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A new lengthy article in this morning's New York Times purports to set forth "new details about why the [CIA interrogation] tapes were made and then eliminated." Written by Scott Shane and Mark Mazzetti (who broke the original story), what the article primarily does is rely on anonymous sources to assign principal responsibility for the tapes' destruction to mid-level CIA official Jose Rodriguez. But in doing so, the article identifies, in passing, the critical question that remains unanswered: what was the involvement of George Bush and Dick Cheney in the videos' destruction?
Scrutiny of the C.I.A.'s secret detention program kept building. Later in 2003, the agency's inspector general, John L. Helgerson, began investigating the program, and some insiders believed the inquiry might end with criminal charges for abusive interrogations.
Mr. Helgerson completed his investigation of interrogations in April 2004, according to one person briefed on the still-secret report, which concluded that some of the C.I.A.'s techniques appeared to constitute cruel, inhuman and degrading treatment under the international Convention Against Torture. Current and former officials said the report did not explicitly state that the methods were torture.
A month later, as the administration reeled from the Abu Ghraib disclosures, Mr. Muller, the agency general counsel, met to discuss the report with three senior lawyers at the White House: Alberto R. Gonzales, the White House counsel; David S. Addington, legal adviser for Vice President Dick Cheney; and John B. Bellinger III, the top lawyer at the National Security Council.
The interrogation tapes were discussed at the meeting, and one Bush administration official said that, according to notes of the discussion, Mr. Bellinger advised the C.I.A. against destroying the tapes. The positions Mr. Gonzales and Mr. Addington took are unknown. One person familiar with the discussion said that in light of concerns raised in the inspector general's report that agency officers could be legally liable for harsh interrogations, there was a view at the time among some administration lawyers that the tapes should be preserved.
Shane and Mazetti previously reported that "several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed." In that article, they quoted one senior intelligence official "with direct knowledge of the matter [who] said there had been 'vigorous sentiment' among some top White House officials to destroy the tapes." The White House has simply refused to say whether they were behind the decision.
Just consider how significant that question is, and how striking it is that it remains unanswered. By the time Addington and Gonzales were discussing this matter, it was well known -- obvious -- that those interrogations tapes were critically relevant to a number of judicial proceedings and government investigations, including The 9/11 Commission's. It is thus highly likely, to put it mildly, that any decision to destroy that evidence would constitute the crime of obstruction of justice, the same federal felony for which Lewis Libby has now (in a different matter) been convicted.
And here are the two top legal aides to the President and the Vice President participating in a meeting where the destruction of this vital evidence was expressly considered, yet we do not know what it is that they said. Did they advise that the tapes be destroyed of give implicit permission for it? If so, it very likely means that Bush and/or Cheney (and certainly their top aides) committed serious felonies.
But does anyone really believe that we're going to find out the answers to those questions any time soon? And even if we did find out the answers, and even if they were incriminating, does anyone believe that there would ever be any consequences, any accountability, for this wrongdoing by anyone above a mid-level position of responsibility, such as Rodriguez?
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In case after case, our political establishment has adopted the "principle" that our most powerful actors are immune from the rule of law. And they've adopted the enabling supplemental "principle" that any information which our political leaders want to keep suppressed is -- by definition, for that reason alone -- information that is "classified" and should not be disclosed.
The instruments used to secure these prerogatives are numerous and growing. Slate's Dahlia Lithwick this week summarized the Bush administration's 10 most egregious legal inventions to enable lawbreaking, including the "states secrets privilege" which has now "has ballooned into a doctrine of blanket immunity for any conduct the administration wishes to hide" and the claim that "everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege." All of these developments have a common strain, a shared objective: ensuring that our highest political officials and our most powerful corporations are beyond the reach of the law.
Thus, our establishment believes that any information that would shed light on whether our most powerful actors have broken the law is information that shouldn't be disclosed. In those accidental cases when -- via unauthorized leaks -- information is disclosed that demonstrates that crimes have been committed, our establishment bands together to insist that nothing be done, that there is no need to investigate or hold anyone accountable, and that the only real wrongdoing is by those "the leakers" who disclosed the lawbreaking.
This is the same pattern seen over and over: leakers reveal that Bush broke the law for years by spying on Americans without the warrants required by law, and every investigation -- legislative and judicial -- is successfully blocked, and Congress then moves to legalize the lawbreaking. The top aide to Bush and Cheney, Lewis Libby, is found unanimously by a 12-person jury to have lied deliberately with the intent of blocking an FBI and Grand Jury investigation into illegal leaks and is sentenced by a conservative judge to prison, yet is protected from jail time by the President while our media and political establishment cheer almost unanimously.
Our largest telecommunication corporations reap huge profits by brazenly violating numerous, long-standing federal laws (.pdf) for years by enabling government access to our communications without any judicial approval, and our political establishment bands together to demand that they be protected from any consequences and that any efforts to uncover what happened be squelched. Our government implements a secret torture regime that violates numerous laws and treaties and Congress acts to legalize it and provide retroactive immunity to the lawbreakers. Congress subpoenas numerous officials to find out why 9 federal prosecutors were fired and, when the subpoenas are literally ignored, nothing happens.
And now, our government just destroys evidence crucial both to all sorts of court proceedings and a comprehensive investigation into the worst attack on U.S. soil in our history -- part and parcel of its general pattern of destroying or "losing" key evidence -- and the Honorable, Independent Attorney General tells both the legislative and judicial branches that they have no right even to investigate. And although we know for a fact that the top aides to both Bush and Cheney were involved in discussions of whether the tapes should be destroyed, we have no idea what they said and are unlikely ever to know, and even if we did find out, it's impossible to envision anything happening as a result.
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And thus we have a perfect oligarchical system in which, literally, our most powerful and well-connected elite are free to break the law with impunity, exempt from any consequences. While exempting themselves, these same figures impose increasingly Draconian "law and order" solutions on the masses to ensure that even small infractions of the law prompt vigorous prosecution and inflexible, lengthy prison terms.
As Matt Stoller recently noted in an excellent post on the bipartisan orthodoxies that are untouchable in political debates, "there are 1 million people put in jail for doing what Barack Obama, Bill Clinton, and George Bush have done" (buying and consuming illegal drugs) and "2 million people are in prison in America, by far the highest total of any other country in the world." It's almost impossible for the non-rich to defend themselves effectively against government accusations of criminality, and judges have increasingly less sentencing discretion to avoid imposing harsh jail terms. Punishment for crimes is for the masses only, not for members in good standing of our political and corporate establishment.
Where our political elite break the law, our leading media stars and pundits fulfill their central purpose by dutifully arguing that establishment figures who have broken the law have done nothing wrong and deserve protection, even our gratitude, when they do so. In the view of our establishment, even mere civil liability -- never mind criminal punishment -- is deeply unfair when imposed on lawbreaking corporations, as we see in the "debate" over telecom immunity.
This same warped principle is also expressed in how our establishment scorns the work John Edwards did in representing maimed or dead individuals against the corporations which, through recklessness or negligence, destroyed their lives. From a letter from Theodore Frank of the American Enterprise Institute to the New York Times today (h/t Jay Diamond):
There is a critical distinction between Mitt Romney's and John Edwards's wealth. Mr. Romney, as a businessman, made investments that created wealth. Mr. Edwards, as a trial lawyer, made his money through lawsuits that merely took from one pocket and gave to another, and probably destroyed wealth in the process. (Mr. Edwards's multimillion-dollar medical malpractice verdicts almost certainly hurt the quality of health care in North Carolina.)
Little wonder that Mr. Romney understands that to improve the economy, one needs to expand the pie, while Mr. Edwards's policy proposals focus entirely on the redistribution of the existing pie without thought for the future adverse consequences to the size of the pie.
Anything that results in accountability for our largest corporations is inherently bad, even when they're found under our legal system to have broken the law or acted recklessly. Thus, John Edwards' self-made wealth is deeply dishonorable and shameful because it came at the expense of our largest corporations and on behalf of the poor and dirty masses, while Mitt Romeny's wealth, spawned by his CEO-father's connections, is to be honored and praised because it benefited our establishment and was on behalf of our glorious elite.
Naturally, our establishment sees itself as Good, and thus, whatever their most powerful leaders do -- even when illegal -- is never really bad. It can't be, because they do it. Hence, George Bush's and Lewis Libby's felonies aren't really like the felonies of the "drug dealers" and the other street dirt. Neither the Law nor Jail are for the clean, good, upstanding establishment members, so sayeth Jay Rockefeller and Fred Hiatt and Joe Klein and David Ignatius and the rest.
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Most revealing of all, anyone who insists that this should be different -- anyone who believes that our highest political officials and largest corporations should be held accountable when they break the law -- is a shrill "partisan," bent on vengeance and Guilty of obstructionism: trying to prevent the political establishment from operating in a harmonious, bipartisan manner to do their Important Work. At least under the Bush presidency, investigations into wrongdoing are bad and disruptive and mean-spirited, and calls for consequences for illegal behavior are shrill and nasty.
Digby yesterday analyzed the sudden emergence of the Bipartisan Centrism fetishists -- the David Borens and Sam Nunns and David Broders and other old System Guardians who are threatening to back the third-party candidacy of Michael Bloomberg unless they quickly see more "bipartisanship." As Digby notes -- and one should read her whole post -- these Harmony Mavens were nowhere to be found during the last six years when our government was fully controlled by a one-party machine that did what it wanted without the slightest consequence.
Only now that the prospect has emerged -- however small and remote it is -- that there appears to be some rumblings of dissatisfaction among the masses over the deep corruption pervading every pore of our establishment are they now decreeing that we need Harmony and Bipartisan Cooperation:
I wrote about it right after the 2006 election --- as soon as the Republicans lost power, I knew the gasbags would insist that it's time to let bygones be bygones and meet the Republicans halfway in the spirit of a new beginning. GOP politicians have driven the debt sky-high and altered the government so as to be nearly unrecognizable, so logically the Democrats need to extend the hand of conciliation and move to meet them in the middle --- the middle now being so far right, it isn't even fully visible anymore.
Digby's right that this is an effort to enforce establishment-protecting ideological orthodoxies. The campaigns of Edwards, Mike Hucakbee and Ron Paul each, in their own ways, signify that there is some intense unrest and deep dissatisfaction with our political establishment, and this has to be quashed by the concealing device known as "bipartisanship." But it also an attempt to ensure that nothing of any significance is exposed, that none of the lawbreaking and corruption of the last six years -- which they all enabled and cheered on -- sees the light of day.
There is a mildly increased desperation that is palpable among our political and media elites to protect and defend their system. The extent of their wrongdoing over the last several years -- political, legal and economic -- is so extreme that the potential for upheaval in the event of accountability is extreme as well. Their chief weapon to protect those privileges is immunity from the rule of law, and most of our political controversies -- over presidential power and state secrets and executive privilege and torture and eavesdropping and these CIA videos -- really share the same root: the effort of the establishment to maintain their immunity from impropriety-exposing legal proceedings and, thus, from political consequences.
Just as the warantless eavesropping revelations did, the CIA video scandal presents an extremely clear and straightforward case of serious lawbreaking by our highest government officials. It's far less complex and far more serious than the scandals that brought down Richard Nixon. That a rational person would be highly skeptical about the prospects that we will find out what happened, let alone that there will be consequences for any of it, is pretty compelling evidence of the kind of country we are becoming.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.