Why Jose Rodriquez Should Be In Prison, Not On A Book Tour

As Marcy noted, Adam Goldman and Matt Apuzzo of the AP have gotten their hands on an early copy of Jose Rodriquez’s new screed book, “Hard Measures”. The one substantive point of interest in their report involves the destruction of the infamous “torture tapes”. What they relate Rodriquez saying in his book is not earth shattering nor particularly new in light of all the reporting of the subject over the years, but it is still pretty pretty arrogant and ugly to the rule of law:

The tapes, filmed in a secret CIA prison in Thailand, showed the waterboarding of terrorists Abu Zubaydah and Abd al-Nashiri.

Especially after the Abu Ghraib prison abuse scandal, Rodriguez writes, if the CIA’s videos were to leak out, officers worldwide would be in danger.

“I wasn’t going to sit around another three years waiting for people to get up the courage,” to do what CIA lawyers said he had the authority to do himself, Rodriguez writes. He describes sending the order in November 2005 as “just getting rid of some ugly visuals.”

As you may recall, specially assigned DOJ prosecutor John Durham let the statute of limitations run out on prosecuting Jose Rodriquez, and others directly involved, including four Bush/Cheney White House attorneys (David Addington, Alberto Gonzales, John Bellinger and Harriet Miers) involved in the torture tapes destruction, as well as two CIA junior attorneys, on or about November 9, 2010. There was really never any doubt about what Rodriquez’s motivation was in light of the fact he destroyed the tapes of Abu Zubaydah and al-Nashiri within a week of Dana Priest’s blockbuster article in the Washington Post on the US “black site” secret prisons.

But, just as there was no doubt, then or now, as to the motivation of Rodriquez and/or the others, there was similarly never any doubt about the legitimate basis for criminal prosecution. The basic government excuse was they could not find any proceeding in which the torture tapes were material to so as to be required to have been preserved. For one thing, Judge Alvin Hellerstein determined the tapes were indeed material to the ACLU FOIA suit and within the purview of their evidentiary hold (even though he refused to hold CIA officials in contempt under the dubious theory they may not have had notice).

More important, however, was the immutable and unmistakable fact that the torture tapes were of specific individuals, al-Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri, who, at the time of destruction of the tapes, were in detention awaiting trial, whether it be in an Article III court or a military commission. With al-Nashiri there was the added fact that he was a named co-conspirator (though unindicted) in the open indictment of his Cole bombing mates al-Badawi and al-Quso. It was, and is, patently duplicitous to claim there were no possible cases the tapes had pertinent evidentiary value to. And the DOJ knew it. Because I told them in a letter prior to the expiration of the statute of limitations:

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too.

In short, the tapes were material evidence in multiple ways, in multiple forums, and the crime of obstruction of justice by destruction of evidence is patently obvious. If you have any questions about the willingness of the DOJ to charge obstruction of justice for evidence destruction, look no further than yesterday’s charging affidavit for destruction of text messages in the BP Gulf Oil Spill case. The DOJ knows how to charge the kind of crimes Jose Rodriquez and the others committed when they want to. Thing is, the DOJ of Barack Obama and Eric Holder did NOT want to charge any crime, even patently obvious obstruction, that impinged on the Bush/Cheney illegal torture program.

Marcy made a very salient point in that “the problem with the torture tapes is not what they showed, but what they didn’t show“. That may well be true, but it does not detract from the fact the tapes were directly material evidence to Abu Zubaydah and al-Nashiri, in fact it only confirms the malicious intent the government had with respect to covering up their torture – the blank spots and erasures are powerful evidence. In and of themselves, the blank spots, erasures and inoperability of some of the tapes, in conjunction with the corresponding torture session logs, demonstrate malicious intent to cover up torture.3 And let’s not mince words, whatever was still on the tapes was so powerful that it shocked the conscience of CIA Inspector General John Helgerson and displayed, at a minimum, waterboarding. So, there was critical evidence of many varieties possessed in and on the tapes Jose Rodriquez et. al wantonly destroyed.

So, why is Jose Rodriquez out running free, pimping his book and slamming President Obama, instead of in a federal prison? Well, it most certainly is not because he could not have been charged and convicted, it is because the Administration of Barack Obama refused to do so. Jose Rodriquez is one wired in spooky guy, and the CIA, well there is no telling what they might do to protect themselves. Maybe Dianne Feinstein and the Senate Intel Committee could investigate what levers Rodriquez and the Company pushed to obtain this result before the reach they looming completion of their “investigation” of the Bush/Cheney interrogation program.

[UPDATE] And Dana Priest has just weighed in this morning with her take on Rodriquez and his book. The entire article at the Washington Post is worth a read, but the pertinent part for this post is:

In late April 2004, another event forced his hand, he writes. Photos of the abuse of prisoners by Army soldiers at the Abu Ghraib prison in Iraq ignited the Arab world and risked being confused with the CIA’s program, which was run very differently.

“We knew that if the photos of CIA officers conducting authorized EIT [enhanced interrogation techniques] ever got out, the difference between a legal, authorized, necessary, and safe program and the mindless actions of some MPs [military police] would be buried by the impact of the images.

“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.”

Readers may disagree with much of what Rodriguez writes and with the importance of some of the facts he omits from his book, but the above sentence speaks volumes about why this book is important. In this case, a loyal civil servant — and the decision-makers above him who blessed these programs — were not thinking about the larger, longer-lasting damage to the core values of the United States that disclosure of these secrets might cause. They were thinking about the near term. About efficiency. About the safety of friends and colleagues. In their minds, they were thinking, too, about the safety of the country.

And after some back-and-forth with agency lawyers for what seemed to him the umpteenth time, he writes, Rodriguez scrutinized a cable to the field drafted by his chief of staff, ordering that the tapes be shredded in an industrial-strength machine. The tapes had already been reviewed, and copious written notes on their content had been taken.

“I was not depriving anyone of information about what was done or what was said,” he writes. “I was just getting rid of some ugly visuals that could put the lives of my people at risk.

“I took a deep breath of weary satisfaction and hit Send.”

Priest is exactly right about “the larger, longer-lasting damage to the core values of the United States”. One of those values is fairness and the rule of law. Those values demand that the rights of the accused rate just as much or more moment than the self serving cover you rear desires of the accusers and abusers.

(Graphic by the one and only Darkblack)

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
38 replies
  1. Clark Hilldale says:

    Jose Rodriquez must have forgotten his Law of Evidence course from law school. He has been out of school a while.

  2. jo6pac says:

    Yep, another Iran/Contra alumnus receives the final pay out of a free pass. Is he the same rodriguez from the Vietnam Phoenix program anyone?

  3. Tom in AZ says:

    I’m torn about this. All you and Marcy, and Priest have said of Rodriguez is true. And he may be even more than what we know. However, of all the players so far, the Bush and Obama political and at justice, I think what he says is true about the people under him. The rest of the people were worried about their own asses, or people above them. If sacrificing the people at the end of the spear would protect those who directed the spear be used, then his people would be in jail. And Bush et al would still be out writing their stories.

    I think Jose Rodriguez can live with himself. I think if they had prosecuted him he would still be fine with the outcome. Don’t think that could be said about ANY of the other players. He made the right call for those under his command. And he didn’t run and hide from what he did, like Cheney re Libby.

    We as a country lost a lot because of this descent into the dark side. All the anger at Rodriguez is understandable, but I think misplaced. His people would be the ones going down, and the rest allowed to slink away, or burrow in, until the next time that bunch comes to power.

  4. Frank33 says:

    I totally agree. Torturers should not be profiting from torture. And of course the torture was used to obtain false confessions for their phony Oil wars.

  5. bmaz says:

    @Tom in AZ: Yeah, I dunno. When you are committing crimes against humanity, war crimes, and a host of other crimes, I do not think you are entitled to all that much “protection” regardless of your place on the command food chain. And, to be clear, those lower people you are concerned with HAD viable defenses; what Rodriquez did covered up his own sorry ass and those above him.

  6. seedeevee says:

    “Maybe Dianne Feinstein and the Senate Intel Committee could investigate . . .”

    HAHAHAHAHhahahahahahahah, ahh that’s a good one.

  7. Tom in AZ says:

    @bmaz: OK, I’ll go with those who know more about it. And as I said, Rodriguez did commit the crimes we’re talking about. His underlings having a viable defense and getting to use it when everyone above has sold you out and is being shielded, that I am not so sure about. They could have walked away from it all, yes. Should Rodriguez be allowed to profit, no. But when those at the top face no consequences, well, here we are…at this sorry stage of our decline. Rule of law, or rule of man.

  8. BK says:

    Though the statute of limitations for the specific crime may have lapsed, there is no statute of limitation for murder. The policies approved by these people, including Rodriguez,killed detainees and others. The policies’ (i.e., the conspiracy)natural and probable consequences were death. Thus, I believe these people (including Bush, et. al.) can still be prosecuted in the United States for murder. Except the present group in power are after the fact accomplices.

  9. bmaz says:

    @Tom in AZ: Heh, yes I was being humorous there, or trying to anyway.

    As to the “those at the top” argument, that is kind of the point. You get to the top by leveraging those below. That is what this did. The mantra has always been “it is too hard to crack open the door on torture”. Well here was a door open and big enough to drive a Mack truck through.

    But to me, as a sometimes defense attorney, it also is about much more than these big meta arguments. This was a DIRECT denial and destruction of materially mitigating evidence to two specific human individuals. It is not just about the greater arguments everybody wants to focus on, it is about two men as well.

  10. Story of O says:

    I think a reasonable person without a law degree would make a better judge than Judge Alvin Hellerstein — if justice is the desired result. Is there any question about that?

  11. Gitcheegumee says:

    Bmaz, you have done a history of exceptional threads; but, imho, this is one of your best -specifically for the terseness and clarity with which you delineate the issue at hand. KUDOS!

    And,as IANAL, could the far more Olympic brows among us enlighten this mere mortal as to WHY these illicit torture sessions were videotaped to begin with-for what purpose?…Or…. should I say, for whose pleasure?

  12. JTMinIA says:

    Does the rule about not profiting from a crime (by, e.g., writing a book) only apply if you have been convicted? I assume so, as OJ wrote a book.

  13. Gitcheegumee says:

    Somewhat tangential,but salient as to “running out the clock”, anyone commented on Pinochet’s will finally being made public,yet ?*

    (Oh,I AM curious as to just which financial institutions were the abbatoirs of his booty.)

    * Chile: Pinochet’s Will to Be Opened

    Source: Associated Press

    Chile: Pinochet’s Will to Be Opened
    By THE ASSOCIATED PRESS
    Published: April 25, 2012

    Chilean officials will open the last will and testament of Gen. Augusto Pinochet on Wednesday, a crucial step in determining just how large his fortune was. A study ordered by Chile’s Supreme Court determined years ago that the general accumulated $21 million before his death in 2006 at age 91 and said only $3 million of that was justified by his military salary. He died under house arrest, facing charges of illegal enrichment and human rights violations.

    Read more: http://www.nytimes.com/2012/04/25/world/americas/chile-pinochets-will-to-be-opened.html

  14. Gitcheegumee says:

    If I might beg a little indulgence here,regarding the intoductory paragraphs here referring to torture in Thailand…I always think of Viktor Bout when I see Thailand mentioned.

    Curiously enough, Viktor Bout,whose airlines reportedly flew CIA rendition flights to black sites -for years,if memory serves correctly -was just VERY recently sentenced to 25 years in federal prison…(after being extradited from Thailand to the US a coupla years ago.)

    Curiously enough, one of Bout’s other clients, Charles Taylor of Liberia, is looking at some potentially serious hard time thanks to a lengthy Hague tribunal..

    Timing IS everything…now,isn’t it?

  15. rugger9 says:

    The comment as to why these tapes were made in the first place is something that hasn’t been looked into enough. Keep in mind that in the rule of law nation we used to be, they couldn’t be used as evidence of guilt, because any “confessions” would be exposed as clearly coerced, and case law has wiped out ones where the evidence of the abuse had been far more circumstantial. So, there is no value there for a prosecution unless the wheels were already turning toward the kangaroo court allowing secret and torture evidence. Or maybe Darth needed something to get his tough-guy jollies, sick as he still is.

    On the other hand, the tapes would prove that very bad things happened to certain individuals [do we have a list of who was there and later turned up dead?] and while there is no statute of limitations for murder, assault may be another thing, and unless the deaths were recorded [maybe that’s why the editing?] it would be hard to prove the connection through the inevitable roadblocks thrown up by the CIA/DOJ.

    However, Rodriquez is not helping himself here, as there is no statute of limitations on torture crimes under St Ronnie’s treaty, and anyone can prosecute. As a lower level fish, he would be a prime target for someone trying to leverage bigger fish. All you have to see is the government changes sweeping Europe over the austerity programs, and the anger in the southern tier countries, and you can see the possibility that someone might round up someone like JR for political grandstanding purposes [aided mightily by our continuing arrogance in the world], and make it stick for real.

  16. Bay State Librul says:

    OT

    Re: Clemens trial…. what is the difference between “guilt by association” and circumstantial evidence?

    Can’t question Petite on MacNamee, so the jury will have to put 2 and 2
    together from the entire scenario?

  17. Gitcheegumee says:

    @rugger9:

    Rugger, I have asked this question in the past, on more than one occasion.Why were they made to begin with? WHO wants to document illegal war crimes?

    Leverage against the countries the torture was conducted in?

    Or leverage BY the countries the torture was conducted in?

  18. Gitcheegumee says:

    @Jeff Kaye:

    Jeff, I have asked you in the past if any Blackwater contractors were implicated in any of the torture sessions. If I recall correctly,your response at the time,then,was that there was no evidence to substantiate this.

    Anything changed in the past coupla years?

  19. Jeff Kaye says:

    @Gitcheegumee: I haven’t specifically been looking for that, so no, I don’t have any new info. The identities of the torturers have been, for the most part, something quite classified.

    The only person who could be called associated with Blackwater that had been involved with the CIA black sites that I know of specifically was Robert Richer, the former No. 2 ranking official in the CIA’s clandestine service, who sent CIA case officer Glenn Carle to a black site to interrogate “CAPTUS” (actually Haji Pacha Wazir, held in a black site in Morroco), according to Carle’s book. (See this article.)

    And of course there was Cofer Black, who as this Washington Post article notes, was “the former head of counterterrorism at CIA known for his leading role in many of the agency’s more controversial programs, including the rendition and interrogation of al-Qaeda suspects and the detention of some of them in secret prisons overseas,” and in 2005 became chairman of Blackwater (both Richer and Black made the move to Blackwater in 2005, though Black left CIA in late 2002 to coordinate counterterror word at State — my guess being he went there largely to coordinate rendition and the overseas black sites through State).

    Neither Black nor Richer were involved with Blackwater at the time of their assignations regarding the black sites, so far as I know.

  20. Gitcheegumee says:

    @Jeff Kaye:

    Thanks for the timely response, Jeff.

    I recall the Carle book salon(didn’t Marcy host that one?),and IIRC,I may have asked him the same question. He didn;t seem to have any info either.

    It IS intereesting to go back to John Walker Lindh and Copper Green.

    From my recollections, Blackwater was just beginning-yet, they were in Afghanisatn from the get go – before they became the gargantuan they later became

    .I have a vague recollection of them early on being involved in a Caspian Sea initiative,or Caspian Sea Guards..something like that.

    I welcome correction if I have misstated any of these timeframes or info.

  21. rugger9 says:

    @Gitcheegumee: #22
    I’m not sure these were ever answered, either, on any of the counts. Look at what’s going on on Poland about the black sites there. The Poles are seeing the light, and are less willing now to accept our word on blind faith even accounting for the fact we freed them from Soviet bondage [another bit of good will squandered by Shrub]. That’s what I was thinking of in my prior posts on the treaty, it’s only a change of government away from one way tickets to the Hague. As more of Europe realizes what Shrub and his pals sold them into, they will only be too happy to hang the enablers [has anyone seen the “poodle” Blair lately in serious discussions?] to solidify their political positions.

    It is interesting to check in on Lindh and compare him to the AIPAC spies’ treatment. IOKIYAR.

  22. GKJames says:

    Note, though, like the crafty criminal conspirator that he is, Rodriguez also makes sure that gets cover by implicating like-minded cretins: “I am certain, beyond any doubt, that these techniques, APPROVED at the highest levels of the US government, CERTIFIED by the Department of Justice, and BRIEFED and SUPPORTED by bipartisan leadership of congressional intelligence oversight committees, shielded the people of the United States from harm and led to the capture of [sic] killing of Usama bin Ladin.” (Emphases added.) All true, of course, but hardly exculpatory. Worse, while worrying about suspects’ “lawyering up,” he himself has had no difficulty doing so — at taxpayer expense.

  23. Snarki, child of Loki says:

    @BK: Normally, the International Criminal Court does not handle cases when a national court can do so.

    If the Statute of Limitations has run for torture, then the US cannot prosecute, and the ICC can pick up the case. But they need to be pushed.

    Presidential pardons do not apply to ICC convictions. Rather nice, that.

  24. JTM says:

    If you want a source for inside information on Blackwater (or whatever they call themselves these days), somehow join the car-related website called “TeamNABR” and then somehow get into the “backroom” sub-forum. I saw “kill” videos posted by Blackwater creeps on that site more than a year before I ever saw Blackwater mentioned anywhere else.

    And, no, I cannot get these videos for you. They banned me a long time ago for being “pink.”

  25. bmaz says:

    @Bay State Librul: Yep, there are ways of dealing with things in court. Don’t worry, the immoral, malicious and patently bullshit prosecution you so crave will probably still win out, thanks to the completely and asininely bullshit methods and acts of Jeff Novitsky and the most untrustworthy lying asshole in history, Brian Mcnamee.

  26. bmaz says:

    @Gitcheegumee: My best guess is they were made to aid in physical and psychological interpretation. I think Jeff Kaye will confirm, there is simply a LOT, I mean an immense amount, of physiologically instructive clues in the non-verbal conduct of a subject. There has long been a preference for accurate videotaping of interrogations within the relevant psychological, scientific and legal communities. Problem is, the cops do not like it because while it proves the success of their efforts, it also displays the ugly and illegal warts too. They love to crow about the former and would rather die than have the latter see the light of day.

    These people wanted not only that benefit, but to be able to show the string pullers what they wanted to see. A sick combination of those two concepts is my best guess. Better question is how all that plays in with the partial erasures, stop blanking and disabling performed even before final destruction, as Marcy pointed out in the previous post.

  27. Gitcheegumee says:

    @bmaz:

    Thanks for your input.

    Just a rhetorical question,but I wonder how many decades the visual,live documemtation of torture sessions actually span…and how many countries have done this…and,then shared these over the years to perfect their techniques ?

  28. Bay State Librul says:

    @bmaz:

    Novitsky’s tactics are no worse than Kalinda’s, but she’s hot.

    Drug dealers, cheats, pathological liars, and legacy — that’s what this case is about.

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