A Cheap Ploy to Avoid Giving Testimony, Jose Rodriguez

Today’s article from Joby Warrick and Walter Pincus answers a lot of questions we’ve been asking about the torture tapes–the biggest being that the tapes were stored and destroyed in Thailand. And it has a lot of interesting details I’ll return to in a follow-up post, after I enjoy some rare MI sun with my dog. But the most important detail readers should take away is its function, as suggested by the following two passages. First, the recognition that John Rizzo will testify before HPSCI today.

John A. Rizzo, the CIA’s acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

And second, the incorporation of long excerpts from a written statement from Bob Bennett to present Jose Rodriguez’ justifications for his actions.

Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.


Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover." [my emphasis]

Much as I love Walter Pincus and usually respect Joby Warrick’s work, this article is no better than the Steno Sue and Pool Boy article that appeared on the day Judy Miller testified, outlining in detail how Scooter Libby would like her testify. Pincus and Warrick allowed themselves to be used by Bennett (who, incidentally, was apparently leaking strategic bullshit to Pincus back in the Iran-Contra days, too–see Firewall, p. 422) to present his client’s perspective after that client refused to go before Congress and present that perspective under oath. The article basically allowed John Rizzo and Jose Rodriguez to coordinate the stories they’ll tell to Congress and John Durham, which may well have hurt the chances that either Congress or John Durham will be able to get to the truth about the terror tapes.

Jeebus, Pincus. Congress, thus far, appears to have learned the lesson of Iran-Contra, not to taint criminal investigations by offering immunity willy-nilly. But here you are, more than fifteen years later, doing Bob Bennett’s dirty work once again.

34 replies
  1. BayStateLibrul says:

    I alway thought Pincus was a weird duck…
    Almost seemed to be holding stuff back…
    To many ifs, and maybes…
    Just my perspective

  2. JohnForde says:

    And now the WH has taped over the backups of it’s email system.
    But they manage to get in the phrase ‘best practices’.

  3. Neil says:

    Congess’s grant of immunity isn’t the only way to screw up an investigation. Limit the scope. Keep the prosecutor close at hand. Have counsel leek the spin testimony to the press in advance of the spin testimony.

    Enjoy the sunshine. Ahh the sunshine.

  4. Jeff says:

    I actually agree with the point about the timing and signal-sending – why couldn’t the Post wait until tomorrow? That said, there is a lot of interest in the article. Here’s a comment I started in response to bmaz’ in the older post:

    For my money the most intriguing quotation from Hayden is this one:

    Hayden, in an interview, said the advice expressed by administration lawyers was consistent. “To the degree this was discussed outside the agency, everyone counseled caution,” he said. But he said that, in 2005, it was “the agency’s view that there were no legal impediments” to the tapes’ destruction. There also was “genuine concern about agency people being identified,” were the tapes ever to be made public.

    Now, the gist of the comment is to suggest that the decision to destroy the tapes was entirely internal to the CIA, and the suggestion is that everyone outside the CIA – i.e. the administration including the White House, DoJ and State – indicated the CIA should preserve the tapes. However, that’s not what Hayden actually says. What he says is considerably more ambiguous: “To the degree this was discussed outside the agency, everyone counseled caution.” It is perfectly possible that someone counseled caution and yet either left it open whether the tapes should be destroyed or cautiously counseled that they be destroyed. Someone should interrogate John Bellinger about just what Alberto Gonzales and David Addington counseled, however much it can be described as counseling caution.

    But this brings me to another newsworthy item in the WaPo piece:

    The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as “fleeting,” when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

    Now, I will admit that I am skeptically reserving judgment on how “fleeting” the discussion was in May 2004 (or how significant it was, regardless of how lengthy). But I believe this is the meeting we have heard most about. When was the other one? What were the circumstances? Was this the meeting with Miers – and who else? Do we know this yet?

    The paragraph right before that one says:

    In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA’s harsh interrogation program.

    How does this relate to the meetings with those in WH and DoJ, if at all? I take it this is a reference to the Goldsmith episode. I gotta look up the WaPo article, but I am guessing that was a report on the August 1, 2002 torture memo, and the “internal Justice Department review of that definition” was Goldsmith’s – though he says he had already decided many months before that the August 1 2002 torture memo needed to be withdrawn and replaced. That happened in June 2003, however, according to Goldsmith, when the memo itself was leaked and then a week later DoJ announced it was withdrawing the memo. (June 8-16 or so.) Finally on this, I’m not sure we knew before this that it led to the suspension of the CIA’s program, though maybe we did – and in any case, this article suggests we stopped waterboarding people in 2003, though of course there were other torture techniques we presumably kept using.

  5. RockPaperScizzors says:

    I have one question about the “torture tapes,” seriously, tapes were used?, like what 8 tracks or VHS or audio recording tapes? C’mon, what year is this? They gotta be lying and expectin Joe six-pack to believe this. What happened to digital memory cards, discs, dvd’s, and zip drives? Maybe they need to visit this website: Digital Image Recovery Software Tips
    Bootcamp 226: Recovering Lost Images by Rick Maybury
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    • bmaz says:

      Your point about analog versus digital media is valid, and has been made by just about everyone. However, from someone who has worked on interrogation cases, and evidentiary concerns therein, I much prefer to se a good old analog magnetic tape such as a Beta or VHS, because it is infinitely harder to tamper with, and attempts to do so are much more easily detectable. I have not talked to any of my old experts in several years, but when I was last in touch and discussing any of this, digital recording was already around (although not so prevalent) and the opinion then was analog tapes for authentication purposes.

      the gris @6 – I believe I saw something about the tapes being “pulverized”.

  6. thegris says:

    I have been wondering how the tapes were “destroyed”. How, exactly? If they were physical video tapes, were they shredded? Erased magnetically? Burned?

    It’d be quite interesting to know, esp considering the recent fire near Cheney’s “ceremonial” office and Addington’s real one.

  7. bmaz says:

    This is the comment I made on the old thread that Jeff referred to above:

    Good article. Interesting, it is chock full of damning information, but still manages to phrase it all in a manner that soft sells the whole matter and makes it sound acceptable. It is not. The tapes were material, and most enlightened experts would say exculpatory, evidence to the cases of the individuals being interrogated/tortured at a bare root minimum. Above and beyond that, however, the tapes were also direct evidence of the commission of national and international crimes and war crimes. The Post article really is juicy, but I will leave for now with this quote from Hayden:

    Hayden, who became CIA director last year, acknowledged that the questions raised about the tapes’ destruction, then and now, are legitimate. “One can ask if it was a good idea, or if there was a better way to do it,” he said. “We are very happy to let the facts take us where they will.”

    Good. Let it lead to the Cheney/Bush Torquemad torture brigade being placed in a dank prison cell for the rest of their miserable fucking lives. That is where it should lead.

  8. FrankProbst says:

    The e-mail thing is just getting more and more bizarre. The original e-mails AND the backups were erased. And yet Luskin says, “There’s never been any suggestion that Fitzgerald had anything less than a complete record.”

    Let me make it official, then: I suggest that the erasure of both the original e-mails AND the backups could mean that Fitzgerald has something less than a complete record. I further suggest that you would have to have some sort of neurological problem if you thought otherwise.

    I also suggest that erasing information that you have a legal obligation to preserve is not “consistent with industry best practices”, unless you are in the business of habitually breaking the law and then getting caught red-handed doing so.

  9. MadDog says:

    If I were to put on my faux lawyer’s chapeau for a moment and pretend to be David Addington (hence the reference to faux *g*), I could imagine myself outlining (but not “giving” legal advice or direction) the consequences of keeping vs destroying the Torture tapes.

    Such ruminating would produce:

    1. Keeping the Torture tapes would be maintaining the integrity of evidence that might be sought by various parties in legal proceedings, however those same Torture tapes might also be incriminating physical evidence with criminal (and civil) penalties attached.

    2. Destroying the Torture tapes might possibly be destruction of evidence in possible legal proceedings with commensurate penalties, however the destruction of the Torture tapes as physical evidence would still leave the possibility of circumstantial evidence produced via testimony of participants and/or viewers of the Torture process. Needless to say, but testimonial evidence can be problematic given the vagaries of people’s recollections, the passage of time, differences in opinions etcetera.

    And therefore, I as David Addington would have provided the intellectual “wink and nod” to the Torture tapes’ destruction without ever explicity saying so.

  10. Hugh says:

    I have difficulty believing that Rodriguez destroyed the torture tapes because of Dana Priest’s November 2005 article alone. For one thing, Dana Priest wrote an article back in December 26, 2002: “U.S. Decries Abuse but Defends Interrogations: ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities”.


    This article mentions torture, overseas detention facilities (black sites), and questions of legality.

    The picture that emerges is of a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation, in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred.

    While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary.

    The off-limits patch of ground at Bagram is one of a number of secret detention centers overseas where U.S. due process does not apply, according to several U.S. and European national security officials, where the CIA undertakes or manages the interrogation of suspected terrorists.

    I would submit all of the reasons which drove supposedly Jose Rodriguez and the Thailand division chief to destroy the tapes in November 2005 had already been in the public domain for nearly 3 years before Priest’s November 2, 2005 article: “CIA Holds Terror Suspects in Secret Prisons: Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11” ostensibly precipitated the tapes’ destruction.


    I would also say that going back and re-reading Priest’s article. It is clear that she was spun by intelligence officials about the efficacy of their techniques (torture). Thailand is mentioned twice, once in a list of black sites and once to say that site was closed in 2003. The thrust of the legal concern raised in the article isn’t even about torture but the nature of the detentions:

    Since then, the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. Mid-level and senior CIA officers began arguing two years ago that the system was unsustainable and diverted the agency from its unique espionage mission.

    There is only a single oblique remark that could even possibly in retrospect be linked to the torture tapes:

    Although no direct evidence of mistreatment of prisoners in U.S. custody has come to light

    That’s it. There are several mentions of rendition to countries that torture: Saudi Arabia, Egypt, Jordan, Morocco, and even Syria. Given all this, what would Rodriguez and his station chief find in this article that would be so disturbing as to cause them to act?

    At best, I think the November 2005 is just one in a constellation of events that were all happening at this time. In addition to the Priest article, there was the passage of the McCain amendment on October 5, 2005 about treatment of detainees and the CIA’s negative reply to Judge Brinkema’s question in the Moussaoui trial about tapes of interrogations on November 14, 2005. There were the ongoing and unresolved discussions about the tapes in the White House that Rodriguez knew about and which provided him with a strong incentive not to act. There was the 2003 Inspector General’s “special review”. There is the fact that the Thailand site had been shut down for 3 years. There were the legal questions raised back in Priest’s 2002 article which again argued against destroying the tapes, and there are probably several other factors that we still don’t know about. But with all of this floating around out there, how credible is it that Rodriguez acted either on his own or in response to an article that created a stir to be sure but was in essence repeating information that was 3 years old?

    • emptywheel says:

      There was another article, though, that may well have been the big issue: the November 9 Doug Jehl article providing extensive details about the IG report. That basically made it clear that the CIA itself believed the interrogations were illegal.

      Also, keep in mind, the McCain bill wasn’t finalized out of conference committee until mid-December–they were still fighting over 1) photographing of detainees and 2) whether CIA would be subject to it or not.

      • Hugh says:

        The McCain Amendment with its attendant coverage was nevertheless out there. And it wasn’t when it was signed it was the lead up and passage which were the big story. In the Pincus article it is November 2005 Priest story which is mentioned not the Jehl story. Your link by the way takes me to the CIA press release archive and there is no November 9 listing. Even so the Jehl article would only be a further reason not to destroy evidence to a potential criminal proceeding. Rodriguez knew there were legal questions and so knew also he had an obligation not to destroy evidence related to those questions. Bennett’s justifications and the WaPo article itself are all part of a song and dance to distract from this.

  11. bmaz says:

    EW and Hugh – I would suggest that, generally, it was right about that time that, due to several forms of pressure, but most notably court decisions, the Administration fully realized that they could not keep all of the detainee issues out of normal courts. It wasn’t just Massaoui (not that Massaoui alone might well be enough motivation, it easily could) but others were headed there as well. That means discovery requests that can’t simply be unilaterally refused.

    • Hugh says:

      I would agree. My original intention in bringing up Priest’s 2002 and 2005 articles is that I think they are worth looking at again. The 2002 article goes considerably further than I would expect while the 2005 despite all the hoopla about it actually doesn’t go as far as many now think it did. But the latest cover story about the tapes’ destruction still doesn’t get to the heart of the matter, that with real or potential legal proceedings going on to which the tapes were relevant Rodriguez had a duty not to destroy them. As head of the clandestine service, he knew this but chose to destroy them anyway. The rest of his story or stories are just so many shiny objects.

      • emptywheel says:


        Absolutely agree there were myriad reasons why CIA legally had to. What I’m interested in is what was the precipitating factor that brought them to do it in 2005, and not 2004 (when the IG report was done, originally the time when CIA said it would destroy them) or later in 2004, when Goss and Rodriguez took over. If we can figure it out, it’ll explain a lot more about who was involved with what motivation.

        I also agree that the D Priest story is a bit of a red herring. But remember thta most non-WaPo tellings of this story say there was general press attention. The reason i raised Jehl’s article is it may well be one of the most pressing reasons they destroyed the tapes. The tapes were always closely tied to the IG investigation, both contemporaneously according to Scott Muller and according to CIA’s declaration of last week. Originally, they were going to destroy the tapes when the IG investigation was done–which would have been May 2004. But at that point they became evidnece of illegal acts, which I’m sure changed the calculation even while it made some–people like Addington, I’d imagine, more interested in destroying the tapes. But I can well imagine that if the CIA anti-torture faction leaked the contents of the report to influence the final outcome of the McCain amendment (which is why it’s important that the debate was still active in November–they were still trying to affect the outcome), it would scare CIA into destroying the tapes. They knew, at that point, that some within the agency were willing to use the tapes as evidence that people at CIA had been breaking the law.

  12. bmaz says:

    The LA Times reports:

    Alleged “dirty bomb” plotter Jose Padilla and two codefendants were engaged in terrorism when they conspired to fight in foreign holy wars and should spend 30 years to life in prison, a federal judge ruled Tuesday.

    The sentencing guidelines imposed by U.S. District Judge Marcia G. Cooke seemed to indicate that, at least in the case of 37-year-old Padilla, she would heed prosecutors’ call for life without parole.

    Specific sentences will be set by the judge as early as Friday, after testimony by character witnesses for the three defendants. But by endorsing the “terrorism enhancement” multiplier applied in a probation officer’s pre-sentencing report, Cooke effectively rejected defense lawyers’ calls for leniency.

  13. maryo2 says:

    April 13, 2007 WH Press Briefing
    Perino: “… we do not have any indication that there was any basis to conclude that there was any wrongdoing, intentional wrongdoing in the use of the RNC emails. You’re talking about the double-delete function, where you can delete your deleted files?”

    Notice that she does not say that there was no wrong doing, she says (rather blatantly) “Na na na boo boo, you don’t have proof that there was intentional wrong doing.”

    The notice she uses the phrase “the double-delete function, where you can delete your deleted files” as if she knows EXACTLY what is meant and how it is done. Nobody else said “You know, Dana, the ‘double-delete’ function.” She used the phrase in a way that implies that she is VERY aware of what and how.

    • Hugh says:

      The Clandestine Chief did his job. He kept the secrets.

      It wasn’t his call to make as discussions going all the way up to the White House showed. So no he did not do his job. The secrets you refer to were known by late 2002 so the keeping the secrets argument doesn’t fly either. What Rodriguez did was destroy evidence in violation of the law. Government officials are supposed to uphold the laws not break them. I know this principle has been trampled in the dirt by the Bush Administration but it is still there and still important.

      • JodiDog says:

        Yes many people had information about the secret events, but the tapes possess a life of their own, as we can see by the desire to get a copy and the anger at their loss. The Clandestine Chief did his job protecting that part of the event that he had control of.

        As for illegality, well let us wait for some charge before we say he acted illegally. Or don’t you believe in due process?

  14. Mary says:

    I don’t have a firm vote on THE most intriguing quote or info, but I’ll add this one to the roster:

    “It was an agency decision — you can take it to the bank,” CIA Director Michael V. Hayden said in an interview on Friday. “Other speculations that it may have been made in other compounds, in other parts of the capital region, are simply wrong.”

    So Hayden, who was not there when it happened, and who is not in the WH and was not a party to any of the conversations that have been revealed, is making it a “take to the bank” statement that all the decisions to destroy were done internally within the CIA.


    Ok, so NONE of the decisions to actually torture were made merely internal to the CIA, and were instead all backed by DOJ solicitation/immunization memos and Executive Orders. The tapes supposedly where of interrogations done by either a criminal or war criminal – take your pick – asking about criminal or war crimes activities and participants, but no one included DOJ in the decision to destroy?

    DOJ in 2005 was involved in an “unprecedented” review of all the Zubaydah/Binyam Mohammed information in connection with compiling the June 05 Padilla press conference, but the fact that there were tapes of interrogations of Zubaydah never came up? No one involved in the DOJ decisions to solicit continued punishment/detentions for Padilla reviewed them? No one from DOJ was working up info on Zubaydah where they needed to look at the tapes?

    If the Sup Ct ruling on Padilla that fall had been to release or charge – which is what it looked like it was going to be – the issue of access to torture evidence relating to the “witnesses” in his case would have coming up pretty quickly.

    For that matter, why there was not any general DOJ warning/ruling that evidence relating to interrogation of terrorism suspects or witness should not be destroyed baffles me. Unless, of course, DOJ was complicit in the structure of torture interrogations and didn’t want those performing the DOJ solicited abuse to keep evidence, but also didn’t want any smoking gun testimony or email that they had specifically said to destroy evidence either, since individual lawyers would run the individual risks of obstruction and being disbarred. So silence, or statements to the press, not under oath and not to Congress and the Courts directly.

  15. Mary says:

    Another interesting piece of info from the article IMO is that pyschologist “experts” were not present during the torture to provide any input.

    • bmaz says:

      Don’t know about THIS Administration, but often the shrinks would not be present (often they are on the other side of 2 way glass as well) and that is why tape is made, especially in unique and volatile situations, so that minute observations can be made by the same later in time. For what its worth…

      As to your last paragraph at 25; ya think? Heh heh. This crap is so patently absurd that sometimes my brain just aches. A first year law student ought to be able to see through this stuff; yet it sticks….

    • TheraP says:

      bmaz’s supposition makes sense. Likely the tapes would be carefully analyzed. Makes me sick to think of it!!! And not being part of the interrogation team makes it appear as if the shrinks are being “objective observers.” Complicit too, say I. But that would be the fiction.

  16. Mary says:

    27 -the reason I mentioned the shrinks not being present is that some of the articles exploring the torture have, IIRC, mentioned that all aspects of the interrogation where supervised by medical doctors and psychologists and the Rorshach and Awe article mentions Mitchell as being a part of or attached to the CIA group that went to Thailand.

  17. Mary says:

    oops, hit send too fast.

    That’s why I thought it was interesting that they are saying the psychologists were not present, when that is a bit at odds with what they tried to imply early on (don’t worry about the torture, the psychologists at hand won’t let it get out hand…) I think that there has been a lot of pushback in the community as to whether or not psychologists who particpated in that kind of interrogation should receive professional association response of some kind, so it sounded a bit like a well thought through CYA for everyone – – the psychologists involved were not “there” but only reviewed tapes. Of course, if that’s the case, then what about all the other harsh interrogations where there were no tapes? How were those supervised by psychologists who were also not present? Seems to me there is a group of psychologist, as well as field agents/interrogators, who have started a que for the CIA and Admin generated CYA efforts too.

    • bmaz says:

      Yeah, I agree with that. I dunno what these asshats did. I guess it is possible there were med drs on hand to revive him or whatever if they accidentally offed him and that the shrinks expert in torture reviewed later. Who knows. I will say this much, I don’t put any stock in the distinction on behalf of the participating shrinks between being there and reviewing later. Either way they are actively participating, aiding and abetting in the torture and ought to have their tickets yanked. I do know that it is common to have the pros look at interrogation tapes after the fact; I have hired them for that duty before and I know the state does as well.

  18. Sedgequill says:

    So where were the interrogation recordings reviewed? What’s easier and safer, flying agency officers and hired experts to Thailand; or, flying the original recording media to a convenient location; or, electronically transmitting the recordings as digital information to a CIA facility, most likely in the USA? There are time, expense, and scheduling to consider, and planes can crash.

    What happened to the original recording media, be they tapes or otherwise, is very important, as are official statements made on the subject, and there should be unrelenting efforts to learn the facts. But the recordings as digital information are a larger subject. If they now exist or have existed as digital information somewhere, most likely as encrypted files, the facts concerning them should be pursued at the same time and with as much determination.

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