(Photo Illustration: Jared Rodriguez / t r u t h o u t, Adapted From: daliborlev / flickr, remuz / flickr)

One week before John Brennan assumed office as CIA director, a woman was put in charge of the CIA’s clandestine service. It was the first time in the history of the agency that a female officer was running the agency. But, according to the Washington Post, the officer was one of two CIA officers, who signed off on the destruction of torture tapes in 2005.

The Post reports the woman served in a senior position at the CIA’s Counterterrorism Center after the September 11th attacks. She was in the chain of command for the Rendition, Detention and Interrogation program (RDI).

The CIA recorded brutal interrogations of prisoners with a video camera in a secret prison in Thailand. Over ninety tapes were ultimately recorded.

When the head of the Counterterrorism Center, Jose Rodriguez, was promoted to head of the clandestine service in 2004, he took the female officer along as his chief of staff. According to former officials, the two repeatedly sought permission to have the tapes destroyed but were denied.

In 2005, instructions to get rid of the recordings went out anyway. Former officials said the order carried just two names: Rodriguez and his chief of staff.

The officer went on to hold top positions in London and New York before returning to Langley as deputy chief of the clandestine service. She became acting director on Feb. 28, when the previous head of the service, John Bennett, retired. [emphasis added]

Brennan now faces a decision over whether to keep her in the position in charge of the arm of the agency, which, as the Post describes, “sends spies overseas and carries out covert operations including running the agency’s ongoing drone campaign.”

According to the story from the Post, Brennan is seeking political cover for any decision he makes on the officer by taking the “unusual step” of having “three former CIA officials” evaluate candidates to determine whether someone else should be in charge of the clandestine service.

Although, the woman clearly engaged in obstruction of evidence, as pointed out,  the Justice Department has yet bring charges against any officers in the agency. Because the Justice Department chose not to pursue accountability, it is likely she will remain as head of the clandestine service.

The torture tapes are known to have documented the interrogations Abu Zubaydah and Abd Al-Rahim Al-Nashiri experienced. Twelve of them, according to the BBC, “covered the application of ‘enhanced interrogation techniques,’ including waterboarding.”

The tapes recorded the waterboarding of Zubaydah and showed him “vomiting and screaming.” The CIA’s top legal counsel, John Rizzo, sent a colleague to the black site to view the tapes. He found the tapes were “hard to watch,” as Zubaydah was experiencing “physical difficulties.” Rizzo had not thought waterboarding would be used as often as it was at the prison.

As early as 2002, the CIA was considering policies for destroying the tapes. But, in September 2004, a court ordered the CIA to “produce or identify all records pertaining to the treatment of prisoners in its custody in response to an ACLU lawsuit seeking information about the treatment of detainees in US custody abroad.” The order applied to the 92 torture tapes.

Rodriguez, without the approval of the agency’s top legal counsel, went ahead with the destruction in November 2005. He had been waiting for years to destroy them and believed he had the authority to engage in such an act.

“The precise date of destruction confirms that the tapes were destroyed immediately after the Washington Post reported the existence of the CIA black sites and the New York Times reported that the CIA Inspector General had questioned the legality of the agency’s torture program,” the ACLU’s Alexander Abdo wrote.

The CIA continues to hold information on the destruction of the torture tapes. Some of it involves waterboarding, which is illegal and a war crime, but courts have held the CIA does not have to provide information under the Freedom of Information Act to the ACLU because it would reveal “sources” and “methods.”

In June 2009, then-CIA director Leon Panetta wrote in a declaration there were a “small number of miscellaneous documents, which include notes of CIA employees who reviewed the 92 videotapes before they were destroyed, logbooks containing details of the interrogations and a photograph. These miscellaneous documents…contain TOP SECRET operational information concerning the interrogations, and were drafted either contemporaneously with the interrogations or with the viewing of the now-destroyed videotapes.” Panetta argued that, although Office of Legal Counsel (OLC) memoranda “analyzing the legality of specific Enhanced Interrogation Techniques (EIT)” had been declassified, the information the ACLU was seeking contained “descriptions of EITs being applied during specific overseas interrogations” and were of EITs “as applied in actual operations,” which is “qualitatively different” in nature than the “EIT descriptions in the abstract contained in the OLC memoranda.”

In August 2011, US District Court Judge Alvin Hellerstein decided not to hold the CIA in contempt for disobeying a court order and destroying the tapes.   He actually said, “I don’t think a citation of contempt will add to anything.” This granted the CIA the power to not only continue to withhold evidence that should be available to the public but also created a standard where the CIA could do anything it wants regardless of what a court demands or requests.

Federal prosecutor John Durham spent three years investigating the destruction of the tapes. Yet, in November 2010, Justice Department spokesman Matthew Miller announced, “As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes.” There would be no justice for the coverup.

UN Special Rapporteur on human rights and counterterrorism, Ben Emmerson, in a report this month stated that despite “clear repudiation” of unlawful acts carried out by the Bush-era CIA:

…[M]any of the facts remain classified, and no public official has so far been brought to justice in the United States. In August 2007 US Attorney General Eric Holder announced that the Department of Justice would not prosecute any official who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel in connection with the interrogation of terrorist suspects. In the view of the Special Rapporteur this  comes close to an assertion of the “superior orders” defence, despite its prohibition under  customary law and relevant international treaties…

He also declared, “Legitimate national security considerations do not include governmental interests and activities that constitute grave crimes under international human rights law, let alone policies that are precisely calculated to evade the operation of human rights law.”

Individuals like the officer now in charge of the CIA’s clandestine service should not receive promotions after they commit crimes. In fact, they should not be allowed to continue to operate undercover as an operative in the CIA. They should be named and shamed at least to the extent that torture apologist Jose Rodriguez has been named and shamed for his role in destroying the torture tapes. Unfortunately, President Barack Obama’s administration has decriminalized torture by choosing a policy of “looking forward, not backward,” and the only CIA officer to go to jail during Obama’s presidency is CIA whistleblower John Kiriakou, who became a target of the CIA and Justice Department after began to speak publicly about waterboarding being official policy.

The appointment of Brennan was a reaffirmation of Obama’s commitment to not prosecuting officials involved in torture, as Brennan had detailed knowledge of CIA torture and even supported the use of torture techniques on “real hard-core terrorists.”

The Post‘s story mentions Brennan is working on the CIA’s response to a 6,000-page Senate report on the CIA’s use of torture techniques. The report should be declassified.

Former CIA case officer Reuel Marc Gerecht, who is now affiliated with the right wing defense think tank, Foundation for the Defense of Democracies, argued in a column published by the Post on March 24 that the “CIA’s interrogation program deserves a public airing”:

…Langley deserves a fair public trial. Release the Senate magnum opus. Let people see the CIA’s back and forth as it tried to devise an American way to compel jihadists to talk. And release the tens of thousands of pages of documents seized in the raid on Osama bin Laden. Everyone would benefit from an open, bruising assessment of the country’s long war against Islamic radicalism…

It was penned because Gerecht is under the impression that the contents of the report might vindicate the CIA for what it did because Democrats had some political axe to grind. The editorial was pro-torture. “We should all want a vigorous debate about the type of duress — psychological and physical — a liberal democracy is willing to use against captured holy warriors who would down skyscrapers,” Gerecht declared. Despite this reality, it will require immense pressure to get the report released.

If human rights organizations have to make common cause with disaffected former CIA officers who happen to be pro-torture to get it released, so be it. Neoconservatives and right wing defense think tankers might actually fuel debate with human rights advocates, which would only increase the possibility that the CIA faces greater scrutiny and calls for punishment of officials.

In conclusion, not only do officers who engaged in war crimes continue to occupy key positions of the CIA but officers in the agency are able to lie about the torture program without being challenged. They enjoy protection from the Justice Department, which has chosen to not prosecute crimes, and are sheltered by secrecy that still exists around the unlawful and inhumane program. It is all a part of the culture of impunity, which the Obama administration has nurtured. And, until the Senate report is released, former CIA officers like Rodriguez will be able to share inaccurate information about the CIA’s use of torture techniques with few challenges because accurate information that would rebut false claims will remain classified and unavailable to the public.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."