The destruction of the CIA torture tapes is still a fairly young scandal as Washington scandals go. It hasn’t even acquired a “gate” suffix. But the Administration is already busily choreographing it, with the dozens of shiny metal parts clicking away in synchronicity, like a finely designed mechanical watch. There is an admirable efficiency to the political process. If only these people were a fraction as good at the work of government as they are at political shenanigans, I keep thinking. The Bush Administration plan is simple: let’s think of this as a movie–Abu Ghraib, The Sequel. Instead of offering up a group of young grunts for the sacrifice, this time it will be a retired senior management figure at the CIA and some of his subordinates. And this sacrifice will, in the White House’s view, divert attention from the real source of both scandals, which is high in the upper reaches of the Executive Branch. Inside the White House, in fact.
But understanding how this will be accomplished requires us to start examining the details of the process that will take us there.
Mukasey’s Probe
On January 2, 2008, Attorney General Mukasey announced that the preliminary examination headed by National Security Division head Ken Wainstein had concluded that a more formal investigation was appropriate. His announcement was immediately greeted by positive acclaim in the news media, including a highly flattering AP story and a New York Times editorial that read “The Right Move on the CIA Tapes.” My own immediate reaction to the Mukasey action was very positive, but then lawyerly caution got the better of me. I decided to look carefully into the details and confer with some of my sources at Justice before making any comment. What I have learned leaves me very suspicious about the arrangements in place.
The Bigotry of Low Expectations
The positive reactions were fueled by a pattern of seriously abusive conduct which has characterized the Bush Justice Department’s generally charade-like internal investigations. There have been bright spots, of course. Department of Justice Inspector General Glenn Fine is a courageous and highly competent professional, and his team have produced impressive products. Patrick Fitzgerald performed brilliantly as a special prosecutor. In fact, I believe that Fine and Fitzgerald come very close to setting the standard for detached professionalism that this sort of work calls for.
But the public should be demanding exactly that sort of professionalism and should accept nothing less. The abysmal experience of the Bush years leaves a lot of people prepared to compromise on integrity issues. That’s extremely unfortunate. Mukasey is clearly getting a lot of mileage from the depressed standards that his predecessors trained Washington to expect.
Let’s start with the positive. John H. Durham is the man tapped to head this probe. He’s a career prosecutor, an assistant U.S. attorney in Connecticut. I’ve spent some time asking about Durham among those who have worked with him and on the other side. I reached out to lawyers in Boston, Hartford and Stamford.
What I heard was very encouraging. He is described as tireless, aggressive, rigorously ethical in his approach and consummately fair. About half of the people I spoke with identified Durham immediately as a Republican, the other half had no idea of his politics (he is a registered Republican). But no one considered him to be deeply engaged in partisan politics by any stretch. He has a very strong track record coming out of a very sensitive probe of Justice Department corruption in Boston. It seems clear that Durham has the right mix to do the job.
The problem here is not the choice of prosecutor. It’s the blinders and harness that Mukasey has put on him. The Valerie Plame investigation shows how this should be done. Patrick Fitzgerald was appointed as special prosecutor and was given free rein to pursue his investigation and bring charges. But Durham is not being given this freedom of action. And the restrictions imposed on him have a very disturbing genesis.
The Meeting
As Michael Mukasey was being prepared to be nominated for the post of attorney general, the White House strongly encouraged him to meet with a group of “movement conservative” lawyers to try to address their “concerns” about his suitability to be the nominee. When the meeting took place, Mukasey found himself being pressed aggressively. They wanted his assurance that there would be no special prosecutors to look into wrongdoing by Team Bush. Several of those who were pleading against the appointment of a special prosecutor had more in mind than just good prosecutorial ethics. They played a role in the U.S. attorney’s scandal and potentially other mischief. If a prosecutor were appointed, they might well find themselves in the crosshairs.
Mukasey hasn’t yet completed his second month in office, but already there’s reason to be concerned about just what came out of this meeting. The scandal surrounding the destruction of CIA blacksite tapes continues to unfold. And at this point, the Bush Administration’s strategy for dodging a bullet couldn’t be clearer. Here are its parameters:
No Special Prosecutor
In the view of the “movement conservative” team dispatched to check out Mukasey, Patrick Fitzgerald was a brush with disaster. Indeed, it could have been much worse. After all, Fitzgerald took down Scooter Libby and the evidence he had could just as easily have been wielded against the Shogun himself, Dick Cheney. The prime concern the “movement conservatives” articulated was that any investigator have blinders and a harness to keep him out of “trouble.” And that meant away from examining the dealings of the “movement conservative” elves, always busily working behind the scenes, and away from the White House. So Mukasey has not opted to appoint a special prosecutor. Instead he has used the recusal process. The U.S. Attorney in Alexandria, Chuck Rosenberg, recused himself and Mukasey appointed an Acting U.S. Attorney.
But in fact, Durham’s latitude is considerably less than that of a U.S. Attorney, since he is empowered only to handle a specific matter. He has been given “blinders” that narrowly restrict the scope of the investigation he can conduct. Following the Mukasey mandate, he’s going to look at a fairly simple issue–whether the destruction of the tapes broke the law. He’s not permitted to look at what’s on the tapes.
Once More: It’s All About Torture
Professor Jonathan Turley of George Washington University hits it just right.
There is a concerted effort in Washington to keep the focus of the investigation away from torture. Both Democrats and Republicans are struggling to do that, as if there is nothing on the tapes.
He won’t be permitted to second-guess the opinion of the Office of Legal Counsel, which tells us that waterboarding, long-time standing and hypothermia are not torture. Of course in the fairytale land (or more accurately, psychotic nightmare) of current OLC jurisprudence, “torture” doesn’t exist–if the president has approved it, it cannot be torture. And most certainly Durham won’t be able to take this scandal where it obviously leads, straight into the White House.
And there are other important questions. As Professor Martin Lederman of Georgetown argues, the real question may be less who destroyed the tapes than who directed that the CIA stop taping?
the greater scandal is not that these tapes were destroyed, but instead that the CIA did not create tapes of all its high-level interrogations. That is to say, the real outrage was the orders from the CIA to stop taping.
No one is talking about this. . . But it is really rather remarkable that the CIA decided not to videotape its investigations of high-level al Qaeda officials. This is an enemy bent on committing horrifying terrorist acts. Our intelligence about that enemy is minimal, and therefore any information we obtain from these interrogations could be of critical importance. (That was, recall, the justification for the “enhanced” techniques in the first place.)
Exactly. If there were such compelling reasons to create these records, what led to the decision to stop, and who took that decision? Spencer Ackerman raises the same question in the Washington Independent here.
But of course we know the answer to the “why” part of the question. If techniques like waterboarding were being used, then the tapes were systematically documenting criminal conduct. No reasonable person viewing them would come away with any different view. They were likely to be turned into a series of exhibits in a criminal prosecution. So it was recognition of the fundamentally criminal nature of the conduct involved that led to the decision to stop creating the records. But that leaves the question as to process and people involved in that decision.
Lack of Independence
The appeal of the “movement conservative” group that met with Mukasey was targeted at the horrifying prospect of an independent prosecutor who would pursue the law without political blinders. Mukasey has met this concern. Fitzgerald was told he would have free rein to pursue things where he needed to pursue them. But Durham has had his wings clipped before his appointment even went into effect. His work is to be reported to and supervised by the Deputy Attorney General. At present, of course, there is no Deputy Attorney General. There is an acting Deputy, Craig Morford, a career prosecutor who has been tied to a series of politically volatile cases and has a remarkably thin job history for so high a position, though plenty in his résumé that would appeal to a Republican theocon (including a degree from a conservative Christian college and church ministry work). If Morford or, if he is confirmed, Mark Filip, is going to do right by this matter, he needs to follow in the footsteps of James Comey, who gave Fitzgerald free rein.
The Official Story
Yesterday, the Bush Administration’s official account of what happened also unfolded a bit further. In the lead-up to the Iraq War, the Administration was extremely careful to place its load in the two most important organs of the national print media: The New York Times and Washington Post. True to this pattern, the first installment of the official story appeared in the Times (and I published my commentary on the first installment in “The Scapegoat”) and on Wednesday the second installment appeared in the Washington Post.
Keep in mind that there is a very heavy-handed lockdown in place inside the intelligence community on sharing information relating to this matter with the media. Laura Rozen has reported on this, and my own sources say that Rozen’s reporting is right on the mark–members of the intelligence community have been warned that anyone speaking to the media will be subject to severe disciplinary action, most likely criminal prosecution. An FBI probe of the statements of John Kiriakou is already underway.
This has been done so that the Administration can spell out its official narrative through the media with a minimum of background noise and contradiction.
Again, the Post presents an account from a number of official sources. Director Michael Hayden, we learn, gave an interview that provided much of the account. So, whereas the corps of the agency is threatened with ruin and destruction if they discuss these matters, Hayden and a select handful of his trusted seniors lay out all the details. Isn’t there something inherently lacking in credibility about this approach?
In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.
The tapes had been sitting in the station chief’s safe, in the U.S. Embassy compound, for nearly three years. Although those involved in the interrogations had pushed for the tapes’ destruction in those years and a secret debate about it had twice reached the White House, CIA officials had not acted on those requests. This time was different.
The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.
Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved.
Notice how perfectly this coincides with the White House’s program. Move the scene away from Washington. Make it a request from way down the line. Insure no involvement at high levels.
And then we come to what I’d call the “payoff” passage–what all the official leaks were designed to secure.
Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved.
Is this statement correct? No. At a minimum, it’s seriously misleading. Remember, Kiriakou told us that each incident and each technique had to be the subject of a request in writing which wound its way to the White House for approval from the National Security Council–with the president’s imprimatur. The White House knew of the existence of the tapes, and currently manages only a vague “failure of recollection” when pressed on the question whether President Bush had actually seen the tapes. Larry Johnson says it’s highly likely that Bush viewed at least part of them. I’m with Larry on that. Then four senior lawyers at the White House were involved with the question: Bellinger, Miers, Addington and Gonzales. And one of them argued strenuously in favor of the destruction of the tapes. The New York Times gave us that account, and the White House confirmed it. I have my hunch as to which of the quartet advocated destruction of torture evidence. I anticipate we’ll learn it was Vice President Dick Cheney’s chief of staff, David Addington, certainly speaking with his boss’s authority. And I’d also bet that his comments were presented in a way calculated to provide plausible White House authority for the destruction of the tapes.
Now let’s ask: why have these essential facts mysteriously disappeared down the rat hole in the Post’s otherwise carefully presented account? A good question. I wish I knew why. Obviously these facts present an impediment to Operation Scapegoat because they create a trail of questions right into the White House.
And then we come to the ultimate scapegoat, who is meticulously prepared for the slaughter. Rodriguez, we are told, is a rogue agent who doesn’t take guidance well.
The destruction of the tapes was not the first occasion in which Rodriguez got in trouble for taking a provocative action to help a colleague. While serving as the CIA’s Latin America division chief in 1996, he appealed to local Dominican Republic authorities to prevent a childhood friend, and CIA contractor, who had been arrested in a drug investigation, from being beaten up, according to a former CIA official familiar with the episode.
Such an intervention was forbidden by CIA rules, and so Rodriguez was stripped of his management post and reprimanded in an inspector general’s report.
So there you have it. Rodriguez was a rogue agent who disobeyed instructions in the past and ignored the guidance provided in this case to leave the tapes alone. That is the essence of the official account. Does anyone who’s tracked this issue consider this to be even marginally plausible? I don’t doubt that the Washington Post has accurately reported the facts that it’s been given, and I would never dismiss a report produced by Walter Pincus, who is the dean of national security reporters and a figure of consummate professionalism. I also expect that these facts will withstand independent inspection. But it’s best to view this as a work still in progress: one more chapter in what will ultimately be a lengthy narrative. And this chapter takes the heading “the official story.” As the case proceeds, other facts need to be tested against this official account.
I doubt severely that this is a complete portrait of what occurred. The official story is a meticulous cherry-picking of the facts to pull out every nugget and detail which serves the ultimate purpose: exculpate the White House and scapegoat Rodriguez. And let’s not forget the fact that this is already the third official account put out for public consumption by the Bush Administration–following the initial account given by General Hayden, and the second account given to the New York Times–at odds with prior accounts on vital points, including the level and nature of authorization given for the destruction.
In Argentina in early eighties, in the wake of the Dirty War, the regime presented la historia oficial–the formal account of what had transpired, which reached even to provide false backgrounds for the children of the Dirty War’s victims who were given up for adoption. Everyone was bound to accept it. And everyone knew it was a lie. We are now witnessing the crafting of the official story of the destruction of the CIA tapes. The scope and meticulousness with which it is being presented are truly impressive. Yes, let’s be impressed with the Machiavellian ingenuity of this process. But the severest skepticism is warranted when it comes to the truth and completeness of the account. Even when the words appear in the hallowed pages of the Washington Post and New York Times. We are watching a grand bamboozlement, and the integrity of our government is at stake.
