*Cross-posted from
The Huffington Post
That's what the White House press secretary Dana Perino said concerning the New York Times' reports about White House involvement in the decision to destroy tapes of CIA interrogations.
What was "pernicious and troubling"? Not the decision to destroy them (which almost certainly violated
criminal statutes barring obstruction of justice). Not the fact that
senior White House officials, including former White House counsels
Alberto Gonzales and Harriet Miers, had been involved in debates about
the tapes' destruction. And surely not the fact that the CIA had
flouted both federal laws that criminalize torture in the course of the
taped interrogations.
No, the administration is up in arms that New York Times
suggested that the White House had been "misleading" in its past
statement on the tapes. As the White House notes, it had made no public
comment on the matter, and the Times' sources were anonymous. But these sources did acknowledge Ms. Miers' role, and did not point to the part Mr. Gonzales and other senior officials had played. The Times
didn't hide where it got its information. To the contrary, it was the
first leaks about White House involvement in the tapes' destruction
that were incomplete and hence misleading.
But the administration's feigned indignation, while farcical and
disingenuous, should not distract from the larger question: The need
for a thorough investigation into not only who decided to destroy the
CIA tapes, but also why and how this decision was taken. This
investigation can only be effectively conducted by a special counsel,
who, while appointed by the Attorney General, has critical independence
from political control. The last special counsel, Patrick Fitzgerald,
showed that it was possible to conduct a thorough investigation without
it turning it into a witch-hunt of the kind familiar from the Clinton
years. As the evidence of high-level involvement mounts, there is no
cause for delay.
A special counsel is needed because there remains real uncertainty
as to why the CIA would be so worried into blatant violation of the
law, and why there was "vigorous sentiment" in the White House to
destroy the tapes. As I've explained elsewhere,
the reasons for the tapes' destruction that General Michael Hayden has
given are facially implausible. Yet CIA officials risked obstruction of
justice to eliminate the tapes. And the White House privately urged
their destruction while assiduously declining to order their
preservation (plausible deniabilty, anyone?). And all to what end?
Emily Bazelon and Dahlia Lithwick, in a typically perceptive article,
have suggested that the tapes were destroyed because their release
would have put an end to "all sorts of fuzziness about what is and
isn't torture and whether it is or isn't happening." If the tapes had
been public, they suggest, Michael Mukasey could not have gotten away
with obfuscating on water-boarding. And surely Brigadier General Thomas
Hartman, the legal advisor for the Guantánamo military commissions,
could not have insouciantly suggested that evidence from water-boarding could be "reliable and probative," and thus used in the forthcoming commission trials.
There is, without question, something to this: Consider the story of
Acting Assistant Attorney General Daniel Levin, who was asked to
deliver a legal opinion on whether water-boarding constituted torture.
Showing what can only be termed exceptional devotion to duty, Levin had
himself water-boarded
so he could judge for himself. Unsurprisingly, he concluded afterwards
that water boarding "could be illegal torture unless performed in a
highly limited way and with close supervision."
But would the fuzziness really have dropped away? After all, the
idea of enhanced interrogation measures hardly died when the Abu Ghraib
pictures were released, when though those pictures pictured some of the
measures allegedly still used by the CIA. Indeed, there has been no
public outcry about stress positions, which have been part of the "enhanced interrogation measures."
Further, as Michael Massing points out in the New York Review of Books, there is ample public evidence of the staggering and horrific human cost
of the Iraq war. Literally tens of thousands of innocents have died in
horrific circumstances. Yet, as Massing notes, the public barely blinks
an eye.
Public outrage, then, doesn't seem a sufficiently bad result to
trigger flagrant law-violation. Could it be instead that these tapes
not only showed illegal, criminal interrogation methods, but that the
statements captured on film may have contradicted the White House's
factual claims about other individual detainees or other putative
successes in the war on terror? I.e., that it proved that senior
Administration officials have in fact lied to the public? Could it be
that the tapes have a broader political resonance beyond "merely"
showing illegality, a resonance that shook even the White House? These
are mere suppositions, empty postulates for now. It is impossible to
know for certain without a thorough investigation.
At present, the administration is facing investigations from two
directions. Both are important and necessary. Neither provides a
sufficient remedy.
First, a federal judge in Washington, DC, Judge Henry Kennedy, has ordered a hearing
on Friday on the tapes' destruction. In July 2005, Kennedy ordered the
preservation of interrogation tapes. The tapes' destruction is clearly
grounds for a finding of contempt of court -- and provides important
new evidence that the Guantanamo detainees have indeed been railroaded.
But Judge Kennedy's inquiry into the tapes destruction is
necessarily limited: He can only look at the tapes to the extent they
affect the case before him. (Another case filed on behalf of Abu
Zubaydah himself might lead to a broader inquiry, but that faces
substantial threshold delays and difficulties. But as we know from the
fraught trial of Oliver North in the late 1980s, it is very difficult
for courts to get at systemic problems of law violation within the
federal government. Individual litigation is simply too narrow a tool
to excavate systemic wrongdoing.
Second, House Intelligence Chairman Silvestre Reyes (D-TX) has indicated that he intends to subpoena the CIA officials involved.
Reyes is rightly unimpressed by Attorney General Mukasey's argument
that congressional investigations would interfere with the internal
investigation: During Watergate, Whitewater, and Iran-Contra,
congressional and internal investigations proceeded in parallel with
minimal problems. There is simply no cause for Congress to stay its
hand while the Justice Department acts.
Indeed, there is every reason to be skeptical of the present Justice
Department investigations. After all, the Justice Department apparently
knew of the CIA's interest in destroying the tapes--and yet did nothing
when the tapes were destroyed in flagrant violation of Judge Kennedy's
order (and in violation of an order from Judge Alvin Hellerstein in New
York in a Freedom of Information Act suit filed by the ACLU). News that
former Attorney General Gonzales was involved in deliberations about
the tapes casts another cloud over the credibility of Justice
Department investigations.
Yet congressional investigations are likely to prove insufficient to
get to the bottom of the tapes' destruction. This White House has
consistently played hardball through aggressive use of "executive
privilege" to block congressional inquiries, for instance into the
firing of the U.S. Attorneys. There is every reason to expect that the
White House will stall and run the clock on congressional
investigations by delaying resolution past the 2008 elections.
All of these inquiries are important, but they must be supplemented
within a speedy criminal investigation conducted by a reputable and
independent prosecutor. Justice Department regulations allow the
appointment of such a special counsel in cases such as this one, where
the entire department operates under a cloud. True, that makes Mukasey
get to decide who will investigate, but his decision will be public and
thus subject to public criticism and congressional pressure. As with
the Valerie Plame investigation, it would be very hard to appoint a
crony and get away with it.
In a funny way, the White House has shown the way. Yes indeed,
what's unfurling with the story of the CIA tapes in "pernicious and
troubling": It is showing a deep malaise in the executive branch, an
apparent disregard for the law, and manifest contempt for the public.
It is long past time all that was snuffed out--and a special counsel is
the best tool for the job.
Today, a federal judge in Miami sentenced
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