About Those Missing Tapes ...

I can't be the only person whose first thought, upon hearing that this Administration had destroyed tapes, was Richard Nixon. Other than the analog nature of the lost recording, there are few direct parallels. But the indirect ones -- chain of knowledge, legality, culpability -- are interesting.

For anyone late to this party, in 2005, the CIA destroyed "hundreds of hours of videotapes showing the [2002] interrogations of two operatives of Al Qaeda." Supposedly, the President has "no recollection" of the tapes what-so-ever. Supposedly, the tapes didn't even exist (CIA officials swore under oath). After their existence was outed, supposedly no one in authority at the CIA approved their destruction. Instead, this is (currently) being cast as the act of a rogue underling (a not so underling: Jose A. Rodriguez Jr. is in charge of the CIA’s Directorate of Operations).

Let's examine some of these interesting arguments one-at-a-time.

Brief Congress But Not The White House?
Raise your hand if you believe that the CIA would brief the ranking members of Congress (including Democrats, the party not in power) about these tapes and not ensure the President have a similar briefing? The President says he knew nothing at all until this week; Congressional leaders say that they were briefed about the possibility of destroying the tapes. (And then did nothing, a story for later.) Subsequently, Karen Hughes (Bush's left hand if Karl Rove is his right) admits she knew (but "told CIA officials that she opposed their destruction").

Thus, we are witnessing either incompetence or deception regarding the President's knowledge of the tapes and any discussion of their destruction. Take your pick. Neither is pretty.

Destroy Evidence?
Raise your hand if you believe that destroying evidence after a federal judge specifically requested it is a good/honorable/legal thing to do? Hope those hands are down by your side, because that seems to be what happened here. Scott Horton writes in Harper's:

[M]y sources are telling me that the actual destruction occurred in mid- to late-November 2005. This would be after Judge Brinkema pressed the Justice Department in court over its compliance with production requests from the defense [Abu Zubaydah]. High on the list of open questions was whether the Justice Department had turned over tapes of the interrogation sessions, which had been specifically requested. Brinkema issued an order requiring this. It’s a reasonable inference that the decision to destroy was taken in direct reaction to Judge Brinkema’s direction that the tapes be handed over. Hence it was an act of calculated defiance of a federal court order. This is a serious crime with respect to which a defense is hard to envision.

This is called obstruction of justice.

Like Watergate, destroying the tapes has ripple effects. From Captains Quarters ("the timing stinks") elaborates:

Defense attorneys for [Abu Zubaydah, the first detainee in CIA custody] requested any videotapes of interrogations of al-Qaeda plotters, hopeful that they could use them to show that Moussaoui had no connection to the 9/11 plot. Prosecutors forwarded a denial by the CIA that any such tapes existed. If an appellate court considers that breach serious and relevant, Moussaoui may wind up with a new trial -- and a far more skeptical court and jury... Scooter Libby got jail time for less than this.

Media Pressure
What triggered the public announcement of the destroyed tapes? According to legal blogger Marty Lederman:

When the [NY] Times told the CIA that it was going to run this story, Mike Hayden quickly sent out a letter to the CIA... Hayden's explanation for the destruction was the need to protect the identity of CIA agents. As though the CIA destroys all its documents that contain identifying information about its agents. Unfortunately for Hayden, but not surprisingly, the Times reports that the tapes were destroyed "in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy." Says who? Says several officials.

How much confidence does this assertion (destroy to protect officers) inspire regarding the CIA's ability to keep secrets? Right. Not much.

Staying On Message
The letter (email) that Mike Hayden distributed to the CIA perpetuates the myth that one suspect was a key operative (emphasis added):

CIA's terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa'ida personnel and operations, had been seriously wounded in a firefight... In the President's words, that "Zubaydah had more information that could save innocent lives, but he stopped talking."

However, as Dan Froomkin and Kevin Drum reports, Zubaydah was a mentally ill. Dan Coleman, then the FBI's top al-Qaeda analyst: "This guy is insane, certifiable, split personality."

Under torture, Zubaydah told wild tales. But to President Bush -- both then and now, it seems -- Zubaydah was an extremely important catch in the Bush War on Terror.

If Zubaydah is indeed the "minor functionary" described in news reports, this is yet another echo of the 1970s. (Remember, Watergate was a botched burglary.)

Widespread Criticism
There are voices right and left that are critical of behavior of the Administration. (Many don't say it like that, but the CIA is an executive agency that reports to the President. It's part of the Administration.)

For example, Andrew Sullivan calls the United States a "banana republic" because "[we now] live in a country where the government can detain indefinitely, torture in secret, and then secretly destroy the tapes of torture sessions to protect its own staff." He also reminds us that these aren't the first missing videos. The videotape of Jose Padilla's final interrogation also went missing:

[Y]ou have two alternatives: a) the Pentagon is so disorganized and incompetent it can lose a critical piece of evidence in its most high-profile case or b) we have a government run by war-criminals covering their tracks.

And Glenn Greenwald provides more examples of missing evidence.

Trying to figure out who's who in this scenario reminds me of being tasked with delivering an extemporaneous speech in early 1973: my topic, "who is responsible for Watergate?" Horton gives us his his list of the men in position to make this call to destroy evidence:

Short answer: Porter Goss, John Rizzo, Cofer Black, Hank Crumpton all either knew and approved (or winked), or they weren’t discharging their duties. That’s in addition to the White House where you can count on it that the intelligence (manipulation)-obsessed Vice President, Dick Cheney, knew about all of this.

TPM Muckraker also provides a list (emphasis added):

Of course, Hayden just inherited this whirlwind. His predecessors, George Tenet and Porter Goss, sowed it. And to a greater degree, it's the fault of George W. Bush, Dick Cheney, Alberto Gonzales, David Addington, John Yoo and John Rizzo, who created a blatantly illegal interrogation program for the CIA to implement... But Tenet must have known that what's on those tapes is evidence of criminal activity. That's a much more plausible explanation for why he stopped taping interrogations. And it's also probably why Rodriguez, with Goss' tacit or explicit consent, destroyed them. If Michael Mukasey is the same man of integrity he was before he became attorney general, he'd call that criminal conspiracy or deliberate obstruction of justice.

When are we (citizens) going to demand that this White House adhere to the law, to stop rationalizing unethical (and illegal) behavior because of a "war on terror"? And when will this Democratic Congress carry out its Constitutional role of balancing the power of the White House?