Destroyed Torture Tapes Inquiry: Once Again, It's All About the Cover Up, Not the Crime

| Wed Jan. 16, 2008 7:46 AM EST

When members of the House Permanent Select Committee on Intelligence gather Wednesday afternoon to take the special unmarked elevator to the secure "crypt" to hear a closed briefing on the destruction of CIA videotapes, they won't be hearing from their star witness. Jose Rodriguez Jr., the former CIA director of operations, who has been identified as having ordered the destruction of two videotapes recording the waterboarding of two terrorism suspects, "remains under subpoeana," says a committee staffer. But the committee has agreed to defer his appearance. "His lawyer has indicated he is not going to answer questions," without immunity, the staffer continued. "The committee reserves the right to call him" at a later date.

"We're pleased that the committee is considering our request for immunity," says Robert S. Bennett, Rodriguez' attorney. "It's only fair in light of the fact that he has not been given access to the documents he needs to defend himself with."

The Washington Post reported on Wednesday that among those documents which might explain Rodriguez' order to destroy the tapes are a late 2005 classified cable from the retiring Bangkok station chief asking if he could destroy the videotapes recorded and stored in Thailand. Perhaps more influential on his decision, the Post reports, in the same time period as the retiring station chief's request, "the CIA had a new director [Porter Goss] and an acting general counsel [John Rizzo], neither of whom sought to block the destruction of the tapes, according to agency officials."

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Appearing at the closed House intelligence committee briefing Wednesday at 2pm will be only one witness: Rizzo, who served as acting general counsel at the time the videotapes were destroyed. Earlier news reports indicate that both Rizzo and Goss claim they expressed opposition to the destruction of the tapes. The Post piece Wednesday would call the strength of that opposition to the tapes' destruction into question.

News reports and his attorney indicate that Rodriguez says he was advised by lawyers in the Directorate of Operations that he had the legal authority to order the destruction of the tapes in 2005. The tapes reportedly record the 2002 interrogation of two terrorism suspects, Abu Zubayda, an al Qaeda suspect captured in Pakistan in March 2002, and Abd al-Rahim al-Nashiri, a suspect in the bombing of the USS Cole.

Members of the 9/11 commission, which had repeatedly asked the CIA to turn over all relevant material for their investigation, have indicated that they believe the CIA may have obstructed justice in destroying the tapes. So too have defense lawyers for other terrorism suspects.

On Tuesday, House Judiciary committee Democrats asked the attorney general to appoint a special counsel in the CIA destroyed tapes case, according to the AP. Attorney general Michael Mukasey had previously appointed a federal prosecutor to investigate the case. Should the House intelligence committee grant Rodriguez immunity from prosecution, it would certainly complicate and potentially imperil the parallel Justice Department criminal inquiry into the tapes' destruction.

Yet, some Washington observers question Congress' commitment to getting to the bottom of the decision to destroy the tapes. They also note that once again, the episode has all the hallmarks of a classic Washington scandal: all the attention is focused not on what's on the tapes -- waterboarding -- but on their destruction.

"There is a concerted effort in Washington to keep the focus of the investigation away from torture," says George Washington University law professor Jonathan Turley. "Both Democrats and Republicans are struggling to do that, as if there is nothing on the tapes."

"The reason is obvious," Turley continued. Congressional intelligence oversight committee members "knew about the torture program. It's the only explanation" for their confirming Mukasey even though he refused to answer the question of whether waterboarding is torture.

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