No Comment — September 29, 2009, 9:58 am

The Incredible, Vanishing Torture Documents

Remember when a federal judge in Virginia was pressing for information about tapes made of CIA interrogations, and—after the Inspector General and Agency lawyers had determined that the tapes had to be preserved—suddenly they went missing? First it was a “couple of tapes,” then perhaps a “half dozen,” and finally the cold, hard truth: ninety-two (92) tapes had been destroyed. This was but one example of a recurrent phenomenon: as legal proceedings get close, the hard evidence of torture mysteriously disappears. Take the case of Jose Padilla, a U.S. citizen held in the United States and ultimately tried in a federal court. A tape showing his treatment at the hands of interrogators also mysteriously went missing when a federal judge pushed for them. A Seton Hall Law School study showed that about 24,000 tapes of Gitmo detainees were made, but most of them seem mysteriously missing. The Washington Post reported that they may have been “inadvertently” taped over. Now the Obama Administration notes that documents showing the torture of prisoners in U.S. captivity have a remarkable proclivity to simply self-destruct, leaving no trace.

Nick Baumann is on the story for Mother Jones:

After President Obama took office, he issued a new FOIA policy, instructing executive branch agencies to “adopt a presumption in favor” of releasing information. The Obama Justice Department reprocessed the ACLU’s earlier request under the new guidelines. But when they did so, department officials discovered that 10 documents listed on the index compiled by the Bush administration were nowhere to be found. The Justice Department noted this in a filing by David Barron, an acting assistant attorney general, which was submitted last week as part of the ongoing ACLU case and first highlighted by Firedoglake blogger Marcy Wheeler. Barron acknowledged in the filing that even more documents could be missing, because “many” of the documents the Obama team did find were “not certain matches” to the ones on the Bush administration’s list.

Even more intriguing is the explanation offered up by a professional Justice Department flack:

“It was impossible to ascertain whether the discrepancy was the result of an error by the prior administration when it created the original…index or whether the prior administration misplaced the documents in question,” Tracy Schmaler, a Justice Department spokeswoman, told Mother Jones. In other words, CIA and Justice Department lawyers might have mistakenly listed documents that never existed in the first place.

In other words, a document that has been scheduled and described in a prior filing in which a claim of exemption from FOIA turnover was claimed, really doesn’t exist. It was just a figment of the imagination of the lawyers who prepared the schedule.

A Justice Department that takes its responsibilities seriously would open an internal probe into how these documents came be to “missing.” Considering all the public interest surrounding them, the likelihood that their destruction was innocent is infinitesimally small. An investigation has to take into account the consistent, unpunished pattern of destruction of evidence that clearly constitutes obstruction of justice.

Let’s just imagine for a second that this is a large scale antitrust investigation targeting a corporation, and the Justice Department learns that critical documents have disappeared. The usual excuses are offered up: “We just can’t find them.” “They were inadvertently destroyed.” What would the Justice Department do? In fact we know from dozens of such cases exactly what the Justice Department would do. Criminal charges of obstruction of justice would be filed and aggressively prosecuted. Prosecutors would argue that the destruction of documents constitutes prime evidence of guilty mind–that those who destroyed them knew they would be used as evidence in a criminal case. Ask Arthur Andersen. We are witnessing a shocking double standard. Justice Department and CIA actors are held to a far lower standard than an ordinary citizen would be. That was the case throughout the Bush years, and there is no evidence of any change under Barack Obama and Eric Holder.

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