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How Much Influence Does CIA Have Over DOJ?

Jose Rodriguez will not face charges for destroying torture tapes. Why? (CIA photo)

Now that the statute of limitations on Jose Rodriguez’s destruction of the torture videotapes has passed, it seems appropriate to ask how it came to be that what was such a slam-dunk case of obstruction of justice, which John Durham has been investigating since January 2, 2008, never resulted in criminal charges.  Unexpectedly, while reading Bob Woodward’s recent book “Obama’s Wars”, one possibility suggested itself to me.  In the early portions of the book, Woodward describes tension between the Obama transition team and Michael Hayden, who was still Director of the CIA.  After stalling for several weeks during which Hayden became increasingly sullen, Team Obama finally scheduled a meeting between Obama and Hayden.   However,  Obama was thrown off-balance for the meeting by the announcement just before it started that Rod Blagojevich had been arrested by the FBI.  Woodward’s description of the meeting shows Hayden continuing to keep Obama off-balance as he pressed the CIA’s view and strongly argued against torture prosecutions.  Remarkably, Obama’s famous “look forward, not backwards” statement about prosecutions for torture was almost exactly one month after the December 9 meeting,  airing on January 11, 2009.  That sequence of events prompted me to wonder just how much influence the CIA has over the Department of Justice.

Woodward describes Hayden’s response to Obama’s silence during the transition period, attributing quotes to Hayden such as “I’m in absolute limbo.  No one’s talking.”  Woodward also added, on page 49, that “weeks of silence had passed.”  Notably, this silence followed on an earlier incident in June, 2008, when Obama scheduled and then canceled a meeting with Hayden.  With that as background, here are a few snippets from pages 50-51:

On the morning of Tuesday, December 9, Hayden and McConnell were in Chicago, ready to have the president-elect focus for two hours on the CIA’s covert actions.  A somewhat astonished and distracted Obama greeted them.

“They just arrested the governor for trying to sell my seat,” he said.  The FBI had taken Illinois Governor Rod Blagojevich into custody that morning after wiretaps showed he was asking various politicians for money in exchange for being appointed to the Senate seat Obama had resigned.

/snip/

Hayden sat directly across from Obama at a table so narrow that they were uncomfortably close to each other.  His bald head was about 30 inches from the president-elect’s face. . . .

/snip/

Hayden jumped at this opening, practically brushing McConnell aside, several from the Obama camp noticed.  This was his opportunity and he wanted to create what he called an “oh, shit moment” to prove how grave the threats were and to show how seriously the CIA was taking them.”

From Woodward’s narrative, the “threat” that Hayden was communicating to Obama was the threat of international terrorists.  However, I was struck by how neatly the Blogojevich arrest played into Hayden’s strategy of wanting Obama off-balance and thinking “oh, shit” throughout the meeting.  Whether it was true or not, did Hayden hint to Obama that his team had something to do with the timing of Blago’s arrest?  Strengthening that argument is the fact that most of the charges for which he was arrested have since resulted in a hung jury, suggesting that the arrest was rushed and ill-prepared.

With the thought of potential CIA influence at DOJ, it is very interesting to re-visit a series of posts from Marcy Wheeler from early March of this year, discussing a number of documents that somehow went missing from a Sensitive Compartmented Information Facility (SCIF):

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

So, documents relating to the torture tape destruction somehow went “missing” from a DOJ SCIF, and in an earlier post in this series, Marcy sees a case for CIA involvement in the documents disappearing:

And indeed, the redacted name in the OPR Report seems to be a lawyer at CIA, if not Rizzo’s office. So it’s possible that CIA thought better of sending over to DOJ a document labeling these interrogation techniques as torture. But given the way CIA once had, for a period in 2007, unfettered control of the documents in question, we may never know whether it got sent over to DOJ.

Assembling the information from these various sources certainly makes it look as though the CIA has known all along that it faced serious consequences for its actions in torture and in the destruction of the videotapes documenting it. They may well have removed documents that should have been subject to the highest level of classification in the government’s document classifying scheme. Were they also able to accelerate the arrest of a sitting governor for trying to sell the president-elect’s Senate seat, so that the president-elect would be thrown off balance when he finally met with the CIA Director?

If we are to go all-in on this conspiracy theory, then the Regent University grads populating DOJ with incompetence then become wonderful shiny objects to deflect our attention from the real problems within DOJ. Oh, and just to make your skin crawl a bit more, here is a snippet from Jeremy Scahill linking Regent and CIA:

As with Blackwater’s founding, Erik Prince would once again provide the medium for another’s idea. This time, it was the vision of former CIA operative Jamie Smith. Smith had been recruited by Al Clark to teach weapons classes while he was a law student at Regent University, “America’s preeminent Christian university,” in Virginia Beach, not far from Blackwater.

We probably will never know all of the reasons why Rodriguez was not charged for the torture tape destruction when the evidence was so clear that he was guilty of this crime. Although the case is far from proven, significant influence by the CIA over the Justice Department and possibly even the President is one factor that should at least be considered.

Update: And here is NPR, providing the first semi-confirmation that Rodriguez will skate:

No one will face criminal charges for destroying CIA videotapes that depicted interrogation of terrorism detainees during President George W. Bush’s administration, NPR has learned.

Two sources close to the investigation say a federal prosecutor has concluded there isn’t enough evidence to bring an indictment. And the statute of limitations on criminal law covering the tapes’ November 2005 destruction expired this week, making future prosecution impossible.

Cowards.  Why couldn’t DOJ be the ones to announce that they are too afraid of CIA to charge Rodriguez?

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Jim White

Jim White

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