They’ve tried to slide this in under the radar, haven’t they?

Random thoughts –

*No one has ever questioned DOJ on its total lack of preservation notices with respect to its torture program. They pick and choose things like the squishy issues of whether or not the torture memos were well written, and leave all kinds of hard issues – like the very clear duties to preserve evidence and for attorneys to put their client on notice of its duties to preserve – hanging. There’s lots of reference to things like whether or Addington “said” they should be preserved, but he was OVP and that wasn’t in writing. Ashcroft, Thompson, later Comey, Bybee, Yoo, Goldsmith, the EDVA guys looking into criminal referrals, etc. – there were a slew of DOJ lawyers directly involved in the torture programs who should have issued written preservation notices – where are they? Why don’t they ever get asked about? Not a very squishy area, that one. Emails, videotapes, etc. – DOJ sat back through the destruction of all kinds of evidence, without any written preservation notices ever being produced.

*IMO, Bellinger’s “offhand” questions wasn’t offhand at all – he knows what he and NSC did and per the OPR investigation and Bybee’s interview, Bellinger is the guy who deliberately cut Taft and State out of the loop on the torture memos. His question wasn’t a question – it was an invitation to make things go away IMO. He had a vested interest in wanting those things to go away.

* AP doesn’t do much with the passing reference to Rodriguez’s female COS. Mayer’s book links the female CIA officer who flew to watch KSM be waterboarded for funsies (and got a censure for it) to the female CIA officer who forced the torture of el-Masri and wouldn’t let him go even when it was clear he was a mistake. There are also stories of Rodriguez sending a female officer to oversee the tape destruction for him. EW will probably recall much better than I do (or maybe even have some materials on it) but IIRC (maybe Mayer’s book, maybe something else?) there have been some allusions to the possiblity that the person overseeing the tape destruction was the same el-Masri torture girl and that her “covert assignments” have been strung out by CIA primarily to protect her from publication of her relationship to lots of misfeasance andto (successfully) keep el-Masri from having any recourse bc she’s such a “state secret” Apparently Obama and Panetta have continued the protectionist course.

*As bmaz has pointed out over and over, even without a court order (and list of “technical”reasons the CIA felt it didn’t have to comply with court orders isn’t real persuasive) the tapes were required to be preserved as evidence necessary for Zubaydah and Nashiri. Unless they were planning on doing something other than even a military commission.

*Dozens of contractors – that’s another point that doesn’t get made often. I’ve pointed out before that OLC isn’t allowed to give opinions for the benefit of nongov actors, like contractors. So no contractor involved in any of this could even begin to claim cover of OLC opinions. No one in Congress actually or competently briefed, but dozens of contractors involved.

*More bailout of lawyers. The article acknowledges that Eatinger and Hermes ok’d the tape destruction but then on investigation claimed they thought he was only going to use their advice to *tee up* more discussions on the tapes, bc they WERE AWARE WHEN THEY GAVE THEIR ADVICE OF PREVIOUS ORDER NOT TO DESTROY THE TAPES.

“Both Eatinger and Hermes remain with the agency and were not available to be interviewed. Both have told colleagues they believed Rodriguez was merely teeing up a new round of discussions about the tapes and, because of previous orders not to destroy the tapes without White House approval, they were unaware that Rodriguez planned to move immediately, officials told the AP.”

But you know, *technically* Muller should be protected bc *technically* there were no court orders violated and *technially* Eatinger and Hermes should be protected bc *technically* there were no court orders and they didn’t really think their advice would be followed. Uh huh.

Oh, and the dozens of CIA agents have to be protected, bc they were undercover. And the dozens of contractors were … uh, somethingorother. And of course, the COS who was overseeing the destruction has to be protected, bc she’s undercover. Still. For years now. Despite knowing that she will knowingly violate direct orders from the WH. Really?

And Rodriguez lawyer says Jose was only working in the best interests of the US and its people when he destroyed the tapes. Or, restated in a contemporaneous email describing Jose’s statements from the time:

“As Jose said, the heat from destroying is nothing compared to what it would be if the tapes ever got into public domain – he said out of context, they would make us look terrible; it would be devastating to us,” John’s e-mail reads.

The bizarre references to using Sarbanes-Oxley as the only option for going after the destruction indicate that the fix is in for all the lawyers who have been involved in the torture programs. If you look at the very real obligations of the DOJ lawyers to insure that information relating to Zubaydah’s torture be preserved to prevent obstruction in his civlian or commission trial – then you open up all kinds of other problems, from the missing emails to the law licenses of people up to and including former AGs.

That’s not gonna happen.

So some bizarre Sarbannes-Oxley approach that causes many more problems than it solves and may therefore be more legitimately attacked – that’s the upshot of all this. While the undercover operative who destroys torture evidence, takes torture field trips, arranges for the torture of innocent Germans, and openly defies direct WH orders – – continues on, protected by an undercover status that Obama and Panetta haven’t done anything about.