Taking the Fifth?

The CIA official at the center of the controversy over the destruction of interrogation tapes may invoke his Fifth Amendment privileges and refuse to cooperate in investigations by Congress and the Justice Department, his lawyer warned today.

The lawyer, Robert Bennett, confirmed today that he has been retained by Jose Rodriguez, the former chief of the CIA's clandestine service. Rodriguez's testimony is considered essential to official inquiries into why highly sensitive interrogation tapes of key Al Qaeda suspects were destroyed in November, 2005.

But Bennett, one of Washington's premier criminal-defense lawyers, said Rodriguez may decline to testify if he concludes that the probes are a "witch hunt"—a threat that could significantly delay congressional efforts to get to the bottom of the matter. "I don't want him to become a scapegoat," Bennett said.

The House Intelligence Committee had notified the CIA that it wanted to call Rodriquez to appear as early as next Tuesday. But now that he has hired a private lawyer, it is far less likely that Rodriguez will show up at the session—if for no other reason than that Bennett must first get high-level security clearances in order to even represent his client. The lawyer, who said he already has a top-secret clearance for another case, estimates that process will probably take no more than a few weeks.

But Bennett made clear that Rodriguez's cooperation will depend on much more than getting his clearances. "One thing I'm not going to allow is for him to become a pinata in an election year for people with a political agenda," the lawyer said, adding "we'll have to see" whether the probes are going to be conducted responsibly. "Or is it a witch hunt?" Bennett said these comments apply "across the board"—to the inquiries by the House and Senate intelligence committees as well as the preliminary joint inquiry by the Justice Department's national security division and the CIA's inspector general.

The destroyed videotapes at issue were made by the CIA during the course of interrogations of two "high value" Al Qaeda captives—Abu Zubaydah, purportedly the logistics chief for Osama bin Laden's terror organization, and Abu Al-Rahim al-Nashiri, suspected of being the group's chief of operations in the Persian Gulf. The tapes allegedly document the agency's use of harsh interrogation techniques, including waterboarding, that critics have charged amount to torture and are therefore possibly illegal under federal law.

CIA officials have insisted that any techniques used were approved by the White House and the Justice Department. CIA director Michael Hayden disclosed to agency employees last week that the agency had destroyed the tapes in November 2005 because it feared the tapes would leak and therefore compromise the identities of the interrogators.

But the disclosure has caused an uproar, provoking charges from some in Congress that the agency had destroyed what amounts to key evidence of the interrogations without the approval of the congressional oversight committees charged with monitoring the CIA's interrogation and detention program. Rodriquez is considered the key figure in the dispute since, as chief of the agency's clandestine service, he ordered that the tapes be destroyed.
A former government official familiar with Rodriguez's views on the tapes controversy says that Rodriguez and his associates maintain that they repeatedly sought instructions from CIA management over a two-year period about what to do with the tapes, but never got clear instructions.

According to the former official, who requests anonymity discussing such a sensitive matter, Rodriguez and other Clandestine Service officials sought guidance from both then-CIA director George Tenet and Tenet's successor, Porter Goss, about what to do with the tapes. This source maintains that John Rizzo, a senior CIA lawyer, also discussed the issue with Justice Department and White House lawyers, including senior White House lawyer Harriet Miers.
Current and former intelligence officials have told Newsweek that before ordering the tapes to be destroyed, Rodriguez obtained a written opinion from a CIA lawyer assigned to the Clandestine Service that concluded there was no explicit legal reason why the tapes would have to be preserved. However, sources familiar with this document insist that it did not authorize or recommend that the tapes be destroyed, and that the author of the legal opinion believed that Clandestine Service officials would seek further advice from more senior officials before destroying any tapes. The tapes themselves were never brought into the United States, but rather were stored—and destroyed—at a secret location overseas, current and former officials said.

Bennett, who represented President Bill Clinton in the Paula Jones sexual harassment lawsuit, and, more recently, Paul Wolfowitz, the former World Bank president, declined to discuss any of the details of Rodriguez' case today. But he said his client had been "a dedicated and loyal public servant for 31 years and I'm convinced that he has done nothing wrong."