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Leviticus chapter 16 describes a practice among the ancient Jews in which, in connection with the observation of the Day of Atonement, Yom Kippur, a goat is driven off. In the English words of the King James Bible, verse 22 reads:
And the Goat shall bear upon him all their iniquities unto a Land not inhabited; and he shall let go the Goat into the Wilderness.
The Hebrew word is azazel (?????) and a century earlier William Tyndale had rendered this as “scapegoat” in his Bible translation. But indeed in the world there are few societies that do not know the practice, ritual or otherwise, of scapegoating. It reflects a loading of sins or failings upon one person who is sacrificed up in atonement for the wrongdoings of others. In the political context, of course, it’s rarely the case that the scapegoat is utterly blameless. The practice usually entails identifying a junior person upon whom the sins of failings of more senior persons can be loaded, to enable them to avoid a demand for public accountability.
As the story concerning the CIA’s decision to destroy vital evidence of its program of detainee abuse unfolds, the Bush Administration’s posture on the matter is shifting decisively. This is called “damage control.” The Administration’s initial posture was to have CIA Director Hayden put the best face on the situation and argue that everything that was done was perfectly legal and correct.
So now we come to phase two: the fall-back position. In phase two, we learn that the president and other senior figures in the Administration know nothing about it. Instead, this was all a rogue operation by a second tier leadership figure at the CIA. And indeed, by midday yesterday, White House off-the-record explainers were extremely busy pointing fingers at one man, the designated scapegoat. The New York Times has the story:
White House and Justice Department officials, along with senior members of Congress, advised the Central Intelligence Agency in 2003 against a plan to destroy hundreds of hours of videotapes showing the interrogations of two operatives of Al Qaeda, government officials said Friday. The chief of the agency’s clandestine service nevertheless ordered their destruction in November 2005, taking the step without notifying even the C.I.A.’s own top lawyer, John A. Rizzo, who was angry at the decision, the officials said. . .
Top C.I.A. officials had decided in 2003 to preserve the tapes in response to warnings from White House lawyers and lawmakers that destroying the tapes would be unwise, in part because it could carry legal risks, the government officials said.
But the government officials said that Jose A. Rodriguez Jr., then the chief of the agency’s clandestine service, the Directorate of Operations, had reversed that decision in November 2005, at a time when Congress and the courts were inquiring deeply into the C.I.A.’s interrogation and detention program. Mr. Rodriguez could not be reached Friday for comment.
So the sacrificial beast now has a name: it is Jose A. Rodriguez Jr., the head of the CIA’s Directorate of Operations. The Bush Administration has always been a government with a completely unpredictable past. But note how crudely this historical transformation is being spun.
Yesterday we are told, in highly implausible statements coming from General Hayden, that the CIA had acted completely according to Hoyle. The issue had been considered, reviewed and cleared. Twenty-four hours later, there is a radical shift of course. Now we learn that the White House didn’t know about the decision and certainly wouldn’t have approved it. Here’s Dana Perino at the White House giving the new line, torn from an episode of “Hogan’s Heroes”: Bush knew nothing.
And the official posture—“knew nothing about it”—spreads very quickly, down as far as people can plausibly assert it. Even CIA acting General Counsel Joe Rizzo (a known torture-advocate, whose nomination to be general counsel got a thumbs down from the Senate for that reason) asserts he knew nothing of the decision and would never have approved. Only yesterday, Rizzo’s approval was being touted as support for the destruction. Rizzo is a figure of amazing dexterity, even for a Bush Administration lawyer involved with the torture program.
What a difference a day makes. Why the dramatic shift? There are several reasons:
• Criminality. As we noted immediately in reporting the case, the destruction of the tapes was a clear-cut criminal act, namely obstruction of justice. I’m confident that any lawyer who properly earned a law license and who was asked about this issued an immediate warning siren. Indeed, as facts developed yesterday, the proximity of the decision to destroy the tapes and the demands of U.S. District Court Judge Leonie Brinkema that any tapes be turned over grew painfully apparent to everyone. My sources are telling me that the actual destruction occurred in mid- to late-November 2005. This would be after Judge Brinkema pressed the Justice Department in court over its compliance with production requests from the defense. High on the list of open questions was whether the Justice Department had turned over tapes of the interrogation sessions, which had been specifically requested. Brinkema issued an order requiring this. It’s a reasonable inference that the decision to destroy was taken in direct reaction to Judge Brinkema’s direction that the tapes be handed over. Hence it was an act of calculated defiance of a federal court order. This is a serious crime with respect to which a defense is hard to envision. And every actor who was complicit in the decision would face potential jail time.
• Spoliation. Closely related, of course, is the doctrine of spoliation, under which the destruction of evidence—in addition to criminal and civil sanctions—gives the aggrieved party (here the defense in the case before Brinkema) the right to argue that the evidence was destroyed for a reason, namely that it would have have been material, probative evidence damaging to the party who destroyed it. Thus the act of destroying the evidence may very likely lead to a reversal of the outcome in the Moussaoui case, requiring a new trial at millions of dollars of additional expense. All these facts also put a very dark cloud over the conduct of the prosecution in that case. During the proceedings, Judge Brinkema herself—a notably conservative Republican appointee–repeatedly expressed frustration and skepticism about their conduct. And it turns out her skepticism was well founded. They purport to have acted on advice of CIA lawyers that there were no tapes. The current disclosures leave the candor of these representations subject to well-warranted suspicion. In fact, an independent probe of the conduct of the DOJ attorneys handling the Moussaoui case is now imperative.
• Plausibility. Let’s cut to the bone. When the Bush Administration trots out arguments and finds that even Michelle Malkin (“it is bad”) and Ed Morrissey (“frankly, the timing stinks”) have trouble swallowing them, it’s in serious trouble. And that was the case here. The claims that the policy was adopted for legitimate reasons didn’t pass a smell test; even “the base” wasn’t buying them.
All of which meant: time for a new strategy. So what works better that a good scapegoating?
But is the scapegoating strategy even marginally plausible? No, it isn’t. First, we have the opening volley—everything was disclosed and approved in advance. Even the oversight committees were briefed on this. Everything was kosher. So now we’re being told that they briefed Rockefeller and Harman, but not President Bush. Does anybody believe that for even a second? No, it’s not plausible. And all this relates to an issue that has involved the White House like no other issue since the Bush Administration began. The highly coercive interrogation program—the “Program”—was Dick Cheney’s baby. He lobbied the CIA to adopt it and turned to extraordinary measures to overcome their initial reluctance. (This is how we got the torture memoranda at Justice, after all). And let’s keep in mind that this is a White House in love with secrecy and the destruction of internal documents which might prove compromising. (Think: Dick Cheney and his visitors’ logs; think: Karl Rove’s missing emails, now put at 10,000,000 and counting).
But let’s go the next layer down, to CIA. Could a director of ops authorize the destruction of evidence wanted in a federal criminal case, in the face of a court order for their production all by his lonesome with no consultation and approval from above? We have the answer in the initial Hayden memo: these steps were done in accordance with the law and agency procedure, he says. So the answer to that question is that it certainly wasn’t just Rodriguez. Larry Johnson, a career intelligence officer, gives us the view from inside:
Jose Rodriguez will not be the only one walking the public plank on this issue. In fact, he did not undertake this mission without the permission or direction from higher ups. And when you are the Deputy Director of Operations, there are not a lot of people above you. Prominent names include George Tenet, John McLaughlin, Porter Goss, and John Rizzo. Darrel Plant has an insightful piece giving some important background on Rizzo, the acting CIA General Counsel.
Other intelligence officers likely to be asked tough questions include Cofer Black (now a senior official with Blackwater) and Ambassador Henry “Hank” Crumpton, who was Cofer’s deputy and subsequently served as the Coordinator for Counter Terrorism at State Department.
Short answer: Porter Goss, John Rizzo, Cofer Black, Hank Crumpton all either knew and approved (or winked), or they weren’t discharging their duties. That’s in addition to the White House where you can count on it that the intelligence (manipulation)-obsessed Vice President, Dick Cheney, knew about all of this.
So that brings us to the parallel argument advanced by the CIA yesterday: all these tapes don’t matter—they wouldn’t really show anything. The problem with this, as lawyers know, is that’s not the way the world works, and neither is it the way that courtroom rules of decision work. You destroy the evidence, and the world and the court will believe that it was vitally important and probably would have sunk your case. That’s the presumption that the Rule of Law requires. But this is a highly charged, deeply political matter, and there is much more at stake than the freedom or life of a convicted terrorist—our nation’s reputation before the world, for instance. And on this point, Kevin Drum’s column today nails it perfectly:
So what would investigators have seen if they’d had access to the tapes? One of the captured prisoners was an al-Qaeda operative named Abu Zubaydah, and it turns out we have a pretty good idea of what the tape would have shown. First, … from James Risen’s State of War:
… Tenet caved to Bush entirely on the torture of al-Qaeda detainees. After the 2002 capture of Abu Zubaydah, a bin Laden deputy, failed to yield much information due to his drowsiness from medical treatment, Bush allegedly told Tenet, “Who authorized putting him on pain medication?” Not only did Tenet get the message — brutality while questioning an enemy prisoner was no problem — but Tenet also never sought explicit White House approval for permissible interrogation techniques, contributing to what Risen speculates is an effort by senior officials “to insulate Bush and give him deniability” on torture.
And here is Barton Gellman’s gloss of Ron Suskind’s The One Percent Doctrine:
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be….Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda’s go-to guy for minor logistics.
[Other unrelated bungling described, all of which is worth clicking the link to read.]
Which brings us back to the unbalanced Abu Zubaydah. “I said he was important,” Bush reportedly told Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied. Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?”
Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, “thousands of uniformed men and women raced in a panic to each…target.” And so, Suskind writes, “the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”
So here’s what the tapes would have shown: not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical “confessions” under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and and law enforcement personnel.
Nice trifecta there. And just think: there’s an entire political party in this country that still thinks this is OK.
Hmmm. Is he talking about the Republicans? Okay, but let’s remember that in addition to the army of prolonged adolescent chickenhawks who form the core of the modern G.O.P., there are a solid number of perfectly decent Republicans who don’t buy into this, namely all of the Republicans who still remember that it’s Abraham Lincoln’s party. I think of John McCain, Chuck Hagel and Ron Paul, for instance. And this week, even Mike Huckabee seems to be coming around on the point.
And I’ll add something else these tapes might have shown. Katherine Eban reported in a Vanity Fair article last summer, that the interrogation of Zubaydah deeply involved two psychologists, namely James Mitchell and Bruce Jessun. How does the American Psychological Association describe the work of the psychologists who facilitate these interrogations? They keep “interrogations, safe, legal, ethical, and effective.” My suspicion is that these tapes would have provided graphic evidence of the Orwellian sense in which these words must be read. So no doubt our friends at the APA are also delighted to know that the evidence has gone down a rathole.
The CIA tape destruction presents another test for the Rule of Law in America. It’s a test for Congressional oversight, and it’s a test for the Department of Justice. Michael Mukasey will have to decide whether he considers himself to be the nation’s principal law enforcement officer, or a loyal retainer of George W. Bush. He’s only a few days on the job and the path has clearly divided.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Hours per day that a death-row inmate in China wears hand and ankle restraints:
A multidisciplinary team detected cardiac arrhythmia in the works of Beethoven.
There was a run on cases of 5.56mm M855 green-tip rifle bullets, after the White House moved to ban their manufacture and sale because they can pierce police armor.
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