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January 16, 2008

Did The Buck Stop With Rodriguez?

The videotapes containing interrogations of al-Qaeda terrorists, including depictions of waterboarding, got destroyed because the man who ordered the action believed he had "implicit support" to do so from the CIA, according to his lawyer. Jose Rodriguez acted on requests from the CIA station chief in Bangkok to resolve the status of the tapes before the chief's retirement. After consultations with CIA lawyers and other officials in the agency, Rodriguez believed he could act to destroy the tapes and all of the evidence they contained:

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. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

Implicit support? That's an interesting term to use when defending someone over a potentially criminal act. Bennett's construction appears to concede that Rodriguez never sought approval for his actions, or at least never got explicit approval for the destruction of the tapes. It makes it sound like Rodriguez made the decision and that the responsibility ends at his desk.

If this is the best that Rodriguez can do, don't expect him to get immunity soon. Congress and the Department of Justice won't grant immunity unless they have a probability of going higher up the food chain at the CIA. This statement essentially concedes that on the question of the destruction of the tapes, at least, no one can go any higher than Rodriguez -- which will certainly disappoint those who wanted the scandal to reach into the Oval Office, or at least Blair House.

However, another question exists. The CIA materially misrepresented the facts when it denied having any recordings of interrogations to the court in the Zacarias Moussaoui case, and potentially to Congress as well when it began looking into waterboarding as an interrogation practice. That is where the obstruction of justice claims rest, and Rodriguez' statement indicates that plenty of people at the CIA knew about those tapes -- including its legal counsel. On that question, the DoJ may want Rodriguez' cooperation, and may have to pay for it with immunity, or at least a plea bargain.


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