Why Did Rodriguez Get Away with Destroying the Torture Tapes – and What Happened to the Rule of Law?

Yesterday, Andrew Sullivan asked in his column in the Daily Beast, “Why Did Rodriguez Destroy The Torture Tapes?” It was good to see someone call out that aspect of Rodriguez’s – and the CIA’s – illegality. Sullivan’s is an important question that Rodriguez answered in the shallow, self-congratulatory manner exhibited in the rest of the disturbing CBS 60 Minutes interview. Sullivan’s response to Rodriguez’s claims is well worth a read.

A question that Sullivan does not ask, nor has any other journalist to our knowledge, is “Why did Rodriguez get away with destroying the torture tapes?” When OpenTheGovernment.org Executive Director Patrice McDermott received the 2011 James Madison Award from the American Library Association, she devoted her acceptance remarks to the outrage of Rodriguez’s destruction of the tapes – despite a court order to preserve them – and the unwillingness of the Justice Department to hold him accountable.

The sequence of events is clear: Jose Rodriguez violated the Federal Records Act and denied the public the right to understand and debate what the federal government is doing in its name, and to hold the government accountable for its action; the Holder Department of Justice decided to look the other way and give impunity to the CIA.

To recount, the video recordings were made in 2002, while the CIA was interrogating and torturing two alleged high-level al Qaeda figures at a secret Thailand prison. In 2003, the ACLU filed a Freedom of Information Act case to force disclosure of the government’s secret interrogation programs. In 2004, the trial court issued an order directing the US government to either turn over or preserve all documents that might respond to the lawsuit, which obviously encompassed the video recordings.

On November 3, 2005, United States District Judge Leonie Brinkema, then presiding over the conspiracy case against alleged 9/11 co-conspirator Zacarias Moussaoui, asked government lawyers about recordings of interrogations of high level al Qaeda members.

On the morning of November 9, 2005, the ninety-two video recordings were removed from a safe in Thailand and destroyed over a three-and-a-half hour period — at the direction of Mr. Rodriguez. On November 14, 2005, five days after the destruction of the tapes, the government responded to the court that no recordings existed.

The destruction of the videos also followed closely on a November 2, 2005 Washington Post report disclosing the CIA interrogation program overseas. Subsequent articles detailed techniques used, and on November 18, ABC News reported for the first time that CIA interrogators used water-boarding. This sort of story must have been on Mr. Rodriguez’s mind when he ordered the destruction. According to an internal CIA email obtained by the ACLU in 2010, he ordered the tapes destroyed because “out of context, they would make us look terrible; it would be ‘devastating’ to us.”

In March 2009, the CIA acknowledged it destroyed the tapes. On November 9, 2010, the special prosecutor, John Durham, announced he would not pursue criminal charges for the destruction of the interrogation videotapes.

Both the President’s January 21, 2009 memorandum on the FOIA and Attorney General Holder’s guidelines told heads of executive departments and agencies that the government should “not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” CIA’s fears were neither speculative nor abstract; they were indeed correct. But they did not just ‘not disclose’; they destroyed the records — and the record of illegal actions. With impunity.

As Dr. McDermott said at her award ceremony, “Where does this leave us as a country built on the rule of law? If we cannot reliably trust our government to not only preserve records but also to prevent the destruction of the records of its actions, what does accountability mean?”

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