyer, because that's not what lawyers do: you can't do anything without the facts.

Posted by: | December 10, 2007 02:18 PM

What facts are you referring to that are not in existence as of this very moment: that the CIA destroyed two secret terror interrogation tapes; whether the DOJ and CIA represented to the 9-11 commission and a federal district court that such materials did not exist?

Those facts are part of the public record. Perhaps you are incapable of understanding that.

Posted by: sy | December 10, 2007 04:28 PM

Sy, I think you're the "rush to judgment" case for the other posters above.

Remember Howard Baker's bottom line question, "What did the President know, and when did he know it?"

There were a lot of versions of "the facts" flying around during the Watergate investigation. But, only when time was taken to piece the correct facts together did we know the truth.

Your approach does sound like a rush to judgment to me. Even those we don't like and think are stealing the country from us are entitled to the presumption of innocence and Due Process.

How many lynchings took place because "the mob" had all the facts which they needed?

When the CIA acted, and what authorities they were bound by at that time are critical to whether or not the people who destroyed the tapes did anything wrong.

And if it was wrong, was it a violation of government regulations or a violation of Title 18 of the U. S. Code? There's a significant difference, you know.

Posted by: Mark Lane | December 10, 2007 05:28 PM

The first line above should have read, "Sy, I think you're making the "rush to judgment" case for the other posters above."

I rushed too much.

Posted by: Mark Lane | December 10, 2007 05:30 PM

I have not reached the issue of legal consequences for the CIA as a result of their conduct, which conduct is a matter of public record and not in dispute. Whether such conduct constitutes a crime has not been adjudged. But that is quite apparent.

I do appreciate the use o the rush to judgment euphemism.

Posted by: sy | December 10, 2007 05:40 PM

Interesting comment that Cong. John Conyers made just this afternoon regarding the appointment of a special prosecutor to look into the CIA tape destruction, an action called for by Sen. Joe Biden.

Conyers said:

If it looks like the Justice Department wouldn't be able to conduct a thoroughly neutral, impartial investigation themselves -- if they were more deeply involved than anyone knows at the moment -- that would tend for me to support that position," Conyers said.


We'll see, won't we? All that dirty laundry is going to come out in the next few weeks.

By the way, has anyone been following the Sears Tower terrorist trial? Jury came back with a note today on the seven defendants- the so-called "Liberty City Seven"-DEADLOCKED!

The court has asked them to go back and try to reach a unanimous verdict. Each of the 7 face more than 70 years each for the alleged terrorist "plot."

If the jury cannot reach a verdict, that is yet another very very bad blow for the DOJ's prosecutorial policies on the so-called "war on terror."

Posted by: LawBlogger | December 10, 2007 06:58 PM

This is so completey disgusting! Here we are the most powerful nation in the world, the supposed example in Rule of Law in third world country violating basic and fundamental rules of fair play! What the CIA did in destroying these tapes for whatever reason may be illegal. The agents who were on those tapes should have to testify under oath, if that means anything to them, and reconstruct what was on those tapes. The truth needs to come out!!! Otherwise, we are no different than the very countries we constantly condemn!

Posted by: Adriana | December 10, 2007 08:06 PM

maybe, just maybe, the destruction of these tapes also reveals that not only is the military questioning decisions by this administration but that the cia has had enough. they have been made the scapegoats on too many occasions, more often than not, not just their mistake. this administration has made decisions and issued orders that have denigrated the integrity of our military and cia. maybe the cia has finally been able to retaliate for the 'outing' valerie plame and for all of the misguided orders from this administration. maybe they are also saying, here bush adminstration swing in the breeze with this! it seems this administration has too much to lose to allow anyone at the cia to be prosecuted for this destruction of tapes and evidence.

Posted by: rick | December 10, 2007 08:30 PM

http://jonathanturley.org/2007/12/10/cia-interrogation-tapes-bad-is-hardly-the-word-call-it-criminal/#more-808

Bad Is Hardly the Word For Destruction of CIA Tapes: Call It Criminal

I had wrapped up testifying before the House Judiciary Committee last week when a Republican Member caught me in the hall to say that yet another torture story was about to break. "It's bad," he grumbled. Bad is hardly the word to describe the disclosure that the Bush administration had ordered the destruction of tapes of the interrogation of al-Qaeda leader Abu Zubaydah -- it's criminal.

The admissions made by CIA Director Michael Hayden now establish an impressive array of alleged crimes -- allegations that would easily justify a grand jury investigation in any other case. It is equally clear that some of these alleged criminal acts involved President Bush directly (most obviously, the ordering of the torture of suspects) and a variety of high-ranking administration officials.

At issue are tapes of the interrogation of Zubaydah and Abd al-Rahim al-Nashiri (the alleged mastermind of the 2000 attack on the USS Cole), which reportedly involved the use of waterboarding. Invented during the Spanish Inquisition, waterboarding has been defined as a federal crime and a war crime by both U.S. courts and international law. The tapes were made in 2002. That date is important because the use of torture was already in the news and many, including myself, were charging that anyone ordering or engaging in such torture could be prosecuted. More importantly, both the 9/11 Commission (acting under Congressional authority) and federal courts had demanded interrogation tapes but were told that they did not exist.

In 2005, the Senate Intelligence Committee repeatedly tried to determine if CIA interrogators were complying with interrogation guidelines. The CIA refused twice in 2005 to provide the committee with its general counsel's report on the tapes.

Not only were these tapes relevant to pending cases, but it was clearly relevant to these two suspects who would seek the evidence in any future proceeding. Now, it appears that the administration not only lied to Congress and the courts but also destroyed evidence. The CIA maintains that no specific demand was made for these specific tapes and that absent knowledge of a pending or likely future proceeding, it was not obstruction to destroy the tape. That is precisely the argument repeatedly rejected by the Justice Department in past criminal cases.

Hayden told CIA employees that the agency destroyed all copies of the video in 2005. Hayden said that one of the motivations was to guarantee that the identity of those doing the interrogation would never be made public. Thus, while courts and Congress and defense counsel were all being told that no such tapes existed, copies of the tapes and still pictures were being methodically collected and destroyed. Hayden's rationale is a virtual admission of obstruction of both Congress and the courts.

In what may be as disturbing for some voters, Hayden pointedly implicated Democrats in the controversy, stating that the CIA told oversight committees of its intention to destroy the evidence. Two Democrats have now admitted that they knew of the plan: Sen. Jay Rockefeller (W.Va.) and Rep. Jane Harman (Calif.). They insist that they did not know whether the plan was carried out -- but they did nothing to stop it.

Moreover, it now appears that Democrats and Republicans knew of the use of torture for years. According to The Washington Post, various leaders were briefed on the use of waterboarding in 2002, including now-Speaker Nancy Pelosi (D-Calif.).

Recently, the White House admitted that former White House counsel Harriet Miers was also informed of the plan to destroy the tapes. The White House insists (as do the Democratic Members) that she strongly encouraged the CIA not to carry out the plan. Once again, this is obviously insufficient. Miers was counsel to the president who could have ordered the preservation of the tapes. She was aware of a plan that was presumptively unlawful and did nothing apparently but object.

The man most at risk in this scandal is Jose Rodriguez, who retired as head of the CIA's clandestine directorate of operations in August. It was Rodriguez who reportedly ordered the tapes destroyed.

However, Rodriguez is not alone as a possible target. Then-CIA Director Porter Goss insists that he did not know that the tapes were destroyed. However, he promoted Rodriguez and was the head of the House Intelligence Committee when it was informed of the plan to destroy the tapes. According to new reports, Goss was informed of the tapes' destruction "a couple of days" after it happened, but decided to do nothing. He never informed Congress, the courts or counsel. Once again, he can best claim nonfeasance -- and a degree of incompetence -- as a defense.

Then there is the general counsel of the CIA during this period, Scott Muller. Muller was the one who informed Congress and thus knew of the plan. As an attorney, he is subject to bar rules concerning unlawful and unethical conduct. He could face an investigation on whether he should be disciplined or even disbarred for his role.

There are at least a dozen individuals who should be retaining private counsel in this matter. However, it is still not clear that either Republicans or Democrats truly want an independent investigation. Notably, Democrats have largely called for investigations by the Justice Department, which guarantees that the investigation would move at a glacial pace and remain under the control of the administration. It is obvious at this point that the Justice Department should not conduct an investigation that could threaten high-ranking officials, including the president himself.

We are now at a crossroad in history. On just the admissions made by Hayden, there appear to be at least six indictable offenses against at least a dozen individuals, including the president. That number of offenses and offenders is likely to increase in the coming week, but clearly include obstruction of justice, obstruction of Congress, false statements to Congress, false statements to federal courts, conspiracy and, of course, torture. The question is not the clarity of the crimes, but the will of Congress to finally act and guarantee an independent investigation.

Despite the embarrassment to some Democrats, there is no way to continue to ignore a pattern of criminality that extends to the highest office in his country. These were crimes committed in our name and it is time for the disclosure of the truth -- wherever it may lead.

Jonathan Turley is a law professor at George Washington University and lead defense counsel in pending terrorism cases.

Roll Call December 11, 2007

Posted by: Chartreuse | December 10, 2007 08:31 PM

And so, what, Chartreuse, that makes Turley the be-all and end-all of knowledge here? Sorry, but it's a little early for you to be prejudging and handing out indictments in this matter because you see YOU DON'T KNOW THE FACTS, ANY BETTER THAN TURLEY OR COHEN OR ANYONE ELSE DOES, OKAY?

As far as the terrorism cases go, Turley and other defense lawyers need to look at whether the tapes were Brady material-and whether, and to what extent, the DOJ prosecutors who are responsible for Brady material, knew about the tapes, what they told the courts abou the tapes, and what they were told by the CIA about the tapes-that comes first and foremost, as far as the terrorism cases go.

The fact of the matter is DOJ is implicated in this matter, ALSO-BECAUSE CIA DOES NOT MOVE ON LEGAL ISSUES WITHOUT DOJ CONSULTATION AND CONSENT. Now, is it possible that the CIA head of clandestine operations, this Jose Rodriguez, made the decision to destroy the tapes without informing the general counsel of the CIA or other CIA counsel? Of course it is, and if he violated internal CIA policy, he will have to deal with the ramifications of having taken unilateral action without authorization.

Posted by: LawBlogger | December 10, 2007 10:08 PM

That's exactly how these high level obstructors of justice operate. Remember, they made it clear that the only crime worthy of punishment among the corpses in America's rape rooms was taking snapshot photos. That sent a message to the domestic minions of torturers. But let's be clear -- a brave whistleblower is alleging torture, destruction of evidence and obstruction of justice -- on US soil. And he issued repeated urgent warnings to protect evidence before evidence was destroyed. Many Republi-cans wrongly believe that it is ok to torture if you are torturing frogs or Islamiacs. But in this case, torture and much more racketeering was conducted against an American hero, business leader and leading intellectual property owner for purely economic and political reasons to enrich a cabal of professional racketeers with stolen property.

Posted by: Berg | December 11, 2007 04:26 AM

Let's not wait til Fred Hiatt claims to be shocked before we realize that he is not the most credible writer on these pages. Obviously the seriousness of repeated, clandestine, domestic torture transcends politics and perhaps only Republicans will have the spine to aggressively take on a sophisticated criminal cabal. (No oxymoron intended) But let us not forget how the screams of an exemplary American subjected to sophisticated criminal schemes including domestic torture make Abu Ghraib look quaint.

Posted by: Nick | December 11, 2007 04:27 AM

newyorker.com/archive/2004/05/10/040510fa_fact?printable=true
newyorker.com/archive/2004/05/17/040517fa_fact2?printable=true
newyorker.com/archive/2004/05/24/040524fa_fact?printable=true
newyorker.com/reporting/2007/08/13/070813fa_fact_mayer?printable=true
newyorker.com/archive/2006/02/27/060227fa_fact?printable=true
newyorker.com/archive/2006/03/27/060327crbn_brieflynoted1

Posted by: The American Way | December 11, 2007 04:33 AM

That's exactly how these high level obstructors of justice operate. Remember, they made it clear that the only crime worthy of punishment among the corpses in America's rape rooms was taking snapshot photos. That sent a message to the domestic minions of torturers. But let's be clear -- a brave whistleblower is alleging torture, destruction of evidence and obstruction of justice -- on US soil. And he issued repeated urgent warnings to protect evidence before evidence was destroyed. Many Republi-cans wrongly believe that it is ok to torture if you are torturing frogs or Islamiacs. But in this case, torture and much more racketeering was conducted against an American hero, business leader and leading intellectual property owner for purely economic and political reasons to enrich a cabal of professional racketeers with stolen property.

Let's not wait til Fred Hiatt claims to be shocked before we realize that he is not the most credible writer on these pages. Obviously the seriousness of repeated, clandestine, domestic torture transcends politics and perhaps only Republicans will have the spine to aggressively take on a sophisticated criminal cabal. (No oxymoron intended) But let us not forget how the screams of an exemplary American subjected to sophisticated criminal schemes including domestic torture make Abu Ghraib look quaint.

newyorker.com/archive/2004/05/10/040510fa_fact?printable=true
newyorker.com/archive/2004/05/17/040517fa_fact2?printable=true
newyorker.com/archive/2004/05/24/040524fa_fact?printable=true
newyorker.com/reporting/2007/08/13/070813fa_fact_mayer?printable=true
newyorker.com/archive/2006/02/27/060227fa_fact?printable=true
newyorker.com/archive/2006/03/27/060327crbn_brieflynoted1
http://harpers.org/subjects/NoComment

Posted by: NYSE Leader | December 11, 2007 05:22 AM

"The fact of the matter is DOJ is implicated in this matter, ALSO-BECAUSE CIA DOES NOT MOVE ON LEGAL ISSUES WITHOUT DOJ CONSULTATION AND CONSENT." Lawblogger

"Well, when the president does it that means that it is not illegal."
Richard M. Nixon

Posted by: sy | December 11, 2007 07:48 AM

It was probably just some Justice Dept. young lawyer babe recently graduated from Pat Robertson's Regent University Christian Law School who approved the destruction. The Whitehouse will make sure the CIA gets scape-goated again.

http://www.boston.com/news/education/higher/articles/2007/04/08/scandal_puts_spotlight_on_christian_law_school/

Posted by: Johnny E | December 11, 2007 12:20 PM

Andrew Cohen writes: "The White House and Justice Department told the CIA not to destroy it's secret terror interrogation tapes....."
You're a liar Andy. The White House and Justice Department ADVISED the CIA to not destroy these tapes. The word 'advise' means to give an opinion to, to councel, to warn and similar explanations. It was not a presidential or Justice Department order as you try to spin it in order to slime them politically.
And you call yourself a journalist? Yeah, right and pigs fly!

Posted by: madhatter | December 11, 2007 03:49 PM

madhatter, after a thorough independent investigation it should be much more clear exactly what the White House's role was in the destruction of evidence. There also the matter of torture itself, which would subject anyone who engaged or signed off on the activities to legal jeopardy. No wonder Bush is engaging in some variant of the memory defense. He doesn't "recall" details in reference to this matter? Right, and the U.S. does not torture. Sure thing GWB.

Posted by: JP2 | December 12, 2007 12:23 AM

The US and the CIA has a long history of torture. For those unfamiliar with that read an excellent article at Tom Dispatch
http://www.tomdispatch.com/post/174873/greg_grandin_on_the_torturable_and_the_untorturable

[quote]Then again, for background, Gorman offers this on Rodriguez: He is, she writes, "a product of what one former agency colleague called 'the rough-and-tumble' Latin American division" of the CIA from the 1980s. "Rough and tumble"? You won't find out what that means from her column, but just keep reading this post. In our period, men like Rodriguez, under the leadership of George W. Bush, have essentially globalized those "rough and tumble" methods of the CIA's Latin American division. As Greg Grandin -- whose superb book, Empire's Workshop: Latin America, the United States, and the Rise of the New Imperialism, nails those "rough-and-tumble" years -- points out, they have turned the "unholy trinity" that the U.S. developed in Latin America into a global operation."[/quote]

The words of the German protestant pastor Martin Niemoeller, who got arrested during the second world war and sent to a concentration camp bears repeating:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I did not speak out;
I was not a Jew.

When they came for me,
there was no one left to speak out.
[source: http://www.cassiopedia.org/wiki/index.php?title=Martin_Niem%C3%B6ller ]

Posted by: J. Simenon | December 12, 2007 08:20 AM

You were warned about the destruction of evidence before the destruction of evidence in 2003.

PUBLIC NOTICE:

The decision to pursue Conrad Black was politically motivated.

The zealotry of the outlandish charges directed against him at the outset of the case hint at the cynical nature of the prosecution.

This is not a comment on the details of the case nor a defense of him. This is a whistleblower with specific and grave information who has been trying to warn that the decision to destroy him was politically-motivated and not an isolated case but merely the tip of the iceberg of a vast series of aggressive political dirty tricks enabled by the unlimited and unprecedented expanded powers provided to cronies of the Executive Branch.

Posted by: WhistleBlower One | December 12, 2007 02:49 PM

How come all the liberals now whining about our NSA/CIA waterboarding and torturing captured terrorists now didn't make a peep about it when Bill Clinton was sending captured terrorists to Egypt and Jordan for interrogations? Waterboarding done by the Egyptian and Jordanian interrogators of these terrorists then must have been a picnic compared with what probably went on. Selective outrage maybe?

Posted by: madhatter | December 12, 2007 03:12 PM

Examples madhatter. Please, not some spurious, fact-free statement that you heard on Rush Limbaugh. Give me something concrete.

What I do know is that following the 1993 attack on the World Trade Center we were able to round up those involved and collect some first rate intelligence using methods that were entirely above board. Isolation was used, but no stress positions, water-boarding, or electric shocks. Nothing that remotely came within the scope of Geneva Conventions 1, 3, or 4.

The end result was substantially higher quality intelligence than what is ever likely to be produced through coercive means. That's part of what makes this whole debate so ridiculous -- not only is the Bush administration on the wrong side of the moral and legal arguments; they are wrong on a pragmatic level as well. Even to the extent that torture does produce useful intelligence, it tends to undercut longer term objectives. Water boarding didn't win wars for the Nazis or the Japanese in WWII. It didn't win the final French colonial wars in Indochina or Algeria either. It won't make the U.S. immune from future terror attacks either -- it is only likely to further increase our vulnerability.

Posted by: JP2 | December 12, 2007 08:59 PM

JP2 : "Examples please, not some spurious fact-free statement that you heard on Rush Limbaugh. Give me something concrete"

Go to 'Ask.Com', type in 'rendition program by bill clinton' and you'll find hundreds of facts that all you liberals have conveniently 'forgotten'.

Here's a couple of facts
ABC NEWS ON LINE: CIA renditions began under Bill Clinton. The US CIA's controversal rendition program was launched under US President Bill Clinton, a former US counter-terrorism agent has told a German newspaper. Michael Scheuer, a 22-year veteran of the CIA, who resigned from the agency in 2004, has told Die Zeit that the US administration has been looking in the mid-1990's for a way to combat the terrorist threat and circumvent the cumbersome US legal system. 'President Clinton, his national security advisor Sandy Berger and his terrorism advisor Richard Clark ordered the CIA in the autumn of 1995 to destroy Al Qaeda' Mr. Scheuer said 'We asked the president what we should do with the people we capture'. Clinton said 'That's up to you'. Mr. Scheuer, who headed the CIA unit that tracked Al Qaeda leader Osama bin Laden from 1996 to 1999, says he developed and led the renditions program. He said the program includes moving prisoners without due legal process to countries without strict human rights protections. 'In Cairo people are not treated like they are in Milwaukee' he said.

This from ACLU's "Safe and Free" site re. the rendition program:
"Foreign nationals suspected of terrorism have been transported to detention and interrogation facilities in Jordan, Iraq (Saddam Hussain run), Egypt, Diego Garcia, Afghanistan , Guantanamo, and elsewhere. In the words of former CIA agent Robert Baer "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear--never to see them again--you send them to Egypt"

There's much more, but the only people I'm seeing who are making "spurious fact--free statements" are the liberal Democratic Party--pimps like yourself who are trying to slime the Bush administration for something that they're primarily responsible for and did themselves when their guy was in office. All of you ignored it then and even condoned it. Selective outrage JP2? No doubt about it!

Posted by: madhatter | December 12, 2007 11:17 PM

Madhatter, of course "Clinton did it, Clinton did it." Although the ABC article on the rendition policy does not state exactly what the terms of the program were, whether the U.S. engaged in torture; who was involved.

All of this, of course, avoids the key question.

Are the principles of George Washington, the Constitution, and our own tradition something that we should jettison in the name of fears regarding terrorism?

More importantly, what exactly should we do in cases where there have been clear violations of the law by federal officials?

If Clinton did in fact do something on the scale of what Bush's people are alleged to have done, I think he should be held accountable as well. I have seen no evidence though to suggest even a remote level of comparability in terms of the scope or scale of his intelligence collection programs.

For the sake of argument though, let's say he did. Exactly what standard would you apply in that situation?

Posted by: JP2 | December 13, 2007 12:25 PM

JP2
Standards? Get real!
If waterboarding saves American or Westerners lives, it's worth it especially when these Al Qaeda terrorists use by far more brutal tortures against us.

Nina Easton, political commentor on the Fox News Brit Hulme Show reported (12/11 I believe--and co-oberated by Charles Krauthammer) that when Al Qaeda leader Abu Zabayda was waterboarded he gave up all he knew in 35 seconds. Nina Easton also reported that several Al Qaeda--planned terrorist attacks were twarted, including a planned--attack on a British School in Pakistan that would have killed hundreds of children.
While you liberals have conveniently ignored Bill Clintons rendition program, which if anything was much harcher than Bush's, you'd have more credibility on this waterboarding and torture issue had you liberals been equally upset when your guy did it.
It depends on whose ox is being gored, right JP2?

Posted by: madhatter | December 13, 2007 11:01 PM

The idea that waterboarding "saves" lives is just plain outlandish. The tactic may prevent an attack in the short run, but it will increase the likelihood of attacks in the long-run -- at least if recent history is any guide (the French in Algeria being a prime example -- perhaps the most relevant to our current conflict). So we compromise our values and more Americans get killed in return in the long-run. Not smart.

There's a reason that every president going back to Washington has been against torture -- and there's a reason that the U.S. has prosecuted U.S. soldiers for engaging in the tactic going back to the Spanish-American War and Germans and Japanese following WWII. There's a reason that people like John McCain who understand what torture is in a concrete way are against it. And there's also a reason that FORMER powers such as the Soviets, Nazis, and imperial Japan are so closely associated with the practice of torture.

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