No Comment — December 6, 2007, 5:46 pm

Obstruction of Justice at the CIA

The Bush Administration has had a consistent practice of destroying evidence which would document serious crimes perpetrated with the connivance or consent of senior officials, particularly including acts of torture and abuse performed on detainees in connection with what President Bush calls the “Program.” Some of the strongest evidence to date of this practice has just entered the the public record. Prosecutors take note.

Today, as Congress proceeds with legislation which clarifies what has always been the case, namely that use of the distinguishing features of the “Program” is a serious crime, the New York Times reports the destruction of important evidence of the crimes as a conscious policy at the CIA.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

Let’s first focus on this question: Why is this evidence being destroyed? The answer is painfully acknowledged. The CIA leadership and other senior administration officials are fully cognizant of the fact that the use of a number of specific practices which these tapes almost certainly document, to-wit: waterboarding, long-time standing, hypothermia, psychotropic drugs and sleep deprivation in excess of two days, are serious crimes under American law and the law of almost all nations. Consequently, those who have used them and those who have authorized their use will almost certainly ultimately face criminal prosecution at some point in the future. The Administration’s attempts to immunize the perpetrators have failed. Any purported grant of a pardon by President Bush will be legally ineffective, because Bush himself is a collaborator in the scheme. And there is no statute of limitations. Therefore the prospect of prosecution is hardly far-fetched. It is a virtual certainty. So the evidence is being destroyed precisely because it would be used as evidence of criminal acts in a prosecution of administration figures and those acting under their direction. Therefore, this is a conscious, calculated obstruction of justice.

The second question is: Where has Congress been throughout this period?

The Associated Press now has a story up which raises even more troubling prospects. In it, General Hayden suggests that the Agency notified Congressional oversight and they expressed no objection to the destruction of evidence.

CIA Director Michael Hayden said House and Senate intelligence committee leaders were informed of the existence of the tapes and the CIA’s intention to destroy them. He also said the CIA’s internal watchdog watched the tapes in 2003 and verified that the interrogation practices were legal.

This raises more issues. Who in the intelligence committees were notified? What did they do that expressed consent? Indeed, if they failed to raise objections, they weren’t performing their oversight function. Chairman Rockefeller has a different description of what happened from General Hayden:

“While we were provided with very limited information about the existence of the tapes, we were not consulted on their usage nor the decision to destroy the tapes. And, we did not learn until much later, November 2006 — 2 months after the full committee was briefed on the program — that the tapes had in fact been destroyed in 2005.”

Congresswoman Jane Harman also states unequivocally that she warned against destruction of the recordings. The suggestion that the “CIA’s internal watchdog” viewed the tapes and approved in 2003 raises more questions. Does this “watchdog” understand its function as suborning criminality? It certainly looks that way. If it gave a green light, then it was complicit in a criminal act, and it needs to be the subject of an investigation itself.

But first let’s note: this was when John Yoo’s torture memorandum, issued out of the Department of Justice’s Office of Legal Counsel in order to bind the CIA to the Yoo/Addington lunatic notions of torture, was in force. So that determination that they “were legal” is in fact John Yoo’s determination that they were “legal.” And this is as worthless a determination as has ever appeared within a rifleshot of the Potomac. Indeed, if that’s Hayden’s basis for saying it was legal, the proper reaction would not be to be reassured, it would be to be still more concerned.

In addition to being evidence of criminal conduct undertaken with official sanction, the tapes would be probative of the value of any “confessions” or “admissions” secured using the techniques. They would establish that any such evidence is worthless. By destroying the evidence, the Bush Administration is laying the foundations for the use of torture-induced “evidence” in court room proceedings, in violation of U.S. law and international commitments. In fact we now have a number of witnesses saying that exactly this is in train, including a JAG colonel whose testimony before Congress Defense Department General Counsel (another of the prime torture conspirators) intervened to block.

And, Andrew Sullivan reminds us in asking the so-appropriate question “Is this a Banana Republic?,” the same unexplained disappearance of tapes marked the prosecution of Jose Padilla:

The same happened in the case of Jose Padilla:

“The missing DVD dates from March 2, 2004. It contains a video of the last interrogation session of Padilla, then a declared ‘enemy combatant’ under an order from President Bush, while he was being held in military custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in the course of an unusual court hearing about Padilla’s mental condition, a government lawyer disclosed to a surprised courtroom that the Defense Intelligence Agency — which had custody of the evidence — was no longer able to locate the DVD. As a result, it was not included in a packet of classified DVDs that was recently turned over to defense lawyers under orders from Judge Cooke.

The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government’s highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. “This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi,” said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government’s treatment of Padilla. “It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused.”

Moreover, in Iraq in the period just before the investigation of Gen. Taguba was commenced, a number of witnesses have now described a special “clean up” mission that was sent through detention facilities, requesting that photos, recordings, records and documents be collected for destruction, to leave no evidence of the practices established there at the direction of Secretary Rumsfeld himself. Two generals have now described this “clean up.”

All of this is clear cut obstruction of justice, a serious federal crime.18 U.S.C. sec. 1502(c): “Whoever corruptly . . . alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
18 U.S.C. sec. 1505: “Whoever corruptly . . . obstructs or impedes or endeavors to obstruct or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress. . . Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”
In the course of the last few years, we have seen a number of wannabe macho federal prosecutors utilize obstruction statutes to go after businessmen (a couple of investment bankers and accountants come to mind) who were a bit too quick to turn to the shredder, usually under circumstances which were extremely ambiguous. The prosecutors used all the power and force associated with their office to attempt to criminalize these acts. This case is quite different. It is openly, clearly and undeniably criminal obstruction.

A major question hovers over the conduct of the Justice Department throughout this process. Nowhere does the Justice Department appear to behave like a law enforcement agency. If anything is has adopted the stance of a mobster’s consigliere, and some signs point to the Justice Department’s actual complicity in these criminal acts. Particularly troubling is the Justice Department’s conduct in a high profile prosecution in the Eastern District of Virginia. It now appears that the Department knew of the existence of vital information which it consciously, and wrongfully, withheld from the Court and from defense counsel. This must be investigated and those involved in unethical conduct punished. Further, the CIA and DOJ appear to have collaborated in withholding this information from the September 11 Commission, obstructing and undermining a vital investigation.

Next steps. This requires an urgent investigation to get to the bottom of things at the CIA. General Hayden has been pleading for the right to be able to operate in the shadows. “We obey the law. Trust us.” The memorandum he issued to CIA employees this evening, which Prof. Lederman has ably deconstructed, is an amazing assemblage of falsehoods, evasions and half-truths. One thing that flows inescapably from what Hayden writes: he believes that torture techniques are just fine, and he apparently has authorized their use. This is already enough for us to ask how this man can possibly be permitted to serve as director of Central Intelligence? He needs to be the subject of a formal, independent criminal probe.

Senator Rockefeller’s statement also raises more questions than it answers. Frankly, he looks completely spineless. If he knew of the plans to destroy the torture tapes, and failed to intervene to stop it, then he has no business serving as chair of the Intelligence Oversight Committee. He should resign immediately, and someone with a higher level of moral resolve should occupy this spot. It is clear that in the period in question, there was no effective oversight of the CIA at all. Indeed, it was this vacuum of accountability that enabled not only the torture system, but the rampant corruption that arrived with the Gosslings. There is no evidence that General Hayden has materially changed the situation.

A nation that sits silently and allows this to transpire demonstrates complicity. The oversight committees need to start doing their job. And we need a Department of Justice that enforces the law rather than suborning serious official criminality. As John McCain very aptly said in the last presidential debate, this is the defining issue for our country–whether the country continues on the path that George Washington and Abraham Lincoln set for it, or whether it adopts the mentality and practices, the unbridled authoritarianism and official cruelty, of Kaiser Wilhelm and similar autocrats. The choice couldn’t be clearer, nor the moral implications of the decision.

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