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Protecting Whistleblowers since 1977

Goodbye Accountability: No Criminal Charges Over Destruction of CIA Torture Videotapes

Jesselyn Radack, November 10, 2010

This post originally appeared in a Daily Kos column.

In August 2009, the Justice Department announced that it would not prosecute CIA employees who had acted in good faith.

Now, slamming the door on accountability once again, CIA officials get a pass -- this time for destroying dozens of videotapes depicting the waterboarding of Abu Zubaydah and Abd al-Rahim al-Nashri, in secret CIA prisons. The CIA withheld the fact that the tapes existed from both the federal courts and the 9/11 Commission, which had asked the CIA for records of the interrogations. 

Destroying those videotapes was such a brazen and blatant cover-up that even Bush was forced to launch a special investigation after the episode became public.

This is the icing on the cake of unaccountable government.

In his new memoir, President Bush writes:

I have been troubled by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs. . . Our intelligence officers carried out their orders with skill and courage, and they deserve our gratitude for protecting our nation. Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country.


Significantly, Bush goes on to say that successors are entitled to differences of opinion,

[b]ut criminalizing differences of legal opinion would set a terrible precedent for our democracy.

Ok, let's go with that for a minute.  What about Thomas Drake and other whistleblowers who are facing criminal prosecution? Isn't Drake's case alone (he's the ONLY person to date indicted under the original and dubious "leak investigation" launched by the Department of Justice into the New York Times sources for its Pulitzer Prize-winning expose of warranteless wiretapping) "setting a terrible precedent for democracy"?

Because warped lawyers blessed clearly illegal conduct, that legal guidance and those legal memoranda take primacy over the Constitution?

In Drake's case, revealing that the NSA was committing crimes and that there were alternatives that would have kept the government fully within the law -- while also enhancing the government's ability to provide for the common defense -- is now criminalized.

Meanwhile, the torture tapes special prosecutor, John Durham, decided NOT to bring charges against senior CIA personnel (including their lawyers) for the PROVEN destruction of the interrogation tapes, and evidence that was deliberately kept from the 9/11 Commission AND the federal courts -- the very definition of obstruction of justice.

Yet people like Thomas Drake have been charged with alleged obstruction of justice that in part involves alleged destruction of evidence -- without any PROOF whatsoever.

Are we to conclude that if CIA lawyers, acting on higher executive authority, authorize the destruction of tapes, it is legal?  What's the take-away message here?

It is reminiscent of Nixon's excuse and those who executed the will of the President and his underlings were justified in their actions because they were "just" following orders, however unlawful those orders were.  (Note to self: The "just following orders" defense was discredited in the Nuremberg trials.)  "Just following orders" does not abdicate your responsibility to be a human being.

And the cover and color of authorization by lawyers makes it legal and immune from any charges of illegality?  What about the irresponsibility of the leaders -- hiding behind their lawyers?  The fact that lawyers blessed this, not denounced it, makes it all the worse.

This begs SO much hypocrisy and the clear double standard of justice when it comes to the case of Thomas Drake and the other whistleblowers who are being prosecuted for telling the truth.

Jesselyn Radack is Homeland Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.