Gadfly is Marty Aussenberg, a columnist for the alternative weekly Memphis Flyer. Marty is an attorney in private practice in Memphis, Tennessee.

I don’t understand the scandal that’s arisen over the destruction by the CIA of the tapes it made of interrogations. I mean, isn’t this SOP for the Bush administration, and, indeed, its Republican forebears? Isn’t that what the Bushies did with millions of e-mails that disappeared from the White House’s servers, as well as with (and about) billions of dollars in Iraq that have disappeared into the ether (a/k/a Halliburton). And, isn’t that the way Papa Bush (and Reagan before him) handled the coverup of the Iran-Contra scandal?

It’s obvious what happened here. The CIA (and others for whom it was apparently acting as a proxy) was faced with the choice of the least of several evils: risk having the tapes come out, with the resulting blowback from the Muslim world the likes of which hasn’t been seen since Abu Ghraib, or destroy the evidence and throw yourself on the mercy of the courts (and the public) by saying (as the director of the CIA has) “hey, there was nothing illegal in the tapes,” or, “we did it to protect our agents,” or some other such nonsense. Risk having anyone who participated in “enhanced interrogation” (read: torture) prosecuted, both domestically and as a war criminal (with the tapes being “Exhibit A”), versus risk pissing off a few senators, congressmen and federal judges about the destruction of evidence (read: obstruction of justice). The choice seems pretty obvious, if you’re a Bush acolyte.

More after the jump

Remember what happened when the images of Abu Ghraib were released to the public? The Bushies weren’t going to let that happen again. So, this was obviously a cost/benefit analysis that was performed by the CIA, probably with the complicity of the Pentagon (which authorized “enhanced interrogation”), and arguably with the knowledge of the White House (now that it’s come out that the President’s counsel, Harriet Miers, knew about the tapes), and the determination was made that the consequences of destroying the tapes were far less damaging than the consequences of having them come out.

If Republicans learned any of the lessons of Watergate, it was that (a) that tapes can easily be destroyed, erased or altered (e.g., the Rosemary Woods 18½ minute gap), and (b) that if you don’t destroy, erase or alter tapes, they can be used to impeach and/or prosecute you (e.g., the Butterfield taping system in the Nixon White House). The conventional wisdom about the Watergate tapes, which eventually did Nixon in, was that if he had destroyed them before they came to light, he might have been able to withstand (or avoid altogether) impeachment, since they were the most damning evidence of his criminality. So, why not destroy evidence of war crimes?

Part of the cost/benefit analysis done in reaching the decision to destroy the tapes was the likelihood that, just as happened with Abu Ghraib, only the low-level flunkies would ever be held accountable for their destruction, and for the mayhem they recorded. We’re already seeing that, with the finger being pointed at a single, now-retired CIA official. The Republicans have learned how easy it is to hoodwink the public, not to mention the Congress and the judicial system, into believing that anything they or their minions do, is only the responsibility of the dupes who’ve done it, not anyone who was responsible for the policy that allowed it to happen. That’s how everyone in the chain of command at Abu Ghraib avoided their accountability moment.

In the case of these tapes, can there be any doubt that the the folks who authorized the “enhanced interrogation techniques,” including Rumsfeld, his deputy, Steve Cambone, David Addington (now Cheney’s consigliere), Alberto Gonzales and, last but not least, John Yoo, would have been at risk for criminal prosecution if the graphic result of their authorization had ever come to light? And since no one has admitted to waterboarding (except for the accusations of its victims), and there is no independent evidence of its having been practiced, the people responsible for implementing the policy that allowed it look like they might skate.

And, of course, despite the flurry of demands by members of Congress that the tapes’ destruction be investigated, Congress won’t do anything, at least not anything meaningful. Oh sure, there will be some “show hearings,” but nothing will come of them because Congress (read: the Democrats) is a paper tiger. Hasn’t it proved that by its failure, despite a lot of table-thumping, to hold in contempt any of the witnesses who’ve evaded its subpoenas, something it clearly has the power to do. It’s never done its own investigation of how or why we invaded Iraq (we’re still waiting–for two years now—for the Senate Intelligence Committee to release the second part of its report on that issue), Abu Ghraib, the many remaining unanswered questions about 9/11, or the entire Katrina debacle, has it? It still hasn’t found out who was responsible for the billions of dollars that went astray in Iraq, and it still hasn’t begun to hold Bush and Cheney accountable for all the things (illegal wiretapping, rendition, etc.) we already know they did that warrant accountability (read: impeachment).

And getting the Justice Department to investigate the tapes’ destruction would be another example of asking the fox to investigate a break-in at the hen house. The new attorney general, Michael Mukasey, judging from his confirmation hearings, in addition to having an obvious dilemma about whether or not waterboarding (which is apparently shown on the destroyed tapes) is torture, was actively involved, as a judge, with aspects of the detention of suspected terrorists whose lawyers were either denied access to the tapes or told they didn’t exist. And, most importantly, the techniques which are undoubtedly demonstrated on the tapes were facilitated by the justice department itself. Remember, it was people like John Yoo, and (now, circuit court judge) Jay Bybee who, when they were part of DOJ’s Office of Legal Counsel, issued opinions that sanctioned torture. That is the legal authority the new CIA director, Michael Hayden, was relying on when he told his employees, just before the story of the tapes’ destruction broke in the New York Times, that the techniques recorded in the tapes were “legal.”

So, the Congress obviously isn’t going to (or at least, not effectively) investigate the tapes’ destruction, and the justice department can’t investigate it (or shouldn’t, on conflict of interest grounds). So who does that leave to investigate it. A Special Counsel, maybe, like Patrick Fitzgerald, who couldn’t even nail the obvious malefactors in the Plamegate scandal, settling for the minor (relative to the treason that was committed) charges that were brought against Scooter Libby? And, of course, Congress has little stomach left for Special Counsels. The Democrats remember all too clearly the excesses of Ken Starr, and the Republicans are still fuming from what they consider the excesses of Patrick Fitzgerald. No, I doubt a special counsel will be appointed.

The only thing that will happen as a result of the destruction of the tapes will be sanctions imposed by the courts where terrorist prosecutions are pending against the government’s lawyers for lying about the existence of the tapes. And it is possible that one of those sanctions may end up being the dismissal of one or more of those prosecutions. Big deal. Other than that, I expect no one will be prosecuted for what is an obvious obstruction of justice (except maybe the poor schnook, Rodriguez). Nor will they be prosecuted for authorizing the techniques that were apparently graphically displayed on the destroyed tapes. Hey (to paraphrase), no foul, no harm.

So, while the guy they’re pointing the finger at for authorizing the destruction may go down for the count, if the past is prologue, we can expect this most recent example of Republican cover ups to be covered up, once again.

Update [2007-12-9 5:2:8 by gadfly]: The Washington Post reportsthat members of Congress (including Nancy Pelosi) were briefed about waterboarding as far back as 2002, and not only didn’t object to it, but encouraged it. If this is true, it represents yet another reason Congress will do nothing meaningful about the recent revelation about the destruction of tapes that may reveal waterboarding.