On December 7, 2007, The New York Times reported that the CIA “in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about its secret detention program.” Documents obtained when the ACLU asked a federal judge to hold the CIA in contempt of court — for destruction of evidence which that judge had ordered be produced — subsequently revealed that the agency had actually “destroyed 92 videotapes of terror-suspect interrogations.” The videotapes recorded interrogations of detainees who were waterboarded and otherwise tortured. The original NYT article, by Mark Mazzetti, reported that “the decision to destroy the tapes was made by Jose A. Rodriguez Jr., who was the head of the Directorate of Operations, the agency’s clandestine service” (the NYT later reported that some White House officials had participated in the deliberations and even advocated the tapes’ destruction).
Destruction of these tapes was so controversial because it seemed so obviously illegal. At the time the destruction order was issued, numerous federal courts — as well as the 9/11 Commission — had ordered the U.S. Government to preserve and disclose all evidence relating to interrogations of Al Qaeda and 9/11 suspects. Purposely destroying evidence relevant to legal proceedings is called “obstruction of justice.” Destroying evidence which courts and binding tribunals (such as the 9/11 Commission) have ordered to be preserved is called “contempt of court.” There are many people who have been harshly punished, including some sitting right now in prison, for committing those crimes in far less flagrant ways than was done here. In fact, so glaring was the lawbreaking that the co-Chairmen of the 9/11 Commission — the mild-mannered, consummate establishmentarians Lee Hamilton and Thomas Kean — wrote a New York Times Op-Ed pointedly accusing the CIA of “obstruction” (“Those who knew about those videotapes — and did not tell us about them — obstructed our investigation”).
In 2008, Attorney General Michael Mukasey appointed a Special Prosecutor to determine if criminal charges should be filed. When I was writing my last book about the legal immunity bestowed on political elites even for egregious crimes, I actually expected that Rodriguez would be indicted and that his indictment would be an exception to the rule of elite immunity which I was documenting. As I wrote in my book, “even our political class, I thought, couldn’t allow lawbreaking this brazen to go entirely unpunished.” But I was quite wrong about that.
In November, 2010, the Obama DOJ — consistent with its steadfast shielding of Bush-era criminals from all forms of accountability — announced that the investigation would be closed without any charges being filed. Needless to say — given how subservient federal judges are to the Executive Branch in the post-9/11 era — the federal judge who had ordered the CIA to preserve and produce any such videotapes, Alvin Hellerstein, refused even to hold the CIA in contempt for deliberately disregarding his own order. Instead, Hellerstein — who, like so many federal judges, spent his whole career before joining the bench as a partner for decades in a large corporate law firm serving institutional power — reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA “should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.”
Read the full article at Salon.com