The Scandalous Non-Scandal

CIA Director General Mike Hayden will be back on Capitol Hill today, appearing before the House Intelligence Committee. In his testimony, General Hayden is expected to tell Congressmen what he told members of the Senate on Tuesday: his knowledge of CIA interrogation tapes is limited, because they were created--and destroyed--long before he arrived at the agency. As the Washington Post reports:

But because the tapes were made in 2002 under then-CIA Director George J. Tenet and were destroyed in 2005 under another director, former representative Porter J. Goss (R-Fla.), Hayden said he is unable to answer all the panel's questions.

"Other people in the agency know about this far better than I," Hayden said.

After yesterday's hearing, Hayden told reporters that he had a "chance to lay out the narrative, the history of why the tapes were destroyed." General Hayden will likely repeat that narrative again today, as Congressional Democrats try to make the case that destroying the tapes was illegal--and pin the alleged crime on the Bush Administration.

And not surprisingly, they're getting the usual support from their friends in the MSM. Consider this headline from an AP story that appeared today:

"CIA Destroyed Tapes Despite Court Orders."

But, in the second paragraph, reporter Matt Apuzzo notes that the order--from a Bill Clinton-appointed federal judge--may have no bearing on the tape case, since it pertained only to detainees being held at Guantanamo Bay, Cuba. The tapes destroyed by the CIA (which contain brief scenes of key terrorists being waterboarded) were apparently recorded at secret detention facilities in Europe, not Guantanamo. Additionally, since the prisoners in the waterboarding sequences were not listed on existing detainee rolls ("off the books" in spook-speak), they were apparently beyond the judge's order.

Heh, heh, heh. Someone at Langley deserves a medal.

Additionally, Mr. Apuzzo fails to mention that the interrogation methods shown on the tape had been reviewed--and approved--years earlier, not only by government lawyers, but by Congressional overseers. As the Post reported last Sunday, the CIA began briefing members of Congress on the interrogation program in 2002, and continued to provide regular updates (an average of one every two months) for the next five years.

Among those in attendance: House Speaker Nancy Pelosi (then ranking member on the House Intelligence Committee); California Congresswoman Jane Harman (who succeeded Pelosi on the panel), and West Virginia Senator Jay Rockefeller, now Chairman of the Senate Select Committee on Intelligence. Key GOP leaders were also in attendance. With the exception of Ms. Harman, none of the Congressmen or Senators briefed on the interrogation program voiced any objections about the techniques being used. In fact, at least one Congressional leader asked the CIA if the interrogation methods were strong enough.

So, not only did key members of Congress know about the tapes, they almost universally agreed with the tactics used to get information from Al Qaida prisoners. And, in the days to come, we're likely to see evidence of that paper trail between Langley, the White House and Congress, outlining the CIA's plans to destroy the interrogation tapes. That's bound to produce a few more red faces on Capitol Hill, among Congressman and Senators trying to explain their past knowledge of the tapes, and early acquiescence on the waterboarding issue.

That's another reason the interrogation tapes will go down as the biggest non-scandal since the NSA surveillance program. You may recall Congress tried to make political hay over that one (after The New York Times exposed the program), but the furor quickly died, amid revelations that key Congressmen had been briefed--and apparently supported--the wire-tapping effort.

Attorneys for terrorism suspects still in U.S. custody claim that the scope of the judge's original order may not matter. David Remes, who represents Yemani suspect Mahmoad Abdah (and other accused terrorists) told the AP, "It is still unlawful for the government to destroy evidence, and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client."

Good luck with that one. Last time we checked, the U.S. Supreme Court was still grappling with the matter of what legal rights the detainees actually have under our judicial system. Unless the high court grants the full right of habeus corpus, the prisoners will not be able to petition a civilian court about the evidence or interrogation methods used against them.

For now, both the CIA and its leadership appear to be on firm legal ground. Interrogation methods and techniques used on terror suspects were vetted by agency and government lawyers before their implementation. Key members of Congress were briefed on the program and voiced their support. Some of the interrogations were videotaped--largely to ensure that CIA officers complied with program requirements. To protect the identities of operatives who appeared in the tape, the agency elected to destroy the video evidence--again, after much legal wrangling and debate. And once again, Congress was dutifully notified of plans to destroy the tapes. There was no discernible protest from the Hill.

Democrats will keep the sideshow going for a few more weeks, by summoning former CIA officials before their committees for more hearings. But as a scandal, this one doesn't have any legs. That's a big reason that Senator Rockefeller took a pass on the idea of an independent counsel investigation earlier this week. A protracted inquiry would do little more than embarrass leading Congressional Democrats, who were "on board" with advanced interrogation techniques years ago, and changed their minds for political purposes.

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ADDENDUM: Former House Intel Committee Chairman Peter Hoekstra isn't happy with General Hayden these days, according to the New York Sun. He said that briefings provided in 2002 and 2003 were not sufficient to explain activities (i.e., the tape destruction) that occurred in 2005, after leadership of the CIA had changed twice. Hmmm...let's see what the paper trail reveals. However, we should note that most of Congressman Hoekstra's ire is (justifiably) reserved for the recent NIE on Iran.

N/T: Captain's Quarters.