Today’s Must Read

And now there’s a paper trail in the saga of the CIA’s destroyed interrogation videotapes. A former senior intelligence official tells The New York Times‘s Mark Mazzetti and Scott Shane that lawyers within the agency’s clandestine wing advised Jose Rodriguez Jr. in 2005 that junking the tapes was legal. For the investigations opening into Rodriguez’s actions by the House and Senate intelligence committee, that written advice will be key — if it hasn’t already been shredded.

It’s unclear exactly which attorney from the Directorate of Operations (now called the National Clandestine Service) gave Rodriguez the go-ahead. A bevy of administration and intelligence officials have acknowledged that attorneys from the White House (including Harriet Miers), the Justice Department, and the CIA’s general counsel advised against destroying the tapes. Interestingly, a clearly pro-Rodriguez ex-CIA official tells the Times that such advice was less than ironclad:

“They never told us, ‘Hell, no,’” he said. “If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.”

Behold another pivot point for the joint DOJ-CIA Inspector General inquiry and the Congressional probes: how clearly did the Bush administration warn the CIA against destroying the tapes? Did Rodriguez, faced with widespread administration opposition to the destruction of the tapes, simply keep asking for guidance until he found the legal advice he wanted? Or did the administration, including the CIA’s own acting general counsel, John Rizzo, give equivocal, I-don’t-want-to-know guidance?

There’s a bitter irony here. Earlier this year, Rizzo lost his bid to become the CIA’s general counsel after he offered a euphemistic and equivocal definition of torture to the Senate intelligence committee. But by all accounts, Rizzo opposed the destruction of the interrogation videotapes, which very likely display torture. And the attorney Rodriguez relied upon, against protocol, went behind Rizzo’s back:

In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.

It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But the former official said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.

The former official said the leaders of the clandestine service believed they “didn’t need to ask Rizzo’s permission.”

Double irony: in circumventing Rizzo, Rodriguez might not have obtained the valid legal cover he sought.

“Although unlikely, it is conceivable that once a C.I.A. officer got the answer he wanted from a D.O. lawyer, he acted on that advice,” said John Radsan, who worked as a C.I.A. lawyer between 2002 and 2004 and is now a professor at William Mitchell College of Law in Minnesota. “But a streamlined process like that would have been risky for both the officer and the D.O. lawyer.”

When intelligence-policy scolds berate the agency for being risk-averse, this isn’t exactly what they have in mind.