Today’s Must Read

When it comes to torture, it’s the system.

Today’s New York Times carries a valuable analysis by Scott Shane running through how the revelation of the destroyed CIA torture tapes underscores the agency’s fears of having the administration turn on it. That is, after manipulating the law to justify ordering the CIA’s torture of Abu Zubaydah, Khalid Shaikh Mohammed and other al-Qaeda detainees, the Bush administration might finally prosecute someone low on the CIA food chain for doing what they ordered him or her to do. The agency watched Donald Rumsfeld, William Haynes and Ricardo Sanchez walk while Lynndie England and Charles Graner took the fall for Abu Ghraib. No one wants to be the Lynndie England of the Black Sites.

The administration hasn’t gone down this road yet. But, from the CIA’s perspective, the destruction of the tapes might bring it dangerously close. After all, if the Justice Department-CIA probe finds that Jose Rodriguez committed a crime by destroying evidence when he had the tapes junked, it raises the question of what those tapes contained evidence of. There are reams of evidence — legal guidance from John Yoo, for instance, some still classified — of what the underlying crime is.

So how does the CIA get out of it? Why, blame the system. Consider this passage from Shane:

Mr. Yoo’s legal opinions, though criticized as seriously flawed by some scholars, may nonetheless provide impenetrable armor for C.I.A. officers. From the beginning, wary agency officials insisted on what they called “top cover” — written Justice Department approval for what they did.

Most legal scholars say that even under a future administration, the Justice Department would not seek charges against C.I.A. officers for actions the department itself had approved.

Maybe not. But play the part of a nervous CIA interrogator who’s watching the legal cover she was assured she had slip away. What’s her option?

Her option is to say, again and again, that she had legal guidance for everything she did. She will seek to enter into the record for her defense every legal opinion authored by John Yoo, David Addington, Alberto Gonzales, Steve Bradbury, John Rizzo and anyone else that filtered down to her level in the interrogation chamber. Command responsibility — a legal doctrine from the Nuremberg Trials — is the essence of her defense: she was not in a position to evaluate the legal merits underlying her orders, and so she was assured that what she did had the legal imprimatur of the Bush administration. Would she triumph? It’s uncertain. But what is very, very certain is that she would base her case on the idea that if she’s a criminal, so is John Yoo, David Addington, Alberto Gonzales, Steve Bradbury, John Rizzo, Dick Cheney and George W. Bush.

All that makes it likely that, as Shane writes, the Justice Department won’t prosecute anyone for interrogating detainees. Attorney General Michael Mukasey’s alternative is to risk the CIA’s pushback — which will be nothing less than calling his bosses and his colleagues war criminals.