No Comment — May 1, 2012, 4:50 pm

Jose Rodriguez, Poster Boy

Why did Jose Rodriguez, the former head of the CIA’s clandestine service, destroy ninety-two tapes of interrogation sessions in which terrorism suspects were subjected to waterboarding and other torture techniques? On Sunday, Lesley Stahl put the question to him on 60 Minutes, and he provided an answer:

rodriguez: To protect the people who worked for me and who were at those black sites and whose faces were shown on the tape.
stahl: Protect them from what?
rodriguez: Protect them from Al Qaeda ever getting their hands on these tapes and using them to go after them and their families.

Rodriguez’s claims don’t stand up. Tapes are released with some regularity by the government, and when they are, the identities of any Americans shown in them are almost always obscured—in fact, U.S. law would generally require that this be so. So his first concern hardly makes sense. His second, that the interrogators would become Al Qaeda targets, is similarly a stretch, not only because their identities would not be disclosed, but because of the clear success of the U.S. campaign against Al Qaeda. The terrorist organization has been decimated; it is now struggling from the margins against extinction. And even if it were in a position to strike, low- or mid-level CIA interrogators would hardly be high on its list of targets.

So why did Rodriguez really send those ninety-two tapes through an industrial-strength shredder? We know that they contained information sought under court order for use in civil and criminal litigations. Their release would probably have resolved questions about whether certain prisoners had been tortured, and about the circumstances under which the prisoners made certain statements. Disclosure would also have resolved questions about which techniques the CIA used and how they were applied. These are hardly abstract concerns—even today, former attorney general Michael Mukasey regularly explains to incredulous audiences that when America waterboards, it is entirely different than the waterboarding of the Nazis, the Khmer Rouge, and the Spanish Inquisition. Such claims might not be so easy to repeat if we could actually witness what the United States had done. Clearly Rodriguez didn’t want these details to come out.

Rodriguez told 60 Minutes that he thought destroying the tapes was legal. We can dismiss that possibility, too. We only have to think back to the Enron–Arthur Andersen affair of 2001 to 2003 to know how the American criminal-justice system usually deals with persons who consciously destroy evidence sought in pending cases and investigations: criminal convictions, followed, in Enron’s case, by prosecutions and the closure of a century-old global firm with 85,000 employees. These events were still fresh in 2004 and 2005, when Rodriguez was fretting over the destruction of the tapes. He would plainly have understood that he could be prosecuted and sent to jail for destroying them.

Indeed, why has Rodriguez not been charged and put on trial? That’s a question many are asking as he takes to the airwaves to push the idea that torture works. The only satisfactory answer lies in the doctrine of in pari delictoIn pari delicto applies when both sides of a lawsuit have been involved in the same wrongdoing.—the Justice Department is itself so deeply enmeshed in Rodriguez’s crimes that it could hardly prosecute the case. But if this doctrine explains the DOJ’s failure to prosecute, it also suggests that someone else should be bringing the charges.

Former FBI agent Ali Soufan, receiving the Ridenhour Prize last Wednesday for his book The Black Banners, took direct aim at Rodriguez in his acceptance speech. The tapes were destroyed, he said, because they provided “evidence of [the CIA’s] unprofessionalism, and incompetence.” By destroying the tapes, Rodriguez gave himself room to fictionalize what happened during those interrogations sessions. He seems now to be using this license liberally—and he’s being challenged by those familiar with the CIA’s classified records. Dianne Feinstein, the chair of the Senate Select Committee on Intelligence, which is completing a three-year study of the efficacy of the CIA techniques, just issued a press release questioning Rodriguez’s truthfulness and suggesting that he was claiming credit for the accomplishments of others. The Committee’s report, when it is issued, will likely furnish much more detail on the techniques the CIA used and what these techniques produced. From the descriptions we’ve heard so far, it appears as though the report will sharply contradict Rodriguez.

The ninety-two tapes contained compelling evidence of criminality. They presented a dire threat to Rodriguez and those of his masters who approved the use of torture. His motivations in shredding them therefore seem clear enough: he was afraid of criminal prosecution. And he still should be.

There is no immediate threat that charges will be brought against Rodriguez and his bosses—not under Barack Obama and Eric Holder. But Rodriguez has plenty of reason to be concerned that such charges will be pressed against him outside of the United States, and eventually here as well. Rodriguez is a thirty-year veteran of the CIA who spent virtually his entire career in Latin America, serving in Mexico City, Buenos Aires, and other locations. He happily embraces the dark side; indeed, Latin America was home to some of the blackest of CIA black ops, including assassinations and operational support for regimes that routinely used torture. But he would also have observed what happened to many of the CIA’s allies who turned to torture—to generals and admirals who fought the “dirty war” in Argentina and Uruguay, to Pinochet loyalists in Chile, and to Alberto Fujimori in Peru. Each of these regimes left office armored with amnesties and immunities, with official decisions to decline prosecution, and, significantly, with strong public support for the use of torture as a necessary evil in the battle against terrorists. But in the past few years, former heads of state and leading figures in the intelligence communities of each of these countries have been charged, tried, and convicted of crimes that include torture and conspiring to torture.

What happened? Across more than two decades, public opinion steadily turned against those who had used torture. This process was driven by disclosures of photographs and tapes of heinous acts, by the meticulous work of forensic pathologists who gave the victims a voice, by survivors who forcefully recounted their experiences, by journalists who published exposés, and by lawyers who pressed for information to be revealed and who painstakingly assembled facts for lawsuits.

Jose Rodriguez watched all of this happen. He would certainly appreciate the power of these historical precedents and the likelihood that the ninety-two tapes, if released, would come back to haunt him, and quite possibly send him to jail. That, I believe, is why he destroyed them.

During the American campaign against Al Qaeda, FBI agents working with the CIA on the interrogation of a few key suspects began to refer to CIA torture technicians as “the poster boys,” because they expected that the torturers would soon be featured on wanted posters around the world. Jose Rodriguez has earned his place as one of the boys.

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