Jose Rodriguez appears to have anticipated being scapegoated:  he’s hired Bob Bennett to represent him.  Larry Johnson has some great background on the various legal and political opinions that Rodriguez likely sought.  And how he most likely took out an insurance policy on liability, having been burned by an attempt by prior implicated politicos to scapegoat him and others in the past.   Jeralyn has additional thoughts on this as well.

As Jeralyn says, there is an oversight hearing scheduled for the House Intel Committee on Jan. 16th.  I heartily concur with emptywheel that any immunity deal from Congress for Rodriguez be very, very carefully considered and crafted to minimize legal ramifications.  (emptywheel has been all over this issue from day one — if you’ve missed her superb coverage, I highly recommend reading through all of it.) 

At the same time, though, what Marty points out here is a series of questions that deserve full and complete answers:

I urge you to read the entire report from Phil Zelikow (PDF), and ask yourself whether the concerted effort by countless government officials, up to and including Alberto Gonzales, Donald Rumsfeld and Steve Cambone, to assiduously avoid mentioning the videotapes to the 9/11 Commission — in countless meetings and in response to numerous requests — when obviously those videos would have been the motherlode of the evidence that the Commission was seeking, can possibly be justified. Zelikow wonders whether this didn’t violate 18 U.S.C. 1001(a)(1) (prohibiting the knowing and willful concealment of "material facts" in an investigation by any "trick, scheme, or device"). Even if it did not, is there any scenario in which such stonewalling would not have constituted utter contempt for the Commission — bad faith at a very high and sustained level?

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson. In other words, they knew the tapes were relevant — indeed, the most relevant evidence possible — and that they would be required to produce them if only the Commission and its lawyers somewhere down the line used the word "tapes," or "recordings," or "evidence." But they failed to mention the tapes. And then . . .

. . . as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

That is to say, the CIA waited for a window in which there (arguably) were no pending investigations in which the evidence would be relevant, and then pounced on the opportunity — the potential gap in criminal law coverage — to eliminate the evidence. Convenient, isn’t it, that there were no extant orders from the CIA leadership, the White House, or the Justice Department, requiring retention of that evidence? Such an order finally came yesterday — far too little, too late.

Maybe it’s my prosecutorial cynicism rearing up again, but you do not get that sort of coordinated, wholesale skating deliberately around a topic in that sort of slippery, calculated way by accident.  Especially not over an entire spectrum of witnesses.  Who prepped the witnesses on behalf of the Bush Administration? David Addington has a history of a strong hand in this sort of thing — was he involved in witness prep?  Who advised all of these disperate Administration personnel, both past and present members at that point, on what not to say? And how not to say it — or allude to it in any way? 

That sort of coordinated ommission smacks of collusion, deliberately staked out and eminating from the same belief that to do otherwise would lead to exposure of bad acts.  And that raises the specter of conspiracy, obstruction of justice, lying to federal investigators, and a whole host of other related potential cover-up offenses.  More on this from Jonathan Turley via CNN and Raw Story. 

CYA at the highest levels, especially across such a broad spectrum of witnesses, takes a lot of coordination and a high level of motivation to keep one’s mouth shut, just on the "prisoner’s dilemma" model of analysis alone.  Which takes us straight to Dick Cheney’s doorstep, doesn’t it?  Is it me, or does this scream of his behind-the-scenes ass-covering machinations with the enforcer’s hand of Addington behind the wheel? 

The above YouTube is another from FRONTLINE/World and Stephen’s Grey’s Extraordinary Rendition, this one with former FBI agent Jack Cloonan.  And for even more on US torture policy questions, see this additional material from Frontline’s The Torture Question.  I have a feeling there are a lot more shoes to drop on this…


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  4. Tortured to Death: In Afghanistan, Brutal Treatment Far from “Rogue” Action
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