While the reporters don't exactly know what was said, they strongly imply that the White House lawyers, and by association the White House, wanted the tapes dumped in the Potomac.
It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.
One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.
Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.
Let me have one wild guess who wanted the tapes destroyed: Addington. He's not too interested in constraints on his own power. And Gonzales would go along with whatever his minders told him. This also means that the top official at the Justice Department was privy to discussions about the destruction of physical evidence implicating the federal government in major violations of international law, and said nothing. Because of course, he was knee-deep in it himself.
Keep in mind that the Justice Department is now the agency investigating this.
The sources in the story also throw a couple other CIA lawyers under the bus.
The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.
The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.
The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.
This lines up perfectly with Rodriguez' defense as stated later in the article by his lawyer Robert Bennett. What it means for the purposes of the investigation is that there is even more of a paper trail than at first believed. Add it on to this known communication.
Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.
There's going to be a federal court hearing this week about the destruction of the tapes, so the timing of this article is pretty clear. As much as Mukasey wants to obstruct judicial or Congressional review over this situation, he cannot dictate the terms by which other branches of government conduct themselves, nor can he stop the drip-drip-drip of revelations that sink the White House further and further into complicity.
This is the second demonstrable lie from the Bush Administration this week, and it's only Tuesday night. Yesterday we learned that Bush knew about the Iran NIE intel months before he claimed he did. Tonight, it's that the White House was heavily involved in the discussions over whether to destroy these tapes and obstruct justice.
UPDATE: via Turkana in the comments, here's Marty Lederman's take:
First, as noted above, there was plenty of "advice," but it appears that no one in any position of authority, inside or outside the CIA, actually instructed the CIA not to destroy the tapes. Why not? Perhaps because they were hoping their advice would not be heeded?
Second, given all the discussion and uncertainty about the issue, the logical, natural, thing to do would have been to ask the Justice Department for its legal views on the question -- to seek an official OLC opinion, in particular, which would be informed by the views of the DOJ lawyers who were responsible for compliance with court orders concerning preservation of evidence. Yet as far as we know, everyone assiduously avoided asking DOJ for its views. Why? Perhaps because no one wanted to hear those views . . . and because once those views were provided, the CIA would have no choice but to preserve the tapes.
For at least part of this time, the OLC was headed by Jack Goldsmith.
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