Jose Rodriguez, the man who ordered the destruction of the CIA torture tapes, has retained D.C. lawyer Robert Bennett and has demanded that he be given a grand of immunity by Congress before he testifies. It is a move that could practically cripple any prosecution, as shown by the Oliver North case.

Rodriguez has been called to testify before the House Intelligence Committee on Jan. 16th. Congress has refused to stand aside and allow the Justice Department to investigate itself. However, the House Intelligence Committee is not the committee of choice for most people who want an independent investigation. Democrats and Republicans on this committee knew of both the torture program and the plan to destroy the tapes for years before they became public. While the House Committee is under new leadership and is better in this respect than the Senate Committee, there was a hope that the torture issue would place the investigation under the control of the House Judiciary Committee.

After completing an initial inquiry, tthe Justice Department has decided to open a full criminal investigation into the 2005 destruction of CIA tapes showing the interrogation of two Al Qaeda suspects. The finding of a basis for possible criminal charges is not itself surprising — there are at least six such offenses that were obvious from the outset. Attorney General Mukasey has appointed a U.S. Attorney General to handle the investigation — a disappointing decision not to appoint someone outside the Administration.

The Justice Department is the very party accused of contempt and obstruction. It is the institution that told judges like Judge Brinkema in Virginia that no such tapes existed when they did. More importantly, in a contempt circumstance, it is the duty of the court to make an independent inquiry. If this were a private party, it would be odd for the court to say that it wants the accused party to first investigate itself. Instead, a court issues a show cause order that tells the party that it wants to know why it should not be held in contempt. The party is then given time to muster its facts and filings. This would have been the better course for the court. Instead, the court is practically leaving a judicial matter (contempt) in the hands executive branch, which is investigating itself.

In June 2005, Judge Kennedy handed down an order for the Administration to preserve “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.” Five months later, the CIA destroyed the interrogation videos and the Administration is relying on a technicality — the two suspects tortured in the videos were not in Cuba. However, such preservation orders are supposed to be given liberal interpretation. Moreover, the government knew that the tapes have been sought by Congress and other courts. Finally, it knew that the tapes would likely be sought in this and other cases, including in the inevitable filings of Abu Zubaydah and Abd al-Rahim al-Nashiri.

In addition to obstruction, false statements, conspiracy, and perjury, there is spoliation. This crime occurs when there is the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim. This applies to “pending or reasonably foreseeable litigation.” It has been defined “the destruction or significant alteration of evidence, or the failure to preserve crucial items as evidence in pending or reasonably foreseeable litigation.”

Immunity presents a real threat to any possible prosecution. It is very hard to prosecute someone who has testified under an immunity grant. Prosecutors must show that the testimony was not used directly or indirectly to acquire the evidence against the defendant. This could be a bit easier in the House Intelligence Committee, which may hold the hearing in sealed proceedings so that investigators do not hear or read the testimony. Nevertheless, the staff will. They will use the testimony to continue their own investigation which will be covered by the press. These accounts will then contaminate the federal investigators.

This is precisely what happened with Oliver North. North was in May 1989 of three charges: accepting an illegal gratuity, aiding and abetting in the obstruction of a congressional inquiry, and destruction of documents. He was sentenced to a three-year suspended prison term and two years probation, $150,000 in fines and 1,200 hours community service. However, an appellate court on July 20, 1990, vacated his conviction due to the influence of his immunized testimony before Congress on witnesses. The special prosecutor, Lawrence Walsh, had tried to prevent his investigators and prosecutors from watching the congressional hearings but these extraordinary efforts were insufficient.

At the same, many suspected that Congress wanted to kill the prosecution, but not directly. They were warned about the danger and, even though the court applied an more stringent standard, the risk was always high.

The concern is greater here. Many in Congress privately want this scandal to go away — including Democrats. They have been trying to confine the scandal to the issue of the destruction of the tapes and not torture. While the Bush Administration is clearly most responsible, they know that both Democrats and Republicans in Congress share some responsibility due to their failure to act and their concealment of their own knowledge from voters. Indeed, the danger of democratic leaders being implicated in the scandal has already been made clear by the White House. Almost immediately after the disclosure of the torture program and the destruction of the tapes, the Administration pointedly noted that Democrats were aware of both the program and the plan. If these officials are under serious threat of prosecution, they are more likely to give more details of congressional collusion. Immunity would be an easy way to make prosecution more difficult.

Rodriguez is likely to be followed by other officials demanding immunity, though this is a bit more difficult for current officials who are expected to testify in the legislative branch. The last sitting official to refuse to testify was Monica Goodling, who eventually resigned. While there is no legal barrier to demanding immunity, a government officials is expected to be able to testify before oversight committees without such protections.

According to sources, at least four top White House lawyers discussed the issue between 2003 and 2005. This would put the discussions at a date shortly before Gonzales took over as Attorney General. It would also show that he knew of the destruction plan as Attorney General despite the demand for such evidence by Congress and the courts. It would also mean that Gonzales was involved in another alleged criminal act. He was previously involved in pushing the unlawful electronic surveillance program, even appearing at the hospital bed of John Ashcroft to override objections within the Justice Department. He was also the author to the infamous torture memo and now appears to have be a party to a plan to destroy evidence of such torture. It also appears that he did not reveal this involvement to Congress in his confirmation hearings.

Reportedly also involved were David Addington, counsel to Vice President Dick Cheney and is now his chief of staff; John Bellinger III, then senior lawyer at the National Security Council; and Harriet Miers, who succeeded Gonzales as White House counsel. Addington is particularly interesting given his appearance in virtually every scandal these days. He is known as an enabler for both Bush and Cheney, arguing for extreme assertions of executive privilege and supporting such things as waterboarding.

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