No Way Jose Makes the Right Call

Pretend for a second you are Jose Rodriguez, Jr., the former CIA official who, early on in the Tapegate scandal, has been fingered (rightly or wrongly) as a culprit behind the destruction of interrogation videotapes. You know the Justice Department has initiated a criminal proceeding on the matter. You know you have a date with a Congressional committee hot to make news at your expense. Wouldn't you, too, lawyer up and then exercise your constitutional right to remain silent?

You know you would. I would, too. Which is why the news that Rodriguez is doing precisely what you and I would do should come as no surprise to anyone, including the investigators and legislators who are gunning for him. In fact, I'm surprised Team Rodriguez didn't go public even earlier with this strategy since it "forks" his pursuers into making some fairly substantial and, in many ways, mutually exclusive choices.

For example, if the House Intelligence Committee were to grant Rodriguez immunity, it would be difficult for the Mukasey Justice Department to indict and convict him following its investigation. Nothing Rodriguez said before the committee could be used against him at a trial, if he ever went to trial. This is precisely why the attorney general asked the committee to hold off on its hearing -- and its immunity-granting-spree -- until after his investigation is concluded.

So what do we want here? Do we want fast answers at the potential expense of justice? Or do we want to privately explore the contours of Tapegate within the contours of a criminal case before we open the doors to public evaluation before Congress? It's not a trick question. If we choose the criminal investigation, we can always revert later to immunity for Rodriguez and his CIA pals. But if we choose immunity, we probably can't go back to the possiblity of criminal charges.

I don't blame Rodriguez for pushing his pursuers into this choice. I don't blame Mukasey for wanting to go first. And I await word on what the rocket scientists on the House Intelligence Committee decide to do with this totally expected wrinkle.

By Andrew Cohen |  January 9, 2008; 7:01 PM ET
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Give him immunity immediately predicated on complete disclosure, and let's find out how criminal this administration really is.

Addington and Miers are the big fish I'd like to land. I don't care about a CIA functionary doing what the White House operatives wanted.

Posted by: Egilsson | January 10, 2008 10:30 AM

I think we have to go with the old cliche: the wheels of justice grind slow, but they grind exceedingly fine.

The issue is simple: what is accomplished by granting immunity up front for the committee? That is a political issue, grand standing by the committee. There is nothing that will come out of those hearings that will be used to change the procedures or the law.

So let the Justice Department have their crack, find out who did what, why and when. Then go back and drag people before committee.

If Congress can allow Major League Baseball its time to investigate, they can allow the Justice Department time to do its job as well.

Posted by: Constitutionalist | January 10, 2008 11:39 AM

Mr. Cohen you have a unique comprehension of the conspiratorial mind.

Jose is an innocent civil servant just like Scooter was.

If he is bargaining immunity for testimony on the wrongs of others, then he knows of crimes against the constitution and will not expose them. His call for immunity is prima facie evidence of violating his oath to protect the constitution.

The media inundate us for years about a blue dress, but never question the motives of someone involved in crimes against humanity.

Why do I get the feeling that in the "squeeze" between congress and the DOJ that W will, like the Libby treason, never give any accounting to the american people?

Under Cohen's logic its perfectly respectable for W to conduct his entire government in secrecy because of his eventual prosecution.

Posted by: feckless | January 10, 2008 02:36 PM

While this seems like a classic example of a Catch-22, there is actually a course that can avoid the worst of possible outcomes.
Given the inevitable cries of cover-up should Rodriguez be exonerated by the Mukasey Justice probe, immunity should be granted by Congress. But only with well crafted provisos:
1) He must give full and completely accurate answers.
2)He must name all elected and appointed political figures that he knows to be involved.
3)That any information that he gives that is found to be false will nullify the immunity.
The alternative is to allow Justice officials who may or may not have ulterior motives granting him immunity. He won't testify without it. And that would create as much ill will as an outright pardon of any and all intelligence agents involved.
We will probably see such a blanket pardon in time, anyway. So we might as well learn the truth now, if we can.
I wouldn't be surprised if just the announcement of such a deal would bring out the pardon pen.

Posted by: DemoChristian | January 10, 2008 03:12 PM

The committee needs to give use immunity and takes his testimony behind closed doors. Once they know what he knows they can determine whether he is the big fish or a low level functionary. The sooner the committee moves on this the sooner we can get to the battle over Executive Privilege because if any WH officials are culpable, this President will invoke that doctrine. Furthermore, if this does get to a criminal case the state secrets doctrine is likely to derail actual prosecution.

Posted by: pasco | January 10, 2008 03:52 PM

This all happened before during Iran-Contra. Ollie North and John Poindexter got their use immunity. Then, they testified that they acted independently--North even bragging about how many documents he shredded. Their convictions by a special prosecutor (Walsh) was overturned on appeal because the prosecutor could not prove beyond doubt that the Congressional testimony had not helped his case.

In summary, the Senate attempted to grandstand, North turned it into a circus that made him a right-wing hero, Reagan's and GW Bush's claim that they knew nothing was strengthened, and the guilty went free.

No deals.

Posted by: Clay | January 10, 2008 04:10 PM

"So what do we want here? Do we want fast answers at the potential expense of justice?"

I always want the legal part to play out, but it ain't gonna happen. The isue is in the both the legal and political arenas, and the legal can't trump the political.

We lose.

Posted by: DC | January 10, 2008 05:16 PM

Current headline on the Post website's News page:

FBI WIRETAP CUT FOR UNPAID BILLS - Phone companies drop surveillance for bureau's failure to pay, including one invoice for $66,000.

Are the TV writers moonlighting at the Post to make some money while they're on strike?

Posted by: DC | January 10, 2008 05:22 PM

Let me get this straight. The liberal Democrats are up in arms over CIA Official Jose Rodriquez Jr. destroying CIA interrogation tapes of the waterboarding of two terrorists, but they didn't make a peep of protest when the New York Times committed treason by publishing our CIA secret black box operation and their Rendition Program. These revelations put an end to our CIA's terrorist tracking program through International Banking channels, exposed our agents and our operatives and put them in great danger, and made it more dangerous for the American people and our brave men and women serving in Iraq. The terrorists now will use different means to achieve their terrorist ends, like smuggling in IED's, laundering money, and recruiting more terrorists that will get our military guys killed.
The fact is that the liberal Democrats now whining for an investigation into the destruction of the CIA tapes aren't one bit interested to get to the bottom of WHO within the CIA leaked the CIA's black box or Rendition Program information to the NY Times or WHO made the decision and committed treason by revealing our CIA secrets on the front pages of the NY Times. They're not interested because the NY Times, like most of the MSM, is controlled by the Democratic Party and the CIA leakers are probably Democrats also.
They're up in arms over Jose Rodriquez Jr.'s destroying CIA tapes ONLY because they want a political issue to use against President Bush and his administration. Our countries interests, like catching the terrorists before they can kill Americans, is secondary to their Democratic Parties interests of scoring political points.
And then they get blusteringly outraged when anyone questions their patriotism and calls them lip--service Americans.
If something walks like a duck, quacks like a duck, and looks like a duck, IT'S A DUCK !!!!!!

Posted by: madhatter | January 13, 2008 10:17 PM

Madhatter: You are blissfully, or kniowlingly, are ignoring the crimes and misdemeanors of the Bushies to criticise American who dare to question the obscene movtiviees of a corrupt and morally bankrupt administration. If you like the muzzle so much, why don't you go to Saudi Arabia the government wants people like you

Posted by: monkeyman | January 14, 2008 09:44 AM

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