Lawyering the Torture Tapes

I speculated, a week ago, that the Directorate of Operations lawyers who gave Jose Rodriguez the green light to destroy the torture tapes did not know of the outstanding court orders that would have covered the tapes.

Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence.

Which is why I think the description in today’s NYT story on the torture tapes is so important.

The officials said that before [Jose Rodriguez] 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.”

Look at the language of these two versions, taken together. Newsweek reports that Hermes and Eatinger offered "no explicit legal reason why the Clandestine Service had to preserve the tapes" but did not "directly authorize the tapes’ destruction." NYT reports that they told Rodriguez that "he had the authority to destroy the tapes and that the destruction would violate no laws." Whether or not Hermes and Eatinger knew of the court orders and inquiries about torture tapes, their advice seems much more limited, perhaps discussing only the DO’s obligations regarding interrogation evidence in general. And even within that context, these lawyers appear not to have commented on the wisdom of destroying evidence on interrogations, which even aside from the court orders is a stupid idea. In other words, the NYT article adds support for my intuition that the legal opinion that everyone is claiming legalizes the destruction of the tapes was offered by two lawyers who may have been compartmented away from the discussions about the reasons not to destroy the tapes, and at the very least, may authorize the destruction of interrogation tapes in general, but possibly not these particular tapes.

And it is in that context that I’m most interested in the scoop-we-already-knew the story reports–the news that David Addington, Alberto Gonzales, John Bellinger, and Harriet Miers all participated in discussions of the torture tapes. After all, use of compartmentalization to gain legal authority for legally dubious acts has the all the hallmarks of David Addington’s work. So I think this story is as much about how these White House lawyers operated to ensure the destruction of the terror tapes as it is about who.

As to the implication that, if Gonzales and Addington were involved in the torture tapes, then so were Bush and Dick? I think this passage implies that Dick, at least, was part of the discussion.

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.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal. [my emphasis]

There are relatively few people who would merit the "top White House officials." Add in the consideration that those people would have a national security role, and you’re talking people like Condi, Scooter, Stephen Hadley. And Dick Cheney. If not Bush himself. So at least some sources are out there saying someone in the White House was actively lobbying to destroy this evidence. (Incidentally, it might be worth mentioning that Alberto Gonzales implemented the email policy that resulted in millions of lost emails, so he has a history of advocating the destruction of evidence.)

One more really important aspect of this story. Many stories that came out when this first broke named Harriet as the sole White House lawyer involved in the discussion of the torture tape. This story is perhaps most extensive in this same Newsweek article, which says that Harriet was involved for two years.

The CIA repeatedly asked White House lawyer Harriet Miers over a two-year period for instructions regarding what to do with "very clinical" videotapes depicting the use of "enhanced" interrogation techniques on two top Al Qaeda captives, according to former and current intelligence officials familiar with the communications (who requested anonymity when discussing the controversial issue).

Now, that story doesn’t make sense entirely. After all Harriet wasn’t in a legal position for most of the two years in question, she was Deputy Chief of Staff for Policy. Isikoff and Hosenball explained away that seeming oddity by saying the CIA wanted to deal with the political staff at the White House on this issue.

The reason CIA officials involved the White House and Justice Department in discussions about the disposition of the tapes was that CIA officials viewed the CIA’s terrorist interrogation and detention program—including the use of "enhanced" interrogation techniques—as having been imposed on the agency by the White House. "It was a political issue," said the former official, and therefore CIA officials believed that the decision as to what to do with the tapes should be made at a political level, by Miers—a former personal lawyer to President Bush and later White House staff secretary and counsel—or someone else directly representing the president. [my emphasis]

Which amounts to a claim that the White House never engaged with this issue (at least not until 2005, when Harriet became White House Counsel) legally. The early Harriet story suggested–falsely–that the only White House involvement with the torture tapes was on the part of Harriet, and that primarily in a political role. It was a story that claimed the White House never weighed in, legally, on the destruction of the torture tapes. 

The NYT tells a different story. Not only does it list several lawyers–including Addington, who is really this Administration’s chief lawyer–who were involved in the discussion. But it states that Harriet may not have been involved until she became White House Counsel.

The only White House official previously reported to have taken part in the discussions was Ms. Miers, who served as a deputy chief of staff to President Bush until early 2005, when she took over as White House counsel. While one official had said previously that Ms. Miers’s involvement began in 2003, other current and former officials said they did not believe she joined the discussions until 2005.

It seems an early cover story for the torture tape destruction was to blame it–and any of the crappy legal advice–on Harriet Miers. Doing so makes her into the scapegoat and implies that the White House did not engage legally with this issue until she ascended to White House Counsel. But the NYT story debunks that cover story.

Now who do you think would want to pin this on poor Harriet?

78 replies
  1. MarieRoget says:

    Nice to see Addington pulled out of the shadows to get some face time in the photos accompanying the NYT article. Given his probable role in this, his pic should dwarf the other three, though.

  2. Jeff says:

    Impressively astute reading of that article and the state of play on this issue. One thing that doesn’t seem to square, however. Even if Herms and Eatinger were compartmented out of consideration of the way destruction of the tapes might have conflicted with proceedings in the Moussaoui case, surely Rizzo was not, and he was told about the legal advice they had offered. That needs to be explained. How could Rizzo not have known and recognized immediately that destruction of the tapes would violate Brinkema’s order – if it did? Obvious possible explanations are that these tapes did not, arguably, violate Brinkema’s order, if they didn’t have to do with individuals covered by Brinkema’s order (or her questions to the prosecution and CIA); or the description of the legal advice was vague enough to provide plausible deniability to Rizzo and, in effect, all concerned.

    • emptywheel says:

      I agree.

      First of all, NYT makes it seem like these two were less compartmented out than the Newsweek did. So perhaps they were aware of some context (though it still looks like the question they were asked was, by design, very narrow).

      But I don’t trust Rizzo’s role in this, at all. I think he and Goss are the two that played dumb to make this tape destruction happen. And the story of Rizzo’s involvement has changed almost as much as the story of Harriet’s involvement, though going in the opposite direction. I don’t think Rizzo was compartmented out of these decisions at all, but then that’s why he didn’t give the legal advice that it was okay to destroy the tapes.

      Also, since the Newsweek article, it has become clear there were at least three orders that should have meant the tapes wouldn’t be destroyed. Brinkema’s was actually just a question: were there tapes? Though the reason why her questions are so pertinent is that the first discussions of destroying the tapes dates to around the first time she asked about the tapes, and the actual discussion of the tapes dates to precisely when she asked the second time.

      There’s also the case before Kennedy, which may or may not have been limited to detainees from Gitmo (we may learn more after Friday, though the brief in that was presented in camera).

      And finally, there’s the ACLU case where Alvin Hellerstein ordered the govt to retain anything related to detainees captured after 9/11 and held abroad.

      So as we discuss whether and how far those CIA lawyers were compartmented out of the legal discussions, it may pay to consider WHICH discussions we’re talking about.

  3. phred says:

    EW, I’m puzzled by this passage from the Newsweek article:

    videotapes depicting the use of “enhanced” interrogation techniques on two top Al Qaeda captives

    I thought there were tapes pertaining to 3 detainees, two known, one as yet anonymous. Are they parsing in some fashion, or is it just sloppy reporting?

    On another note, I really do get the sense that there is increasing activity to throw Cheney under the bus. Awhile ago I speculated that the establishment Republicans are protecting W for Mama and Papa’s sake, but I imagine they are quite willing to let Cheney take the fall for the malfeasance of this administration. I think the fact that Specter entered those letters into the public record is a clear indication of this. And now we have articles cropping up that specifically name Addington, and clearly allude to Cheney. Plus, Wexler and other members of the HJC are pressing to proceed against Cheney. I wonder if the establishment R’s are willing to let them have him now. Then they can point to Cheney and say everything bad is all his fault. R’s can claim Cheney was their bad apple and there’s nothing fundamentally wrong with the rest of them. W can finish his term in peace, and Republican voters can go to the polls and support their party next November, because all ills will have been addressed by removing Cheney. This is all pure speculation of course, but it does feel like things are starting to snowball.

  4. OldCoastie says:

    I wonder if Harriet is ever going to get tired of being the designated scapegoat? Sure seems like they are trying to push this all off on the hapless Harriet.

  5. Mauimom says:

    I wish you could give Isikoff a “subscription” to TNH. His reporting uncovers some interesting stuff, but he’s either too lazy or too dense to connect the dots.

    I think he just gets too excited in the “waving his hand in the air; I know the answer” way to actually think things through and examine them like a good reporter should.

    Did anyone here pull his name out of the hat for the office Christmas party?

  6. emptywheel says:


    I think if he were a better reporter, he wouldn’t get some of the scoops he gets. That is, if he actually questioned the spin he was getting consistently, the spinners would go to someone else to publicize their spin.

  7. wigwam says:

    Gotta love it:

    The CIA repeatedly asked White House lawyer Harriet Miers over a two-year period for instructions regarding what to do with “very clinical” videotapes

    I wonder if there is a book of euphemisms that these assholes share.

    In her book, Eichmann in Jerusalem, Hannah Arendt notes how Eichmann’s lawyer pleaded that his client “knew nothing of these clinical matters“, i.e., the murder of six million Jews and other “undesirables.” YUCK!

    • MarieRoget says:

      Ah, the clinical matters- but just think of some of the scenes that can be witnessed in clinics of all sorts.

      Not fooling anyone w/half an imagination, not even points for trying.

    • phred says:

      No, I don’t think Cheney would quietly take the fall, but this is where he and Addington may have been too clever by half. As EW points out, compartmentalization and plausible deniability has been the modus operandi of this administration, in general, and Cheney and Addington, in particular. If they have done this competently, they may not have left a trail of breadcrumbs to W’s door. In which case, they could be made to take the fall, because by their own doing they have not left sufficient evidence to bring down W. Don’t get me wrong, I think W is in up to his eyeballs in all of this stuff. I don’t buy the dumb-as-a-stump hick act he pulls at all, but he plays it well and he could easily save himself with it now. Unless of course, Cheney’s got the goods on W hidden in his man-sized safe.

  8. cboldt says:

    I wouldn’t assume that Hermes and Eatinger were unaware of any specific reason (i.e., a specific and particular court order), other than statutory law, that would preclude destruction of the tapes.

    Looked at as if they did NOT have knowledge, but are advising a naive client, between the two of them, neither had the foresight to put in the letter advising Rodriguiez that “of course, a specific court order, if one exists, would require preservation of the tapes.”?

    I haven’t read up on this, but I wonder what prompted them to write the letter in the first place. Who assigned them the task? Was their any editorial review of the letter of advice by their superiors?

    • looseheadprop says:

      Looked at as if they did NOT have knowledge, but are advising a naive client, between the two of them, neither had the foresight to put in the letter advising Rodriguiez that “of course, a specific court order, if one exists, would require preservation of the tapes.”?

      In government, and maybe in private industry, it is not uncommon for a subordinate, when asked to give an opinion–and where the truthful opinion would disappoint a boss(es) who doesn’t take disappoint well, to issue a very narrow, but technically correct opinion.

      In this way, the subordinate does not have to speak truth to power, does not have the boss(es) coing down on him, yet

      in an lovely kind of ironic revenge, that norrow opinion will not give the asshole boss much cover, if the boss goes ahead and does the dumb thing that the subordinate did not prevent

      It’s a chickenshit way to operate, but in government, it is often necessary to thread the camel through the eye of the needle,if you don’t want to get your ass fired.

      • selise says:

        can be a very difficult thing to figure out how to do, and i admire those who can pull it off. especially those who have responsibilities beyond themselves (like kids) to worry about.

  9. Scarecrow says:

    WH is asking for a correction of the NYT story. They want a retraction on the part that suggests there was widespread discussion about the destruction — CNN reporting on this now.

    So now the WH, a week before Christmas, is focusing attention on the NYT story that they considered destruction of evidence, and despite the refusals to discuss the matter — see Perino, they’re now discussing the matter when it suits them. This will be the lead story all day.

      • phred says:

        Well, it looks like the NYT dutifully bowed before the Emperor. I just clicked the link and there is no subheadline now, although they keep the assertion in the 2nd paragraph of the article.

        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.

  10. cboldt says:

    WH is asking for a correction of the NYT story. They want a retraction on the part that suggests there was widespread discussion

    They object to the adjective “widespread?” LOL. NYT named the players, some people would consider a discussion among 8 or 10 people, depending on the subject, to constitute “widespread.”

    • looseheadprop says:

      Yeah, but if you look at the part of the article that CIA wanted input from surrogates for the Pres, etc. That implies that the surrogates were talking to their principls and maybe the principles and surrogates were talking to each other.

      So at least double your head count.

  11. KagroX says:

    From today’s LA Times:

    It was also five months after Kennedy, in the case of the Yemeni prisoners, issued an order requiring that the U.S. preserve and maintain “all evidence and information regarding the torture, mistreatment and abuse of detainees now” at Guantanamo Bay. According to court papers, government lawyers said at the time that a formal order was not necessary because they were “well aware of their obligation not to destroy evidence that may be relevant in pending litigation.”


    In court papers filed last week, the Justice Department argued that the videos weren’t covered by the order because at the time Zubaydah and al-Nashiri were being held in secret CIA prisons overseas. The men were later transferred to the Guantanamo Bay prison.

    Gee whiz.

    Now here’s a blast from the past:

    There seems to be a common perception among many Bush critics — one which is a not-very-distant relative of all-out defeatism — that something as weak and unmuscular as a lofty Supreme Court ruling isn’t going to have any effect on the Bush administration, and that they are just laughing at the idea that what the Supreme Court says matters.


    Anyone who suggests that that is a meaningless development and that Bush officials are unaffected by them has embraced a cartoon super-villain version of the administration which is just not real.

    The court order not to destroy evidence of the torture of detainees at Guantanamo doesn’t apply because… Zubaydah and al-Nashiri weren’t yet at Guantanamo when the order was given.


    Who could’ve guessed that something as weak and unmuscular as a court order would have no effect on the Bush “administration?”

    Who could’ve guessed that the “administration” really was full of “cartoon super-villains?”

    • skdadl says:

      From the LA Times story:

      According to court papers, government lawyers said at the time that a formal order was not necessary because they were “well aware of their obligation not to destroy evidence that may be relevant in pending litigation.”

      Sincere question to the law-talkin’ people: isn’t that an awfully narrow basis on which to define the obligation not to destroy records? Surely the bar has to be higher than that; don’t alarm bells go off (or aren’t they supposed to) when a public servant starts asking questions about destroying anything?

  12. EWFan says:


    From the USD Law School Alumni Page:

    ROBERT EATINGER (J.D.) received the 2006 Kathy Stewart Award, the highest honor in the CIA’s Office of General Counsel. The award honors an employee who reflects the highest standards of dedication to service, commitment to the rule of the law and genuine caring for others. Robert served in the Navy Judge Advocate General’s Corps from his graduation until 1991, when he joined the CIA’s Office of General Counsel. He is currently chief of the legal group in the Counterterrorism Center.

    Here’s the link.

    Seems like the CIA was grateful for his service…

  13. whitewidow says:

    The article doesn’t just allude to Cheney, it names him specifically as having taken part in the discussions.

    Looks like Feingold is going to be busy updating Articles of Impeachment…

    • quake says:

      Looks like Feingold is going to be busy updating Articles of Impeachment…

      Since impeachment is carried out by the House, not the Senate, this seems unlikely.

      • phred says:

        Also, if Feingold has changed his opinion on impeachment, I haven’t heard about it. He made it quite clear over at DKos (in August was it) that he did not see a need for impeachment.

        • bigbrother says:

          Lots of people will be changing their minds on lots of issues as the high ground looks more attractive and the pork money runs out.

          Political cover doncha know.

          Did you see DiFi’s little dance like I’m bigger than you Chris and I want some of this fame… plausible deniability I’m for/agin imunity and now I’ll jump on the fence and see where this is going!

          More squealers, more snitches, more whistleblowers they can’t do the damage control. The last seven years was based on a lie and covered by more lies,

          London Bridge is falling down falling down falling down my fair lady Lo be that Young Robin Hood and his merry band. Ah and Maid Merriam you have come to join the dance. Where is nasty nottingham? The sheriff is busted> Oh My.

    • bigbrother says:


  14. WilliamOckham says:

    I assert that every reference to Miers is a way of pinning the blame on Bush without being explicit. This is the modern-day equivalent of “the king can do no wrong”. In the elaborate kabuki that is Beltway Journalism, the press and “senior WH officials” conspire to protect Republican Presidents from the consequences of their illegal acts. By naming Miers, the signals are going out that these inquiries must stop because they implicate Bush.

  15. Rayne says:

    Wonderful. SPECIAL REPORT on NBC — Eisenhower Executive Office Building on fire, near VP’s executive office, smoke billowing out, allegedly started 20 minutes ago in electrical panel.

    Um, how’d they make that determination so fast?

  16. Rayne says:

    Correction: fire near VP’s ceremonial offices.

    Still going on about it being an electrical fire.

    Jeepers, did a computer suddenly burst into flames?

  17. Rayne says:

    Ooh, it’s only a fire, nothing more suspicious, says analyst by phone to CNN…

    Maybe some White House and VP office logs were located next to the electrical panel.

  18. drational says:

    In addition to “who gave permission to destroy”, we should ask who told Rodriguez to get his legal advice from Hermes and Eatinger, rather than Rizzo.

    And here is something I think interesting: Wikipedia

    From 1996 to 1998, Rodriguez was CIA Station chief in Bogotá, Colombia. Rodriguez’s tenure in Colombia was marked by a 1997 incident as he interceded in the drug-related arrest of an associate. According to the New York Times, he was removed from his position and a report by the C.I.A.’s inspector general criticized Mr. Rodriguez for a “remarkable lack of judgment.”

    I wonder how this lack of judgement black mark was scrubbed?

    On November 16, 2004, Rodriguez succeeded Stephen Kappes to become the Deputy Director for Operations.

    How is that for timing? Right when the Administration is recovering from the OLC uprising…

    On February 7, 2006, Rodriguez fired Robert Grenier, his successor as Director of the CIA Counterterrorism Center, for not being “aggressive” enough in combating terrorism.


    Gee, fired the guy who collaborated with Fitz? Can you say Manchurian Candidate?

    • bigbrother says:

      This much better thAn any movie or play I have ever seen. You might want to copyright the Lake book and film rights. I call it “The Never Ending expose of the dirty rotten scandals and Their Never Ending War” Vol. I, II and III. Right about now is someone thinking OH WHY DID I HAVE TO BE PRESIDENT YUM YUM “BRING IT ON” where did we hear that before?

  19. nolo says:

    . . .Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal. . .

    [emphasis supplied — by me.]

    this is — by far — my favorite bit
    of the article. i think EW has done
    a stellar job of parsing the “we’ll
    just compartmentalize the information
    the way we always have
    ” angle, favored
    repeatedly, with great prior success,
    by cheney through addington. . .

    but the above, bolded, quote — as i wrote
    late last night — means at least addington’s
    law license, if not his future liberty, may
    be in peril, here (and who seriously thinks
    the ego-maniac addington will take a scooter
    for “richard the bruce“?! — he WON’T!).
    there can be no “i didn’t know” defense when
    you are the one who knew it all. . . and that
    is likely addington – but not gonzales or miers

    there can be little doubt that both
    cheney and addington were closely monitoring
    {with the aid, no doubt, of cheney’s DoJ all-
    access pass
    , remember!} any important
    developments in any of the detainee lawsuits,
    and/or terror-prosecutions — so. . . it is fair
    to assume that addington, and therefor cheney,
    knew of the various federal court orders in-
    quiring about torture tapes — and ordering
    the preservation of evidence. that “no white
    house lawyer
    ” discharged their specific ethical
    duty, given this knowlege, makes a strong case
    of at least sanctionable misconduct, if not
    criminal culpability.

    no, addington won’t play scooter-ball.

    he’ll light cheney up, before he goes down.

    this will be delicious. and now, per
    scarecrow — we learn that the white
    house itself wants to quibble about
    the NUMBER of people involved in the
    discussions? — priceless!

    that is great stuff!

    this will own tonight’s news.


  20. radiofreewill says:

    I’m going to take a wag on the development of this story.

    Harriet was the Staff Member tasked, early on, with ‘connecting’ Bush to the Harsh Interrogations Program – suggesting that Bush really did ‘force’ Systematic Torture on the CIA via backdoor arm-twisting.

    The ‘clinical’ descriptor of the Tapes suggests that ‘experimentation’ was going on to determine if the Harsh Interrogation Methods were actually effective – the upshot of that being the White House was an Active Participant in the Administration and Evaluation of the Torture Itself.

    I suspect Harriet was named early because she was Bush’s Scribe for the inception of the “take it to the next level” Harsh Interrogation Techniques Program. I further wouldn’t doubt that she ’shuttled’ the Tapes for Bush’s viewing – all in the name of ‘evaluating effectiveness.’

    Now that the story is breaking out of their control, Cheney/Addington/etc are throwing-up Cover for the Bush-Miers-CIA-Backdoor.

    If Miers would testify, I think we’d hear an ‘enabler’ to the President – Duped into thinking she was On the Front Line of the War on Terror, and Loyally, Willingly participating in the Creation of the Harsh Interrogation Program – for the Good of the Nation.

    However, it’s the issue of the Destruction of the Tapes that appears to have been the Cold Splash of Water in Miers’ Face that made her realize Bush’s interests in the Harsh Interrogation Program were ‘less than Clinical.’

  21. cboldt says:

    So at least double your head count.

    Reading the article at “The Hill,” I see WH objection is based on the fact that they haven’t indicated any particular degree of involvement, so it is unfair to say that there was “more involvement” that what the WH indicated.

    Very strange objection, to a sub-headline. It’s easy to pick out false and misleading headlines and sub-headlines. I sense a defensive reaction, likely because the reports are hitting close to a target.

    it is not uncommon for a subordinate, when asked to give an opinion … to issue a very narrow, but technically correct opinion.

    That’s exactly what I had in mind. And why I’m as interested in who asked for the opinion, and who, if anybody, reviewed it. The same sort of CYA activity can happen “below” direct contact with the bosses too. All the boss has to say is “I wonder what to do about those tapes,” and a few enterprising underlings will coordinate a paper trail without further contact with the boss.

    The fact that the opinion is narrowly drawn is a bit of red flag to me, where the question is clearly on destruction of the tapes. And then to have this narrowly drawn opinion be cited as “the green light.” Just too scripted.

  22. earlofhuntingdon says:

    Lawyers – certainly mid-level lawyers in this oh-soo-punitive administration (they fire even the Park Service police for speaking off message) – can only answer the questions asked of them, based on the facts asserted by their client, including non-facts or those that they can “reasonably” assume away as irrelevant.

    Stove-piping-for-a-political-purpose is a defining characteristic of this administration, be it intelligence, legal opinions, acknowledgement of inconvenient facts, or whether the president has a “plan on his desk” at a specific time (”No, the aide next to him has it.”). It’s part of the art of deceiving without legally lying, which Rove and Addington have taken to new heights.

    So, the odds are excellent that these two lawyers gave opinions that said what Addington & Co., wanted to hear. Addington would not ask for an opinion he knew he wasn’t going to get; if he got one, it would never see the light of day and the offending lawyer, and the computer and server used to write or communicate it, would be promptly “upgraded”.

    Bush doesn’t or can’t read, he has things read to him, which is a wonderful tool for someone else to cotrol what he knows and thinks. It is Cheney who is obsessed with secrecy. He doesn’t believe in leaving a paper trail that discloses issues or decisionmaking; if he leaves one, it’s for some other purpose.

  23. bmaz says:

    Hey CNN says the fire is in the area where they keep all the classified information such as saved emails and information from the vice-president! Who could have ever imagined that the fire would involve classified information. I can literally see these clucks going into Kennedy’s court on Friday and saying “Like to help you Judge, but it all burned up”!

    • nolo says:

      if this happens — if it goes
      down this way — this will be known
      as the plumbers’ moment of this
      administration. . . wow.

      just, wow.

      how stupid are these jerks?

      do they think we don’t know
      cheney was in the nixon white
      house — as was rummy? this is
      right outta’ that play-book. . .


    • selise says:

      Hey CNN says the fire is in the area where they keep all the classified information

      joking right?

      normally, i wouldn’t have to ask… but now-a-days i don’t know if i’m reading the nyt or the onion.

      • bmaz says:

        I am not joking in the least this time (I fully admit my reputation). I also heard someone say, on either CNN or MSNBC, that “this is really going to throw their document programs into disarray”. or close thereto.

        • phred says:

          I suppose once one begins destroying evidence (emails, tapes, god-knows-what run through Cheney’s renta-shredder, etc.) it becomes difficult to stop. Arson’s just another tool of the trade.

          And EW, it was a small chemical explosion at the FOX News building on Monday, a chemical used in the heating and cooling system fell on the floor and mixed with something else — sounds like the worker bee involved dropped the stuff by accident.

        • selise says:

          I am not joking in the least this time (I fully admit my reputation). I also heard someone say, on either CNN or MSNBC, that “this is really going to throw their document programs into disarray”. or close thereto.

          it wasn’t your reputation – it was the last few years of the bush administration that has me unable to tall truth from fiction. *g*

          and of course my power goes out – again – so have no clue what’s going on and am going to try to catch up now. sounds like the shit is hitting the fan (fingers crossed)

    • MadDog says:

      MSNBC says that while the fire is in the area of the VP’s “Ceremonial Office”, the nearby offices are working offices for the VP’s national security staff. That would be Mr. David Addington.

      So let’s see my mini-EW Timeline:

      1. CIA destroys interrogation tapes.
      2. MSM reports only list Harriet Miers as WH involvement.
      3. Judge Kennedy orders hearing on CIA destruction of tapes.
      4. NYT “clarifies” that Fredo and Addington were involved in destruction of tapes discussion.
      5. NYT states “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.”
      6. Fire occurs in WH Executive Offices housing VP’s National Security Advisor.

      Guess those tapes are really destroyed now.

        • MadDog says:

          Well, technically, Addington is the COS, which encompasses everything. And Cheney’s NSA just left; not sure if he has a new one.

          I would suggest that while Addington “moved up” as COS after Scoots skedaddled, Addington never really took off his National Security Advisor to VP hat. His “replacement” was probably a dutifully loyal gopher.

          Addington would never relaz his grip on power. People like that never do.

          • emptywheel says:

            Addington never was NSA, Libby was NSA and COS. When Libby resigned, Addington became COS, Coffin became Counsel (to replace Addington), and Hannah became NSA. Hannah is no “gopher.” He’s been intimately involved in all of this stuff.

            • MadDog says:

              Dang, EW has a memory like a computer. *g*

              Ok, ok, Addington was never formally Deadeye’s NSA. My bad. *g*

              But with Addington’s previous duty as assistant general counsel of the CIA, he probably never skimps on offering Deadeye NS advice (Heck yes Mr. VP, we gotta destroy our copies of the CIA interrogation tapes ’cause it will eventually leak. Everything always does. Shall I light the match or would you like the pleasure?).

      • bmaz says:

        You left this item off your list:

        “The “Archivist Who Cared”, Bill Leonard, left office at 5:00 pm the Friday before the fire……

          • bmaz says:

            I thought you responded to some Leonard comment of mine last week that he had 40 hours left or something to that effect. I now look it up and he leaves effective at the end of year. My bad.

  24. MadDog says:

    In the NYT article, this part caught my attention:

    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.

    Would the bolded person be John Negroponte? The very same person who has been reported to have written a letter to Goss that the tapes are not to be destroyed?

    • emptywheel says:

      Yeah, that would make some sense, wouldn’t it? Though I’m not sure whether Negroponte is sufficiently independent to bust the White House yet. Particularly not since Condi may be involved as well.

      Though maybe he wants to be Secretary of State really bad.

      • MadDog says:

        One key point to consider is the fact that Negroponte’s memo even saw the light of day at all. There can’t be too many folks who knew of it.

        And since all the MSM reporting has been via its typical anonymous sourcing, I could well imagine Negroponte telling some of his DNI tales out of school and in his own vested interest.

  25. earlofhuntingdon says:

    Fire? I guess the news that the federal government’s data shredding budget has grown 600% under Cheney suddenly made everyone budget conscious.

  26. earlofhuntingdon says:

    Fire? This administration classifies everything, so that designation no longer tells us whether what’s going up in flames is important. But if I were the DC and/or federal fire marshall, I’d crank up my arson investigation budget big time; 2008 is likely to be a busy year.

  27. eyesonthestreet says:

    As I read this post, and an article published last year in The New Yorker, by Jane Mayer,…..03fa_fact1
    about Addington, I wonder:

    1) If the hand-written notes made on the memo’s from the Scooter trial were Addington’s and not Cheney’s, see:

    “At the Pentagon, Addington became widely known as Cheney’s gatekeeper—a stickler for process who controlled the flow of documents to his boss. Using a red felt-tipped pen, he covered his colleagues’ memos with comments before returning them for rewrites. “

    2) that evidence, such as the tapes, were under the “New Paradigm,”
    “Defense circulated internal memos suggesting that, in the commission system, defendants would have only limited rights to confront their accusers, see all the evidence against them, or be present during their trials. There would be no right to remain silent, and hearsay evidence would be admissible, as would evidence obtained through physical coercion. “

    As the article concludes, Addington is carrying around in his vest pocket a copy of The Constitution he never bothered to study.

  28. emptywheel says:


    Absolutely agree about that. But we’re trying to guess where a fire is based on the organization of the office. I suspect that Addington took over Libby’s office, but that’s just a guess.

  29. Mary says:

    No time to read through all the comments and this point has probably already been made, but there is no way that Herms and Eatinger were doing anything other than deliberately obstructing justice if they gave the ok to destroy those tapes and there’s no way around that, specific knowledge of specific details of various court orders notwithstanding, as long as they knew what was on the tapes. If they didn’t know what was on the tapes and gave an ok to destroy them, then it is so disingenuous and such a breach of any standards of due diligence to do such a thing, that imo even that wouldn’t get them off that hook.

    Knowledge of details of orders or not, here’s what was public knowledge in 2005.
    A. John Ashcroft and Larry Thompson were being sued by a rendition/torture victim, Arar, under the Torture Victims Act.
    B. Jose Padilla had been picked up on an arrest warrant and his lawyers had immediately and publically claimed that one of the sources for the warrant was Zubaydah and that he had been tortured and there were motions on voiding the arrest warrant as unconstitutionally issued based on tortured statements.
    C. Moussaoui had been publically claiming that Zubaydah could exonerate him and that Zubaydah was being tortured.
    D. All kinds of groups and members of Congress were asking for information on torture.
    E. The US has something called the War Crimes Act and is a party to the Torture Conventions and enables that in part through the Torture Victims Act and those statutes were implicated by the tapes and claims under those statutes were being actively, openly and publically pursued
    F. Men in at LEAST TWO pending cases in the US, Moussaoui and Padilla, had specifically raised Zubaydah and his interrogation in their cases.

    I’m very sorry to tell Herms and Eatinger this, but whether they knew of the specifics of orders or not, with all that (and more, there was the Comey Padilla press conference and their evidence from those tapes that he had misrepresented to the American public, the threats from an FBI to arrest CIA interrogators, the very public claims by FBI Agent Coleman about torture, etc.) there was not one question but that destruction would be obstruction.

    Not only that, but to the extent anyone actually believed the lies of people like Ashcroft, Tenet, Bush, Comey, Cheney, etc. about the “important intelligence” then destruction of the tapes was putting national security completely at risk. That’s a different concern than the very clear and very violated standards on obstruction of justice by destruction of evidence that would be important in several pending cases, but it is still a factor. If the info had a claim of classification, then how could destruction of classified info not be a crime unless it was appropriately authorized? If the “classifed” information from the “harsh interrogation” was all generated at the order of the Executive, then its the Executive who has to make the decision on what happens. What corporate lawyer would tell an VP that he can destroy files specifically ordered created and kept by the CEO, without getting an ok from the CEO?

    And btw, why was Rizzo not giving out directives for documents to be preserved as any good lawyer does even prior to any court order bc of the knowledge that it doesn’t take violation of a court order to be guilty of obstruction. It’s the first thing a lawyer who doesn’t want to be caught in obstruction claims does. You tell your clients – do not destroy anything. You don’t wait for a court order and then tell only some people, here and there, that it might be ok to destroy or it might not, you have no real opinion on it.

    Not one believable shred in claims that lawyers would have had any valid reason to think they were doing anything other than conspiring at obstruction when they ok’d destruction and that doesn’t need active knowledge of an existing court order. Then there is the constructive knowlege issue as well and Rizzo’s culpability if he didn’t issue a no destruction notice.

    • bmaz says:

      Yes to all that; and, not to mention, any experienced and ethical lawyer in his or her right mind responding to this question would cover his and his perceived clients ass up one side and down the other by noting and warning of contingencies that could be, or come into, play. For instance, you know, like there could be court cases pending or that potentially could be filed, as well as the cases of the tortured individuals themselves. The argument that there was no reason not to destroy the tapes is just fucking moronic. Only an imbecile would even hesitate before falling on the floor laughing at this position.

  30. DeadLast says:

    “Now who do you think would want to pin this on poor Harriet?”

    Nobody knows the trouble I’ve seen, nobody knows but Jesus!

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