The former director of the CIA's National Clandestine Service told Reuters on Monday that he ordered the tapes destroyed to protect his colleagues from possible retaliation by al Qaeda.
Prosecute Jose Rodriguez For Destroying CIA Torture Tapes
December 11, 2014

Since the release of the Senate Torture report, many of those responsible for the acts described in the report have been taking to the airwaves to defend themselves. Jose Rodriguez, the former CIA Clandestine Service chief is one of those men, and in a CBS interview said that enhanced interrogation saved lives.

"We knew we needed the information. We needed to find a new way to do this and the rest is history," Rodriguez said.

It seems unconscionable that nobody has been brought up on chargers for the torture of prisoners by the CIA, but that's been the reality so far. I have a suggestion, let's start with Jose Rodriguez, who destroyed at least ninety-two video tapes of enhanced interrogations of Khalid Sheikh Mohammed and Abu Zubaydah without any authority to do so.

Jose Rodriguez said it took a "few hours" to destroy 92 videotapes showing his CIA colleagues using harsh interrogation techniques - including waterboarding - on al Qaeda leaders such as September 11 mastermind Khalid Sheikh Mohammed.

But the former director of the CIA's National Clandestine Service told Reuters on Monday that he ordered the tapes destroyed to protect his colleagues from possible retaliation by al Qaeda. (Despite a court order ordering the Bush administration not to destroy evidence.)

The tapes of interrogations at a CIA "black site" included images of waterboarding - a form of simulated drowning - on Mohammed, Abd al Rahim al Nashiri and Abu Zubaydah, three al Qaeda leaders now held at the U.S. prison in Guantanamo Bay. Rodriguez said he was afraid the material would be leaked.

His reason for doing so was that there were faces of CIA members involved in those interrogations visible and he wanted to protect them from retaliation, but that reason doesn't stand the smell test. We've had the capability to disguise all those involved in the video editing bay for many years and if Rodriguez really feels they did nothing wrong--he should have proudly showed those tapes to Congress as proof that torture was not used.

John Rizzo, a former lawyer for the CIA wrote in his book The Company Man, Thirty Years of Controversy and Crisis in the CIA, covers Rodriguez's actions extensively:

Jose Rodriguez, the chief of the CIA’s Counterterroist Center, began lobbying Rizzo, the acting general counsel of the CIA at the time, for legal permission to destroy the tapes immediately, thereby protect the agents’ identities from being leaked to the public. Rizzo says he refused.

“Although I sympathized with Jose’s motivations, I thought destroying the tapes was fraught with enormous risk for the Agency,” he explains. “Any minimally competent attorney would instinctively react the same way if his client were to come to him seeking the go-ahead to destroy sensitive materials in his possession, even if the client was not under any cloud of suspicion or investigation. Someone does something like that when he has something to hide.”

His defense for enhanced interrogations is that they followed the newly written guidelines, but Rizzo asked this:

“But … I made sure to ask him about two things he hadn’t covered in his written findings,” Rizzo continues. “Were the faces of the interrogators visible? ‘Clear as day, and over and over again,’ he replied … And what about Zubaydah? ‘Up close and personal. Some crying. Some gagging. Just very unpleasant to look at.'”

Rizzo recalls thinking, “No wonder Jose wants them destroyed …” But when Rizzo continued to advise him against obliterating any trace of the tapes, he writes, Jose went “behind my back and destroy[ed] them anyway in 2005.”

“In my thirty-four-year career at CIA, I never felt as upset and betrayed as I did [the morning it was revealed that the tapes had been destroyed],” Rizzo says. “I am convinced [Rodriguez] did it because he realized, after three years of relentless pleas, that he was never going to get the go-ahead to destroy the tapes. Not from me, certainly.”

Destroying those tapes erased all evidence that was on the record and I say again, if he was proud of what they were doing, why not show it to those who at least have top secret clearances? It reminds me when Roger Goodell destroyed the New England Patriots SpyGate tapes. Just like Hernandez, Coach Bill Belicheck said he thought the taping were legal, but they were not. Why destroy the evidence?

And remember, obeying orders is not a defense against unspeakable crimes.

In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.

Seems like pretty good motivation to obey any order you're given, right? Nope. These articles require the obedience of LAWFULorders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal.

"I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II). The defense didn't work for them, nor has it worked in hundreds of cases since.

A study in 2012 showed that "those who carry out atrocities, like Nazi concentration camp guards, weren't just following orders but actively enjoyed their work."

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