On December 7, 2007, The New York Times reported that the CIA "in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about its secret detention program." Documents obtained when the ACLU asked a federal judge to hold the CIA in contempt of court -- for destruction of evidence which that judge had ordered be produced -- subsequently revealed that the agency had actually "destroyed 92 videotapes of terror-suspect interrogations." The videotapes recorded interrogations of detainees who were waterboarded and otherwise tortured. The original NYT article, by Mark Mazzetti, reported that "the decision to destroy the tapes was made by Jose A. Rodriguez Jr., who was the head of the Directorate of Operations, the agency’s clandestine service" (the NYT later reported that some White House officials had participated in the deliberations and even advocated the tapes' destruction).
Destruction of these tapes was so controversial because it seemed so obviously illegal. At the time the destruction order was issued, numerous federal courts -- as well as the 9/11 Commission -- had ordered the U.S. Government to preserve and disclose all evidence relating to interrogations of Al Qaeda and 9/11 suspects. Purposely destroying evidence relevant to legal proceedings is called "obstruction of justice." Destroying evidence which courts and binding tribunals (such as the 9/11 Commission) have ordered to be preserved is called "contempt of court." There are many people who have been harshly punished, including some sitting right now in prison, for committing those crimes in far less flagrant ways than was done here. In fact, so glaring was the lawbreaking that the co-Chairmen of the 9/11 Commission -- the mild-mannered, consummate establishmentarians Lee Hamilton and Thomas Kean -- wrote a New York Times Op-Ed pointedly accusing the CIA of "obstruction" ("Those who knew about those videotapes — and did not tell us about them — obstructed our investigation").
In 2008, Attorney General Michael Mukasey appointed a Special Prosecutor to determine if criminal charges should be filed. When I was writing my last book about the legal immunity bestowed on political elites even for egregious crimes, I actually expected that Rodriguez would be indicted and that his indictment would be an exception to the rule of elite immunity which I was documenting. As I wrote in my book, "even our political class, I thought, couldn't allow lawbreaking this brazen to go entirely unpunished." But I was quite wrong about that.
In November, 2010, the Obama DOJ -- consistent with its steadfast shielding of Bush-era criminals from all forms of accountability -- announced that the investigation would be closed without any charges being filed. Needless to say -- given how subservient federal judges are to the Executive Branch in the post-9/11 era -- the federal judge who had ordered the CIA to preserve and produce any such videotapes, Alvin Hellerstein, refused even to hold the CIA in contempt for deliberately disregarding his own order. Instead, Hellerstein -- who, like so many federal judges, spent his whole career before joining the bench as a partner for decades in a large corporate law firm serving institutional power -- reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA "should lead to greater accountability within the agency and prevent another episode like the videotapes' destruction."
In other words, as I put it in a Guardian Op-Ed about Hellerstein's CIA-protecting decision: the CIA has promised not to do this again, so they shouldn't be punished for the crimes they committed. Aside from how difficult it is, given the agency's history, to make that claim without triggering a global laughing fit, it is also grounded in a principle of leniency rarely applied to ordinary citizens. After all, most criminal defendants caught up in the life-destroying hell of a federal prosecution are quite unlikely to repeat their crimes in the future, yet that fact is no bar to punishing them for the illegal acts they already committed. But the CIA, of course, operates under a different justice system: one in which they are free to deliberately break laws and violate court orders with impunity.
Protected by the DOJ and Judge Hellerstein from any and all accountability for what he did, the CIA official who ordered the videotapes' destruction, Jose Rodriguez, is now enjoying the fruits of his crimes. He just published a new book in which he aggressively defends his decision to destroy those tapes ("The propaganda damage to the image of America would be immense. But the main concern then, and always, was for the safety of my officers . . .I was just getting rid of some ugly visuals that could put the lives of my people at risk"). He also categorically justifies the CIA's use of torture ("I am certain, beyond any doubt, that these techniques ... shielded the people of the United States from harm and led to the capture of killing of Usama bin Ladin") as well as the agency's network of black sites ("Why not bring the detainees to trial?," asks The Washington Post's Dana Priest in a review today of the book; Rodriguez' answer in the book: "because they would get lawyered up, and our job, first and foremost, is to obtain information"). The title of the book: "Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives."
Rodriguez thus joins a long line of Bush officials -- Bush, Cheney, Rumsfeld, Rice, Wolfowitz, et. al -- who not only paid no price for the crimes they committed, but are free to run around boasting of those crimes for profit. That's what happens when the most politically powerful officials are vested with immunity for their illegal acts. Both the criminals and their crimes become normalized. They feel free not only to admit their crimes openly but to justify and glorify them, because they know they will never be held accountable for them. Instead of having to explain himself as a criminal defendant, Rodriguez is instead permitted to wrap his conduct in the banner of heroism as a highly-paid Simon & Schuster author.
This will be one of the most enduring and consequential aspects of the Obama legacy: by working so hard, in so many ways, to shield Bush-era crimes from all forms of accountability, the Democratic President has ensured that they are not viewed as crimes at all, but at worst, run-of-the-mill political controversies. Given all this, why would any government officials tempted to commit these same crimes in the future possibly decide that they should not?
* * * * *
As I wrote about earlier this week, the Obama DOJ is attempting to resist the ACLU's lawsuit to obtain basic information about the CIA's drone program by insisting that it cannot even confirm or deny the existence of the program without damaging national security. It makes this claim even though top-level Obama officials routinely boast in the media about this program. Incredibly, Rodriguez's book -- which was reviewed and cleared for publication by the CIA -- explicitly discusses the CIA's use of drones. So here we have, yet again, the U.S. Government permitting public discussions of what it does when it benefits top officials, while simultaneously shielding its conduct from the rule of law by telling courts that what it does is so secret that it cannot even confirm or deny its existence.