Did CIA Lawyers OK Torture Tape Destruction?

According to a New York Times report, CIA lawyers played an integral role in approving the destruction of videotapes depicting the US interrogations and waterboardings of key Al Quaeda prisoners:

WASHINGTON, Dec. 10 — Lawyers within the clandestine branch of the Central Intelligence Agency gave written approval in advance to the destruction in 2005 of hundreds of hours of videotapes documenting interrogations of two lieutenants from Al Qaeda, according to a former senior intelligence official with direct knowledge of the episode.

The involvement of agency lawyers in the decision making would widen the scope of the inquiries into the matter that have now begun in Congress and within the Justice Department. Any written documents are certain to be a focus of government investigators as they try to reconstruct the events leading up to the tapes’ destruction.
The former intelligence official acknowledged that there had been nearly two years of debate among government agencies about what to do with the tapes, and that lawyers within the White House and the Justice Department had in 2003 advised against a plan to destroy them. But the official said that C.I.A. officials had continued to press the White House for a firm decision, and that the C.I.A. was never given a direct order not to destroy the tapes.

“They never told us, ‘Hell, no,’” he said. “If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.”

... In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.

It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But the former official said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.

...Gen. Michael V. Hayden, the C.I.A. director, is scheduled to appear before a closed session of the Senate Intelligence Committee on Tuesday to answer questions about the tapes’ destruction. He has defended the action as having been “done in line with the law,” but the destruction has prompted sharp criticism from Republicans and Democrats in Congress.

It is no secret that there are rogue lawyers within the Bush Administration. They have regularly provided specious legal opinions that stretch credulity. They have given the sheen of legal cover to the Administration in countless circumstances of Constitutional line-crossing, ancillary to the so called War on Terror.

Nonetheless, blaming the lawyers in this instance seems little more than a trial balloon that entirely misses the point. Legal advisers have never been the decision makers here.

Responsibility lies upstairs for the outlandish decisions to utilize torture and to obstruct justice by destroying videotape evidence of it.

Way upstairs.

- Garry J. Wise, Toronto

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