Reidblog [The Reid Report blog]

Bush Lawyers Discussed Fate of C.I.A. Tapes

By MARK MAZZETTI and SCOTT SHANE
WASHINGTON — At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged.

Those who took part, the officials said, included Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq. ...

The new information came to light as a federal judge on Tuesday ordered a hearing into whether the tapes’ destruction violated an order to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantánamo Bay, Cuba. The tapes documented harsh interrogation methods used in 2002 on Abu Zubaydah and Abd al-Rahim al-Nashiri, two Qaeda suspects in C.I.A. custody.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Robert S. Bennett, a lawyer for Mr. Rodriguez, insisted that his client had done nothing wrong and suggested that Mr. Rodriguez had been authorized to order the destruction of the tapes. “He had a green light to destroy them,” Mr. Bennett said.

There are three court orders that may have been violated, but one in particular strikes me as a very serious problem for the CIA. Accordingly, we may well be in the unique situation in which a pending civil lawsuit might flush out some answers, and the federal judiciary might thus embarrass the other branches into actually taking meaningful action. I say "might" because the Bush Administration thinks nothing of stiffing federal court judges who seek information, and they probably figure they can tap-dance for the federal judiciary - along with all the other inquiries -- until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern District of New York, as a result of Freedom of Information Act requests by the American Civil Liberties Union, could well force the Bush Administration's hand. An order holding the CIA in contempt of court might get the Administration's attention.

The ACLU's Lawsuit, and the Order that the CIA Produce Documents

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

The CIA claimed that some of the relevant documents were the subject of an inquiry by the CIA's Office of the Inspector General, so its attorneys requested a stay of the judge's order and an extension of time to comply with the request for other documents. In February 2005, Judge Hellerstein denied the CIA's request for a stay, but he did not enforce the stay immediately when the CIA moved for the judge to reconsider his ruling based on additional evidence from the CIA's Director - as the CIA entered a full-court press to prevent the ACLU from getting anything.

This stalling action had been playing out, when news of the destruction of the tapes became public. Now, in the action before Judge Hellerstein, he ACLU has moved to hold the CIA in contempt of court, based on the Judge's September 15, 2004 ruling. It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the FOIA request and the judge's order.

n June 2005, Kennedy ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren't covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

David Remes, a lawyer who represents Yemeni detainees at Guantanamo Bay, said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed.

"We want more than just the government's assurances. The government has given these assurances in the past and they've proven unreliable," Remes said. "The recent revelation of the CIA tape destruction indicates that the government cannot be trusted to preserve evidence."

Labels: Bush administration, CIA tapes destruction, Torturegate, White House, worst president ever