No Comment — December 10, 2007, 8:26 pm

What Difference Would It Make?

The Department of Justice and the CIA are undertaking a “preliminary investigation” to determine whether a more formal probe of the destruction of the two tapes is appropriate. The effort on the Justice side is entrusted to Kenneth L. Wainstein, the assistant attorney general responsible for counterterrorism efforts, who is coordinating with the CIA’s Inspector General, John L. Helgerson, on the probe.

The major issues that need to be addressed are internal to the CIA and the Justice Department. Both made false official statements to a federal court in Virginia as well as to the American public. The question is how deep the deception ran, who masterminded it, and what purposes it served. And neither the public nor Congress should accept an answer from Mr. Wainstein or Mr. Helgerson, because both are far too close to the issues which need to be scrutinized. As Senator Biden already noted, this is a matter which can only be managed by a special prosecutor appointed by Attorney General Mukasey.

Justice Department lawyers involved in the case of Zacarias Moussaoui have been very quick to insist that the disclosures are “irrelevant” because Moussaoui pleaded guilty. The Justice Department lawyers handling these cases have a long track record of hyperventilation and lack of candor dealing with the courts and the public. It’s distressing, but not surprising that they should behave this way. They are after all mimicking the posture that the Administration itself assumes on a political level, and they are thereby continuing a long Bush Administration practice of politicizing the court process.

But their doubtful reassurances provide a reason to pause and think that question through. Over at Slate, Emily Bazelon and Dahlia Lithwick provide just such an exercise, and they do it very persuasively.

So, first stop: the time line. What was happening when the tapes were destroyed? If you heard my interview today on Amy Goodman’s show, you know that the decision occurred at the intersection of two high-profile litigations: the Government had just settled on prosecuting Jose Padilla, and it was facing the demands of the Moussaoui judge, Leonie Brinkema, who was pressing the Government to turn over the tapes, if they existed.

One of the two men tortured on the CIA tapes is Abu Zubaydah, whose confession supplied the main evidence supporting the warrant issued for Jose Padilla’s arrest in May 2002 at O’Hare Airport. Padilla was promptly labeled a “dirty bomber” and an enemy combatant and tossed in a brig for 43 months. When he was finally prosecuted on a conspiracy theory, in a Florida federal court in 2007, Padilla’s lawyers claimed Zubaydah had implicated him under torture. The Justice Department dismissed these allegations as “meritless,” since there was no proof Zubaydah had been tortured. It’s bad enough that the DoJ just “lost” the tapes of Padilla himself being interrogated. It now also seems clear he was first grabbed on the say-so of a crazy person who was willing to say anything to stop the abuse he experienced. One of Padilla’s lawyers tells us that if these tapes had been disclosed, it would have been far more likely that the Supreme Court would have taken up the case for a second time, when Padilla tried to go back to the high court in April 2006.

Next: Moussaoui, who, let’s not forget, faced the death penalty. The same fall that the CIA tapes were destroyed, according to the Post’s timeline, federal district court Judge Leonie Brinkema ordered the government to turn over evidence of specific interrogations relating to the allegations against Moussaoui. His lawyers reportedly wanted to know whether the al-Qaida trio of Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed had inculpated Moussaoui, or failed to name him. According to the New York Times, CIA lawyers told federal prosecutors that the CIA did not possess any such evidence.

That means the two biggest terror trials we’ve had since Sept. 11 were predicated on torture evidence that was then destroyed. The government has argued that al-Qaida operatives cannot be tried because the evidence against them is secret and threatens national security. But the real rationale is much worse: The evidence against them is wholly unreliable.

Now remember that the lawyers acting on behalf of the defendants in these cases all went to court not only to get production of this evidence, which would have had obvious relevance to their cases, but also to insure that the Government was not destroying evidence. The response from the Bush Justice Department? It argued that the lawyers were whacky conspiracy theorists to even suggest that documents might be destroyed. Of course, we now know that the CIA was very actively engaged in discussion of destroying the evidence throughout this time, and this is already some evidence suggesting that the Justice Department’s advice figured significantly in the process—indeed, so did the CIA’s Inspector General.

When the detainees initially asked for this evidence to be preserved in January 2005, the Bush administration opposed their request, saying “this case is utterly devoid of any circumstances warranting such an order” because “there is no evidence of any document destruction in this instant case” and, in fact, the government had “numerous reasons … for ensuring the preservation of the documents in question.” Apparently those reasons weren’t good enough for the CIA. Given that the Guantanamo detainees say that many of them were implicated solely on the basis of other prisoners’ tortured confessions, video examples of that torture would only have helped them. These defendants have argued all along that the evidence against them has no weight because people say anything under torture. The tapes would have made their point graphically, indisputably, unforgettably.

So the Justice Department tells us it all makes no difference. This statement reflects a Justice Department which believes it is an arm of the President, committed to serving his personal will by securing the conviction and destruction of anyone he labels an enemy. It is not a Justice Department that has even the most remote interest in the word “justice.” And its conduct continues to demonstrate this fact every single day. As Bazelon and Lithwick put it: “Those confessions, and others like them, have been the underpinning for much of the government’s legal assault on the rule of law in recent years, from free and open trials, to secret expansions of executive powers.” Those confessions rest upon torture. And this is a truth the Government seeks to deny, to suppress, to eradicate. But in so doing it is waging a war, not against terrorism, but against justice.

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