Willful Blindness

Marty Lederman

The persistent theme of stories about the CIA tape destruction is that countless government officials "advised" the CIA not to destroy the tapes . . . but no one actually instructed the CIA not to do so, nor, presumably, did anyone go so far as to tell the CIA that it would be unlawful to destroy the tapes.

In the category of "shoes that were bound to drop eventually," we now learn from the New York Times that -- surprise! -- the matter was discussed by not only Harriet Miers, but also John Bellinger (when he was NSC General Counsel), White House Counsel Alberto Gonzales and, of course, David Addington. What did this august group "advise" the CIA?:

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.

Of course, if there was "vigorous sentiment" from some White House lawyers among those four (and who do you think that would be?) that the tapes should be destroyed, such "sentiment" would understandably be seen as a green light at the CIA. Congress must get to the bottom of that.

But even if no such "sentiment" was expressed, more important, perhaps, are the dogs that have not barked (not yet, anyway) -- those things that are conspicuous by their absence from the story as we know it so far:

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.

Third, a slew of people evidently advised the CIA that it would be unwise or even illegal to destroy the tapes. Thereafter, most or all of those officials, in the CIA, in the White House, in Congress, etc., eventually found out that the CIA did destroy the tapes -- and not a single one of them did a thing about it. Why not? Well, perhaps it's because this entire group finally issued a collective sigh of relief that, finally, the CIA had failed to heed their "advice."
Posted 11:18 PM by Marty Lederman [link]