No Immunity, No Way, Jose

Jose Rodriguez wants the full Goodling:

Attorneys for Jose Rodriguez told Congress that the former CIA official won't testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.

Rodriguez, the former head of the CIA's National Clandestine Service, ordered the tapes destroyed in 2005. Rodriguez was scheduled to testify before the House Intelligence Committee at a Jan. 16 hearing.

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

Now, the only potential outside review was basically scuttled yesterday, as a federal judge refused to inquire into the destruction of the tapes. Which leads emptywheel to say:

So, let's see. No Rodriguez testimony before Congress (hopefully, that is ... did you know that Non CIA Rat is almost an anagram for Iran-Contra?), no Kennedy inquiry into the terror tapes. That DOJ investigation into the torture tapes is looking like a pretty good way to bury any discussion of the torture tapes for a good little while, isn't it? Maybe even long enough for Bush to start pardoning people wildly in about a year, huh?

I believe Mukasey is Albanian for "stonewall".

How Fourthbranch Works

Newsweek's Michael Isikoff has posted a fascinating interview with J.William Leonard, the head of the National Archives' Information Security Oversight Office (ISOO), which deals with classified documents from the executive branch. He was the major figure in the fight by Dick Cheney to define his office as a fourth branch of government existing outside executive branch accountability. I've been calling him "Fourthbranch" ever since (like the Taco Bell ad: "think outside the Constitution"). In the interview, Leonard details just how uniquely Cheney and his minions see their responsibilities to other government agencies.

NEWSWEEK: Explain how all this happened.

Leonard: Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us…At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to.

So how did matters escalate?

The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them.…They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office.

Who wrote the emails?

It was David Addington.

No explanation was offered?

No. It was strike this, strike that. Anyplace you saw the words, "the director of ISOO" or "ISOO" it was struck.

Here we have the Fourthbranch way. Assume the laws don't apply to you; when pressed, threaten to abolish the law or the agency that attempts to execute it. And since Cheney is not a lawyer, his appointed henchman in these matters is now David Addington. There's always one degree of separation for Fourthbranch, be it Libby or Addington or whoever. And the new firewall may get torched by the ongoing torture tape investigation.

The House Intelligence Committee has scheduled a hearing on January 16 (pdf) regarding the destruction of CIA interrogation videotapes of two al Qaeda suspects held in secret overseas prisons, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The order to destroy the tapes allegedly was given by Jose Rodriguez who at that time was head of the CIA’s clandestine service. Rodriguez, who has hired lawyer Robert Bennett to represent him, has no intention of being the scapegoat.

The TimesonLine reports Rodriguez is seeking immunity for his testimony. Who might he give up?

Four names in the White House have surfaced so far. My money is on Cheney lawyer (now his Chief of Staff) David Addington.

Reports have cited four White House and OVP staffers as having discussed the tapes with the CIA, and have gone out of their way to assure that three of them advised against destruction. Only Addington is left hanging out to dry. And of course, the CIA ignored the advice of everyone but Addington.

It's hard to understate the level to which Fourthbranch runs this government without being subject to regular government scrutiny. Just this week he's been implicated in denying a waiver to California to set their own greenhouse gas emissions targets. You can add that to the secret energy meetings, enabling the Enron energy blackouts in California in 2001, the Plame leak, official secrecy including making up a classification for his own documents, the tax cuts ("This is our due!"), war in Iraq, the looming threat of war in Iran, environmental policy, and well, everything in the Angler series.

The Office of the Vice President is a relic of the compromise that forged the Constitution, almost wholly unnecessary in the function of a 21st-century state. While it seemed a useless honorific only given meaning when a President died in office (and there are plenty of other ways to create a line of succession), it lingered because nobody could fathom anything bad arising from it.

They never met Fourthbranch.

Torture Tape Update

So after belligerently trying to shut down the House Intelligence Committee investigation over the detroyed torture tapes, and faced with imminent subpoenas which would have bipartisan support, the CIA and the Justice Department relented, offering documents and allowing the CIA's top lawyer, John Rizzo, to testify to the committee. Whether or not they'll allow Jose Rodriguez, who is the prime subject for a committee subpoena, to testify is an open question. It's a minor victory for the separation of powers, but I stress minor. And so far, based not only on the documents given to the committee but also testimony from Michael Hayden, it looks like Abu Gonzales and John Bellinger advised against destroying the tapes, adding to other accounts that Harriet Miers advised against destruction as well. Only one lawyer known to have been present at the discussions is left out: David Addington, Cheney's lawyer. It was obvious that Addington would be the figure most likely to argue for their destruction, seeing as he's bathed in the light of Fourthbranch and believes himself to be not bound by any laws, a Javier Bardem-in-No Country For Old Men kind of person, if you will.

Additionally, a CIA lawyer has put to rest Hayden's ridiculous concern that the tapes were destroyed to protect the identities of the agents involved. There are ample ways to blur out faces or obscure identities, he said, plus they were in the hands of the CIA the entire time, and "If a tape is not safe in the CIA, we’re in trouble."

The 9/11 Commission is weighing in as well, claiming that the tapes were withheld from them prior to their destruction. This is almost the harmonic convergence of Bush Administration secrecy, because so many different groups, including Congress, independent panels like the 9/11 Commission with the force of law, and even the courts have been stonewalled. In the case of the 9/11 panel, the administrators are looking to see whether the CIA violated federal law.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

What may not pan out is the court case that some thought would pry open more documents into further view.

A federal judge appeared reluctant Friday to investigate the destruction of CIA interrogation videotapes while the Justice Department is conducting its own inquiry.

U.S. District Judge Henry H. Kennedy is considering whether to delve into the matter and, if so, how deeply. The Bush administration is urging him to back off while it investigates.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked at a court hearing.

Can I answer that? Because they're hopelessly partisan and implicated in the investigation at the highest levels?

It's very unclear where all of this is going. My goal would be to see Addington forced out of the shadows.

WH Lawyers Discussed Torture Tapes, Including Abu Gonzales And David Addington!

The latest bombshell in the torture tapes case shows once again that the first explanation from the Bush Administration is never, ever the correct one.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

We knew about Harriet Miers, but the article also names John Bellinger (the senior lawyer for the NSC at the time), Alberto Gonzales and Cheney's brain David Addington. While the reporters don't exactly know what was said, they strongly imply that the White House lawyers, and by association the White House, wanted the tapes dumped in the Potomac.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, 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.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

Let me have one wild guess who wanted the tapes destroyed: Addington. He's not too interested in constraints on his own power. And Gonzales would go along with whatever his minders told him. This also means that the top official at the Justice Department was privy to discussions about the destruction of physical evidence implicating the federal government in major violations of international law, and said nothing. Because of course, he was knee-deep in it himself.

Keep in mind that the Justice Department is now the agency investigating this.

The sources in the story also throw a couple other CIA lawyers under the bus.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

This lines up perfectly with Rodriguez' defense as stated later in the article by his lawyer Robert Bennett. What it means for the purposes of the investigation is that there is even more of a paper trail than at first believed. Add it on to this known communication.

Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.

There's going to be a federal court hearing this week about the destruction of the tapes, so the timing of this article is pretty clear. As much as Mukasey wants to obstruct judicial or Congressional review over this situation, he cannot dictate the terms by which other branches of government conduct themselves, nor can he stop the drip-drip-drip of revelations that sink the White House further and further into complicity.

This is the second demonstrable lie from the Bush Administration this week, and it's only Tuesday night. Yesterday we learned that Bush knew about the Iran NIE intel months before he claimed he did. Tonight, it's that the White House was heavily involved in the discussions over whether to destroy these tapes and obstruct justice.