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The CIA Obstructs Justice

Right after Thanksgiving I mentioned briefly that a district court judge hearing a terrorism case ordered that the prosecution and the lead defense counsel be given security clearances so they could see secret CIA filings in the case. The judge was reacting to the news that the CIA had lied to her in the Moussaoui trial about the existence of recordings of terrorist interrogations.

Now it turns out that the CIA had tapes of the interrogations, but claimed that no such tapes existed when they were sought by Judge Brinkema and the 9/11 Commission. After that, in 2005, the CIA destroyed the tapes.

The CIA says that they had to be destroyed because (1) they posed a serious security risk to the agents who were recorded; (2) they no longer had intelligence value; and (3) they could expose agency officials to greater risk of legal liability.

The first excuse is a good one for holding the tapes close, not necessarily destroying them. If the CIA has reason to believe that secret material would be made public if it were provided in camera to Judge Brinkema then we are in deeper trouble I thought. Holding out on Congress is more reasonable, since we all expect that certain Congressfolk or their staff would have trouble keeping the video and audio to themselves. But that's still reason merely to hold the tapes close and not to destroy them.

The second excuse also isn't a good reason for destroying the recordings, especially given how much interest there was in Congress about our interrogation techniques. They may not have had any intelligence value, but they would be very valuable to Congress in setting interrogation policy. More than that, the question of treatment during interrogation has been central to a few terrorism trials; that will probably be so for several trials to come.

The third reason is the worst excuse for destroying the tapes. Destroying evidence wanted in court is what sunk Arthur Andersen after Enron. Whether it's reasonable or not to hold out on Congress, actually destroying the tapes when they're wanted for a criminal trial is obstruction of justice. The CIA doesn't get a free pass simply because it's concerned about its own liability.

More than that, this leads to more questions in the Moussaoui trial. He eventually pled guilty and was sentenced to life imprisonment without the possibility of parole (one juror refused to vote for death). Does he now get to claim that he was deprived of justice because the CIA lied? What other prosecutions has the CIA jeopardized now that judges have good reason to distrust submissions from intelligence agencies?

We have procedures in place for the use of secret information in trials. If the CIA has reason to believe that those procedures are not adequate to protect state secrets, it should say so. It should not start lying to courts or to Congress. I sincerely hope that the CIA gets smacked down hard for this one.

Posted by: Gabriel Malor at 03:59 AM



Comments

1

Fair point Gabe.

Now try this hypothetical on for size.

You are a newly minted  U.S. government defense attorney / international law attorney, whatever.

You argue your first cases in court.  You do your best, as best as your good faith and training and ethics will let you.

You keep your legal notes in your office.  All is legal and ethical in your mind.

Then several years later, somehow, the political and legal situation changes.

Suddenly, many very powerful NGO's and the Democratic controlled congress and the liberal half of the judiciary somehow get it in their head that old Gabriel Malor is someone they are going to take a great deal of interest in punishing.  Badly.  Why?   Because the cause you took in good faith is now going to be held against you.  Legally.

So now you are looking at potentially loosing your law license, and getting put on legal and political trial here in the U.S.  Mighty nasty civil and criminal penalties might get ya.  Not to mention all of the international courts will hound you for the rest of your life.  No more overseas trips for you!

Now.  Honestly ask yourself this:  Would getting rid of those legal notes of yours be something you could find to be condonable?

Posted by: The shoe is on the other foot... at December 07, 2007 04:24 AM (RcwYX)

2 "I sincerely hope that the CIA gets smacked down hard for this one."

That's right.  We need our intelligence agencies on a short leash, constantly looking over their shoulders for fear of a politically-motivated gotcha or a leak of identities to the MSM. 

Maybe they do need to be held to account if they destroyed evidence, but I'm sure as hell not going to cheer about it. 

Posted by: See-Dubya at December 07, 2007 04:30 AM (T8DAQ)

3 Gabe -- this tangentially related but, this is about the FBI - CIA agent who looked up Hezbollah"

Assistant U.S. Attorney Kenneth Chadwell didn't indicate why Nada Nadim Prouty, a Lebanese immigrant who once lived in Taylor, wanted the information or what she did with it. But he said four of the inquiries involved files containing the names of confidential FBI informants.

In another development, a federal official familiar with the case said the CIA had access to derogatory information about Prouty before the FBI hired her in **1999**, but failed to disclose it when the FBI contacted the CIA during a background check.

Had the information been disclosed, the official said, the FBI might not have hired her. More perplexing, the official said, is why the CIA hired Prouty away from the FBI.

The CIA declined comment.


http://www.freep.com/apps/pbcs.dll/article?AID=/20071206/NEWS06/712060341

Posted by: topsecretk9 at December 07, 2007 05:29 AM (WWxWa)

4

Dissolve the CIA.

 

Posted by: Cincinnatus at December 07, 2007 07:22 AM (tun6e)

5 "Dissolve the CIA."

The creation of the Office of the DNI was probably the beginning of that process.  It's happening but will take a while.


Posted by: mikey at December 07, 2007 07:50 AM (GSeVd)

6

Are there actually people out there who give a fuck about how we interrogate terrorists?

Posted by: TMF at December 07, 2007 09:22 AM (KTgUG)

7

The CIA says that they had to be destroyed because (1) they posed a serious security risk to the agents who were recorded; (2) they no longer had intelligence value; and (3) they could expose agency officials to greater risk of legal liability.

The first excuse is a good one for holding the tapes close, not necessarily destroying them

"Two can keep a secret, if one is dead." I believe that is Franklin. The modern day equivalent is to shread the file. Files, regardless of their classification, can be had.

Posted by: captkidney at December 07, 2007 09:43 AM (s3v+c)

8 I think dig took this article down. CENSORED!

Posted by: josh at December 07, 2007 09:49 AM (Xmbt2)

9

Don't know who to cheer for - I think the CIA has way too many partisan Democrats who put Bush-bashing above country or even their oath.  On the other hand, I don't think that major terrorism case belong in the courts, and frankly think that the Lynne Stewart case torpedoed the notion that you can trust a defence attorney with a security clearance (hell, I wouldn't trust a prosecutor like Patrick Fitzgerald with secret info).  On the other hand you have Brinkema, the Clinton appointee who bent over backwards and forwards to protect Mousousai at his trial, and who improperly let a juror who was ideologically opposed to the death penalty remain on the jury.  And then you have Malor giving us the benefit of his deep received wisdom.

FUCK. THEM. ALL.

With the barbed cock of Satan,

Posted by: holdfast at December 07, 2007 10:10 AM (eK7/0)

10 See, the CIA is a clandestine intelligence service in a time of war. Is oversight necessary? Of course. But expecting it to behave like a law enforcement agency and be held to that type of standard is, what's the phrase I am looking for?Oh yeah, fucking retarded.

BTW Gabe, what is the rationale for it being okay to hold out on Congress but not a judge?  The judge may not let the cat out of the bag herself but she will be bound to share it or dismiss charges if she sees certain things, right?

Posted by: Drew at December 07, 2007 10:17 AM (hlYel)

11 Muh ha ha ha ha haaaaaa

Posted by: Senator Frank Church at December 07, 2007 10:30 AM (pzen5)

12 The shoe is on the other foot..., lying to a judge and Congress and then, years later, destroying the requested evidence is not the "best as my good faith and training and ethics" will allow. As I wrote earlier, lying to a judge is obstruction of justice. It's also a violation of the rules of professional conduct in every jurisdiction, meaning it opens up a lawyer to discipline from the bar. Your hypothetical is not even close to the situation that the CIA finds itself in.

captkidney, if we can have no secrets, we might as well do away with our intelligence agencies altogether, right?

Drew, Congress may hold individuals in contempt if it chooses, but I don't believe that holding out on it constitutes criminal obstruction of justice like holding out on a judge is. That's the difference. And no, a judge who bases a ruling on secret filings is not bound to share her reasoning.

Also, no one is asking the CIA to behave like a law enforcement agency (at least I'm not). I'm asking it to behave like an intelligence agency which truthfully responds to judicial subpoenas and Congressional inquiries. It does not have a get-out-of-jail-free card simply because it routinely works with state secrets.

Posted by: Gabriel Malor at December 07, 2007 10:39 AM (1Ug6U)

13

I had so wanted to see those tapes on the New York Times website. Damn!

They'll move on to captured terrorists next, once they serve their purpose - poof, they're gone.

Posted by: roy at December 07, 2007 10:50 AM (QBYjk)

14 Tell me again how the CIA is not, publicly at least, a morass of bumbling Inspector Clouseaus?

Posted by: Techie at December 07, 2007 10:50 AM (AV8Z6)

15

They destroyed the tapes?...On orders from Chimpy McHitlerburton, no doubt.

They've been pretty successful, shifting the blame for their own f**kups, so far.

Posted by: franksalterego at December 07, 2007 10:56 AM (68cuZ)

16

Could it be the CIA is finding out that it is not nice to pop NIE surprises on the President?

Sure there are a hundred reasons why that doesn't add up, chief among them that it will only reflect badly on Bush.  But in a political climate where everything anyone does is made to "reflect badly on Bush", there really isn't anything holding him back when a smackdown has to be delivered, is there?

Posted by: sherlock at December 07, 2007 10:56 AM (ojW85)

17

"Also, no one is asking the CIA to behave like a law enforcement agency (at least I'm not). I'm asking it to behave like an intelligence agency which truthfully responds to judicial subpoenas and Congressional inquiries. It does not have a get-out-of-jail-free card simply because it routinely works with state secrets."

Their truthful response should be "fuck off, you're not cleared for this".   That you think otherwise proves what a naif you are.

Posted by: holdfast at December 07, 2007 11:31 AM (Gzb30)

18 I would respectfully suggest that the next republican president do exactly what the Clinton Admin did in '93.

Use government office fund-raisers to determine who in the executive branch are not loyal party members, and force as many as possible out of office.

Reno and Albright completely purged their departments ... the next President should do no less.

Get rid of the clintonistas and most of the problems are solved.

Posted by: Kristopher at December 07, 2007 11:41 AM (jcvPd)

19 Albright?

Wouldn't that have been Warren Christopher?

Posted by: Techie at December 07, 2007 12:16 PM (AV8Z6)

20 "Need to Know" is not the same as "Desire to Know".

Posted by: GarandFan at December 07, 2007 12:17 PM (+tCxF)

21 Yawn.

Posted by: allen at December 07, 2007 12:40 PM (GdcUK)

22

Yep, this is just unacceptable. I'm wondering if it played in role in Porter Goss's resignation. Especially since we've never had a clear explanation on why he stepped down.

Not only did they destroy evidence, they lied to the Court about the tapes. Which may lead to Moussaoui getting a new trial.

Frum quotes the author Gerald Posner who wrote that the interrogation shown in the tapes had Zubaydah reportedly giving out several phone numbers of people who helped him with this terror activities, including several Saudi princes and a Pakistani general.

All of the individuals met their deaths shortly thereafter. I.e, were later killed.

My guess is they destroyed the tapes not because of concerns that the interrogation techniques would have opened the agents up to charges but that the interrogation led to the deaths of the four individuals.

As Eisenhower said, "War will astonish you."

That's for sure.

 

Posted by: ericH at December 07, 2007 12:41 PM (W5R0h)

23 Gabriel - Your idealism and naiveté leave me breathless!

Posted by: MCPO Airdale at December 07, 2007 12:42 PM (p0Yi7)

24 Gabe...

And no, a judge who bases a ruling on secret filings is not bound to share her reasoning.

What if a judge is watching this tape and sees a CIA agent smacking the shit out this guy. Isn't she obligated to do something if she thinks a crime has been committed?

Also, no one is asking the CIA to behave like a law enforcement agency (at least I'm not). I'm asking it to behave like an intelligence agency which truthfully responds to judicial subpoenas and Congressional inquiries.

Sure they are. They are asking the CIA to produce information that could be used as evidence in a trial. The CIA doesn't collect evidence, they collect intelligence. Their sources and methods are very different

Information collected by CIA interrogations could never be used to convict someone in court because of how it is collected. Plus, you'll never be able to let these guys on a witness stand to testify and be crossed examined, if they would even testify against each other which I doubt.

All giving this kind of information to the courts does is provide cheap outs to terror defendants.."Zubaydah said he was innocent!" Well guess what, hardcore terrorists lie to interrogators. You can only draw conclusions on information like that can only be drawn from looking at the totality of information available to analysts. A judge, defense lawyers or a jury can't have that kind of access.

So all releasing this type of material does is let terror suspects walk and open agents up to potential criminal charges. Fantastic!

We can't keep pretending criminal proceedings are the right venue for dealing with foreign national terror suspects. I am not saying I have the answer or there's an easy one but it doesn't appear we are even trying.  The only person I've seen on this subject is Andy McCarthy at NRO.

Did the CIA break the law by doing this? Probably. I don't like it but you know what?  That's why you have a clandestine intelligence service...to do the things others can't.

And no I don't think they get a blank check (see my earlier comment about the need for political oversight).  Ultimately the blame lies with the feckless politicians who want someone to conduct this war but won't give them the tools or backing to actually do it.

Posted by: Drew at December 07, 2007 12:56 PM (hlYel)

25 ericH...

David Frum has a quote from Posner on that subject:

Zubaydah, wounded when he was captured in Pakistan, was fooled in a fake flag operation to believe that the Saudis held him.  Instead of being afraid of the ‘Saudis,’ he demanded to talk to three Saudi princes (one, the nephew of the King, who happened to be in the U.S. on 9/11).  He gave his interrogators the private cell phone numbers of all 3. He did the same regarding the chief of Pakistan's air force.

After the U.S. told the Saudis and Pakistanis of Zubaydah's finger pointing, all four men had tragic 'accidents.' 

If that's the case, I would say justice wasn't obstructed as much as delivered in very personal and deadly ways.

Posted by: Drew at December 07, 2007 01:02 PM (hlYel)

26 Arthur Andersen was not convicted in the Enron scandal.
I'm not sure how your comment about AA matters.

Posted by: Nom de Blog at December 07, 2007 01:26 PM (1tDA2)

27

I have very mixed emotions about the CIA. I tend to believe that they are very political, and no friends of the Bush administration. Having said that, I'm reminded of this poem:

But it's Tommy this, and Tommy that, and Tommy fall be'end. 
 Yet it's "Please to walk in front, sir, when there's trouble in the wind.
 There's trouble in the wind, by boys, there's trouble in the wind.
 O it's "Please to walk in front, sir", when there's trouble in the wind.

We aren't no thin red heroes, nor we aren't no back guards too.
But single men in barracks, most remarkably like you.
And if sometimes our conduct ain't all your fancy paints.
Why, single men in barracks don's grow into plaster saints.

 For it's Tommy this, and Tommy that, and "chunk him out, the brute".
 But it's "Savior of This Country" when the guns begin to shoot.

Posted by: Lokki at December 07, 2007 01:44 PM (wSBsc)

28 Nom de Blog, Arthur Andersen was investigated for obstruction of justice when it began shredding documents during the SEC's investigation into its largest client, Enron. The accounting firm was charged with and later convicted of obstruction of justice by a jury in Texas. The conviction was later overturned by the Supreme Court because the jury instructions were faulty.

Posted by: Gabriel Malor at December 07, 2007 01:52 PM (VSr6C)

29 "Your hypothetical is not even close to the situation that the CIA finds itself in."

Well, OK.  If you say so, I guess it is true.

So since our pronouncements are facts, here is a pronouncement of mine.  You said: "I sincerely hope that the CIA gets smacked down hard for this one."

Well of course you would.  Your sympathies and loyalties lie with the judicial branch, so you support any and all attempts for them to expand their power and influence, regardless.  Much like Nixon improperly attempted to claim executive privilege in Watergate, you are improperly attempting to claim judicial privilege here.

Of course, keep in mind that if you get a job as a prosecutor, or a lawyer for the administration, you really aren't a member of the judicial branch, are you?  So your loyalties couldn't be to the state bar.  You'd have to represent the interests of that yucky co-equal branch of government known as the executive branch.

Good luck resolving your future ethical conflicts of interest.

Gosh!  Pronouncements are fun!


Posted by: The shoe is on the other foot at December 07, 2007 02:02 PM (WaCfp)

30

The CIA advised Congress (intelligence committee) four years ago that they had these tapes and intended on destroying them.  It is only a story now as part of the continuing effort to undermine the White House.

Posted by: polynikes at December 07, 2007 02:02 PM (m2CN7)

31

Forgive me for juming in late ...but I expect more from you than this Gabe.

The judge may be doing what he is supposed to do. Law. I have no problem with his doing that.

But so was the CIA doing they are supposed to do. Intelligence. And I have no problem with that either.

Justice isn't always about the fine details of legality.

You come down on the side of Law. I come down on the side of Intelligence.

In a real sense, this is "fog of war" stuff ...and I do have real issues with the "dot-every-i-cross-every-t" crowd exercising tort reform on a battlefield. Take those metaphors as you will; that's the way I see it.

And kudo's to the CIA for - for once - doing the right thing, and protecting their sources forever.

And all we are doing is proving the weakness and stupidity our enemies accuse us of if we honor this kind of surreal crap in a courtroom.

 

Posted by: davis,br at December 07, 2007 02:17 PM (5xoMO)

32

27 (lokki) ...I love you man.

Heh. GREAT QUOTE.

You know you're on a great blog when people start quoting Rudyard Kipling. Especially that Kipling.

...er, in a manly way of course. Not like Rosetta would (gawd! no).

 

Posted by: davis,br at December 07, 2007 02:24 PM (5xoMO)

33

Appearance of impropriety.  Tapes should not have been destroyed.  If high/friendly names were listed so be it.

The Truth does not scare me. It does scare the Government. 

Government scares me, Mormons not so much.

Posted by: Voter X at December 07, 2007 02:26 PM (igcvF)

34 If high/friendly names were listed so be it.

That's a fantastic plan because we'll get so much cooperation from other governments once we start outing them for helping us at trials of terrorists.

Posted by: Drew at December 07, 2007 02:28 PM (hlYel)

35

33 (voter x): Political correctness. Vapid irrationalism as a way of not-thinking about the issues, regardless of hard reality.

PC scares me, war behaviour not so much.

Posted by: davis,br at December 07, 2007 02:29 PM (5xoMO)

36 Um Drew,  People named in a Terrorist's statement pobably should not be considered a friend, or trusted.

Posted by: Voter X at December 07, 2007 02:33 PM (igcvF)

37 People named in a Terrorist's statement pobably should not be considered a friend, or trusted.

Um Voter X, that's why they were apparently killed. In my book that is pretty much the opposite of considering them 'a friend, or trusted'.

Posted by: Drew at December 07, 2007 02:40 PM (hlYel)

38 Drew, Voter X means the Saudi Prince and other grand high muckety-mucks who were protecting themselves by having the interrogatees murdered. Continued support for "our friends, the Saudis" is enabling wahhabist indoctrination at home and abroad. That's the fruit of Kissinger's realism.

I want to respond to your earlier post, Drew, but I'm now two hours from a final and I still have to study. Stop distracting me; my willpower is low.

Posted by: Gabriel Malor at December 07, 2007 02:46 PM (VSr6C)

39 Drew, Voter X means the Saudi Prince and other grand high muckety-mucks who were protecting themselves by having the interrogatees murdered.

Gabe,

I am not sure that's what he meant because the 4 who were killed weren't 'interrogatees' or in custody. They were people Zubaydah thought were his get out jail free cards.

The Saudis and the Pakis found out they had terrorist agents in their midsts and offed them.  Rember AQ hates the Saudi Royal family and the Pakistani government as much, if not more, than they hate us.

Of course those governments aren't 'friends' and Kissenger sucked (but that's a much longer post) but we do have some common interests. And at the moment they are the only game in town. It looks like they did some wet work for us (and themselves). Repaying them by broadcasting that to the world in open court isn't going to get us more help in the future.

Now go study and good luck.


Posted by: Drew at December 07, 2007 02:58 PM (hlYel)

40

You come down on the side of Law. I come down on the side of Intelligence.

Okay, but the government is supposed to come down on the side of Law.

Why did the CIA lie (if the account of what occurred is accurate) to the Judge and to the Commission about the tapes?

 

 

Posted by: ericH at December 07, 2007 03:01 PM (W5R0h)

41 btw Gabe...

There are like 3 to 4 thousand Saudi Princes. It's not like every Prince is a high level guy with his hand on some lever of power. There are factions within the royal family and the government. It wouldn't be right to assume that the ruling group were in league with these 3 guys.

Now study.

Posted by: Drew at December 07, 2007 03:04 PM (hlYel)

42 I'll take another swing at it erich....

To protect sources. To protect methods. To protect information. To protect allies. To protect agents.

Are you seeing the picture?

"There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
                                                -Stuff Justice Jackson Actually Said
                                                 Terminiello v. Chicago

Posted by: Drew at December 07, 2007 03:11 PM (hlYel)

43 Gabriel Malor,

Next time it will be shorter if you just say "Yeah, that's right. My bad for insinuating a falsehood."

Arthur Andersen was found not to have been guilty of breaking the law by a competent court exercising appropriate jurisdiction. The fact that an investigation took place is irrelevant. The fact that they were found guilty at the trial court level is irrelevant.

For somebody who cares so much about the law you're playing fast and loose on this occasion.

Posted by: Nom de Blog at December 07, 2007 03:16 PM (1tDA2)

44

To protect sources. To protect methods. To protect information. To protect allies. To protect agents.

Okay, but tell the Judge and the Commission that. I.e., claim national security concerns.

That's what the Administration has done re challenges to the wiretapping program.

 

Posted by: ericH at December 07, 2007 03:52 PM (W5R0h)

45 Okay, but tell the Judge and the Commission that. I.e., claim national security concerns.

And set up a legal fight they won't win. Great plan.

They reported the tape to Congress and said they intended to destroy it. They should have just done it sooner.

Posted by: Drew at December 07, 2007 03:57 PM (hlYel)

46

TMF says: "Are there actually people out there who give a fuck about how we interrogate terrorists?"

I don't think that's the point, but it's not surprising to hear it from you and others.

I just don't think we can be lecturing the world about how wonderful democracy and freedom is, while at the same time, doing damn near anything we want, regardless of our own constitution and established laws...in the name of  what we refer to as "necessary" interrogations of who we think may be terrorists.

The world is watching and we look like hypocritical fools when this kind of thing happens. And when the President says he had no idea it was going on, it only compounds the situation by lessening our credibility.




 

Posted by: Tom at December 07, 2007 04:07 PM (1kwK7)

47

And set up a legal fight they won't win. Great plan.

Jeezus, at the risk of sounding like a pompous fart, if the law says so, the government must follow the law.

It does seem to me though, that on second blush, we (okay I) need to scale back my statements. The CIA claims that they told Judge Brinkeman about the tapes. They also reportedly told the 9/11 Commission about audio tapes and transcripts and that they gave everything the Commission requested.

Like most stories, the initial reports are not the most accurate.



 

Posted by: ericH at December 07, 2007 04:09 PM (W5R0h)

48 Drew,
I don't think they presented the tapes to Congress or to the 9/11 Commission, who asked for ALL evidence in 2004. They were made in 2002 and destroyed in 2005.

One of the real problems is that the tapes represent evidence, good or bad, that the defense will never see, which under our laws, they're entitled to review.

It's illegal to destroy such evidence.

Posted by: Tom at December 07, 2007 04:11 PM (1kwK7)

49

In the future, how do we study the war on terror/past, if critical information is destroyed?

I for one would like to get a look at the Clinton N.I.E.'s that Sandy Burger borrowed then destroyed.

Burger was trying to protect the President, and by extension the faith in the U.S. Governmental system. Should he have gotten the pass that he got?

Posted by: Voter X at December 07, 2007 04:16 PM (igcvF)

50 ericH says: "They also reportedly told the 9/11 Commission about audio tapes and transcripts and that they gave everything the Commission requested."

That's not true.

The commission asked for everything, but did not get the tapes.

The New York Times has discovered that the CIA destroyed “at least two videotapes” showing agents using severe interrogation techniques on terrorism suspects. Those interrogations were part of the evidence in the official 9/11 investigation, yet the CIA never told the 9/11 Commission of the existence of the tapes or transcripts. The agency cited a “serious security risk” for destroying the evidence.

Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005.

“The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice.


Posted by: Tom at December 07, 2007 04:22 PM (1kwK7)

51 erich and Tom,

I get what you are saying. In my first comment on this subject I wrote:

Did the CIA break the law by doing this? Probably. I don't like it but you know what?  That's why you have a clandestine intelligence service...to do the things others can't.

And no I don't think they get a blank check (see my earlier comment about the need for political oversight).  Ultimately the blame lies with the feckless politicians who want someone to conduct this war but won't give them the tools or backing to actually do it.

I am not arguing the facts just making a different value judgment on what it means than you guys and Gabe are.

As for this Tom:

One of the real problems is that the tapes represent evidence, good or bad, that the defense will never see, which under our laws, they're entitled to review.

There was never any guarantee the defense would see it. The judge would have screened it first. Unless I've missed it, there's no proof that the tape held anything, the defense was just fishing.

By your definition of what the defense is entitled to we will never try any terror suspects in court (which for the most part is fine with me because I don't think foreign nationals accused of terrorist acts should be tried in civilian courts) because they can never see all the government material that is normally involved in a criminal prosecution. It the same reason home grown spies never go to trial for the death penalty, we can't let the evidence out in open court, so deals are cut.

Posted by: Drew at December 07, 2007 04:22 PM (hlYel)

52 Who here, if arrested as a "suspected terrorist," and after being interrogated while being taped, and being completely exonerated by those interrogations...found out the tapes had been destroyed before your defense council could review them...would say it the destruction didn't matter?

Because, as TMF says: "Are there actually people out there who give a fuck about how we interrogate terrorists?"

We're supposed to be better than the bad guys...and we're not acting like it.

Posted by: Tom at December 07, 2007 04:25 PM (1kwK7)

53 In the future, how do we study the war on terror/past, if critical information is destroyed?

Wow Voter X you've really changed your tune. You should have taken up Gabe's lifeline (though as I pointed out it was incorrect).

I'll type this slowly so you can understand, the point of a war or national defense is not to provide fodder for historians, it's to protect the nation.

Burger was trying to protect the President, and by extension the faith in the U.S. Governmental system. Should he have gotten the pass that he got?

Do you really think they are the same? Really?  Protecting our ability to maintain the support of other governments and all the other positive benefits I've listed in several posts equal protecting the political legacy of one man and possibly his wife's elective viability? That's the case you are making?

Posted by: Drew at December 07, 2007 04:26 PM (hlYel)

54 Drew says: "To protect sources. To protect methods. To protect information. To protect allies. To protect agents."

Are you saying the identities of the taped agents and sources couldn't be altered or eliminated entirely? And why would we care about the "methods" if they're legal? And the information could easily be protected, just as other intelligence is right now.

C'mon...we see it every day.

Posted by: Tom at December 07, 2007 04:27 PM (1kwK7)

55 Drew says: "There was never any guarantee the defense would see it. The judge would have screened it first. Unless I've missed it, there's no proof that the tape held anything, the defense was just fishing."

The defense is entitled to ALL evidence under our laws.

Just as the prosecution is also entitled to ALL defense related evidence.

You can't pick and choose what evidence you turn over...not if you're planning on being tried in an American court of law.

Posted by: Tom at December 07, 2007 04:30 PM (1kwK7)

56 Drew,
By the way: Even in a military tribunal the evidence is the evidence, good, bad or ugly.

You don't get to pick, choose and destroy what you don't want the other side to see.


Posted by: Tom at December 07, 2007 04:32 PM (1kwK7)

57 Who here, if arrested as a "suspected terrorist," and after being interrogated while being taped, and being completely exonerated by those interrogations...found out the tapes had been destroyed before your defense council could review them...would say it the destruction didn't matter?

Wow, stealing a few bases their Tom.

First of all he Zubaydah wasn't arrested, he was captured. Second of all he wasn't exonerated of anything. Do you even know who he is?

Now you might be making a strawman argument about some mythical American citizen swept up in a terror raid and that also steals a few bases. First, as far as we know it's happened once (to Padilla) and he wasn't 'exonerated' but rather convicted.

Just for the record, when it comes to US citizens, I am with Scalia in Hamdi.

Posted by: Drew at December 07, 2007 04:34 PM (hlYel)

58 Drew,
My question is straight forward and direct. And as for your comment: ..." mythical American citizen swept up in a terror raid..."

Well, exactly that has happened quite a few times over the past 7 years. Don't you read the newspapers?

You can play with it any way you want, but would you really want the evidence in your own interrogation to be destroyed a the whim of the interrogators?

Answer the question.

Posted by: Tom at December 07, 2007 04:38 PM (1kwK7)

59 The defense is entitled to ALL evidence under our laws.

Just as the prosecution is also entitled to ALL defense related evidence.

Really? I am not a lawyer but that's a new one on me. I did not know that the prosecution gets discovery on the defense.  You may want to call the judge in this case and tell him he fucked up.

According to your theory, a defendant in a terrorist related case can demand to see all classified material the US government has that may be of help to them? 

Keep in mind there's no charge that the government used information from the tape to convict Moussaoui but rather:

Mr. Moussaoui’s lawyers had hoped that records of the interrogations might provide exculpatory evidence for Mr. Moussaoui — showing that the Al Qaeda detainees did not know Mr. Moussaoui and clearing him of involvement in the Sept. 11, 2001, plot.

Are you really for unlimited fishing in classified material by terror defendants?

Posted by: Drew at December 07, 2007 04:43 PM (hlYel)

60 I did answer your question Tom or do you not know what the Hamdi case was about?

Posted by: Drew at December 07, 2007 04:45 PM (hlYel)

61 Well, exactly that has happened quite a few times over the past 7 years. Don't you read the newspapers?

And besides the two cases I mentioned those other cases would be?

Posted by: Drew at December 07, 2007 04:45 PM (hlYel)

62 They told congress about the tapes, said they were thinking about destroying them, and had good reason to. I can't imagine why anyone is making a case about this. Good job, guys, protect your assets, why keep records like that around?

Posted by: Christopher Taylor at December 07, 2007 05:30 PM (hfyfI)

63 Drew says: " I did not know that the prosecution gets discovery on the defense."

Yes, they do.

As for other cases, you've go to be kidding.

We've had them from New Jersey to Miami.

The ones you site are merely the most notorious.


Posted by: Tom at December 07, 2007 05:58 PM (1kwK7)

64

Tom:

We're supposed to be better than the bad guys...and we're not acting like it.

 

Are you kidding me?  The suspected terrorist’s head is still attached to his body, isn’t it?  We still haven’t strapped our women and children with bombs and marched them into groups of their women and children, have we?  We're still the ones trying to minimize civilian casualties, aren't we?

 

If you honestly believe that we’re not better than al Qaeda, then you're a moron.  The mere fact that this guy is getting a trial, rather than being tortured, tied up, and having his head sawed off on videotape is proof that we're better than them.

 

If you honestly believe otherwise, then there are certainly areas of Pakistan where you can live under aQ's more benevolent reign.

Posted by: The Comish (sic) at December 07, 2007 06:01 PM (n8HhO)

65 Tom,

The other cases from 'New Jersey to Miami' were handled by domestic law enforcement and they do have to play by certain rules, I never said otherwise. There are no cases of US citizens being detained by the CIA are there?

Are you too dense to see the difference between a domestic prosecution and an intelligence interrogation of a foreign national held outside the jurisdiction of the United States?

Now, how about an answer to my question:

Are you really for unlimited fishing in classified material by terror defendants?

Posted by: Drew at December 07, 2007 06:08 PM (hlYel)

66 Use government office fund-raisers to determine who in the executive branch are not loyal party members, and force as many as possible out of office.

President Clinton cleared house and he should have - you can't implement policy well or at all in some cases with your drones working against you. If the bureaucracy is opposed to every move you make you're going to have a heck of a time getting anything. This was one of President Bush's biggest mistakes, leaving these guys in their jobs. He should have cleaned house if for nothing else than to clear up the pot fumes.

Posted by: Christopher Taylor at December 07, 2007 06:23 PM (hfyfI)

67

Gabe:

a district court judge hearing a terrorism case ordered that the prosecution and the lead defense counsel be given security clearances so they could see secret CIA filings in the case.

 

As I said in the earlier thread, this was an astonishing violation of the separation of powers.  This Judge apparently thinks her robe includes a crown, so she can do whatever the hell she wants.  That includes usurping executive branch functions.

 

Judges don’t get to rule that they be given security clearance for themselves, let alone that security clearance be given to their clerks and a defense attorney representing a suspected terrorist.  It’s bad enough that our state secrets are often leaked to the New York Times.  This was not an order to produce a limited bit of information related to the lawsuit.  This was an order that the terrorists be provided security clearances so they can get access to whatever information they want directly.

 

If the CIA has reason to believe that secret material would be made public if it were provided in camera to Judge Brinkema then we are in deeper trouble I thought.

 

But the information isn’t just being provided in camera to Judge Brinkema.  She ordered that she, her clerk, the prosecutor, and defense counsel be given security clearance.  So a) the information will amost certainly be communicated from the defense attorney to the defendant, a suspected terrorist, who may communicate that information to the terrorist organizations he's suspected of being a member of; and b) the judge, clerk, and defense counsel will get security clearance, so they can access whatever information they want, regardless of whether it's relevant to the lawsuit.  Talk about giving the foxes free reign in the henhouse.

 

I agree it's a very bad idea to lie to a judge.  In this case, it seems more likely that the CIA people responding to the request for information simply didn't have all the facts.  And the Judge has thrown a hissy fit and gotten her skirt over her head over.

Posted by: The Comish (sic) at December 07, 2007 06:24 PM (n8HhO)

68 Let's get real.

Does anybody here really believe the tapes were destroyed because they were afraid of agents, etc. being exposed?

They did it because they didn't want anybody to see what interrogation methods were being used.

A bigger question is this: At what point did the CIA or the military become the arbitrator, deciding who gets to see what? The 9/11 Commission was told they were given "everything," but in fact, they were not.

Are we a nation governed by a constitution and laws or are we merely an extension of the military complex?

Posted by: Tom at December 07, 2007 07:14 PM (1kwK7)

69 Thanks for playing Tom but I am going to wait for Gabe to come back. You're too dense to bother with.

Posted by: Drew at December 07, 2007 07:31 PM (hlYel)

70 Drew,
And if anyone knows "dense"...that would be you.

*Read up on the law when you get a chance.

Posted by: Tom at December 07, 2007 07:54 PM (1kwK7)

71 Gabriel Malor,

Are you ever going to return to admit that your statement about Arthur Andersen was misleading and that your defense of your earlier misleading statement was horse shit?

P.S. I hope you did well on your exam. I don't give mine until next week but the students sure are eager to finish.

Posted by: Nom de Blog at December 07, 2007 08:20 PM (1tDA2)

72 And if anyone knows "dense"...that would be you.

That's true Tom, I know it when I see it and you have it in spades.

Posted by: Drew at December 07, 2007 09:08 PM (hlYel)

73 MCPO Airdale - returning the favor:
Gabriel - "Your idealism and naiveté leave me breathless!"

As for the rest of you people bitching and moaning about the destruction of documents .... piss off. We're at fucking war, remember? The CIA Clandestine Service (not the desk jockeys in DC) is tasked with getting information that can save lives, for crissakes! Leave them the fuck alone to do what they have to do. If they have to torture some scumbag who recently lopped off the head of an innocent person with a dull knofe ... go for it! Get the information you need to keep them from killing more of us. What the hell is wrong with you people?

Do you seriously believe that handing over to some scumbag apologist for terrorists defense attorney information that could reveal the way we go about our business of intelligence is a smart thing to do? That failure to do so should result in sanctions? If so - the reputation of the legal "profession" is well earned.

Also, Gabe ... I don't recall you being so intensely disturbed over the case of a certain Democrat operative stealing classified documents from the National Archives and then destroying same.

Posted by: Bruce at December 07, 2007 09:13 PM (2q+Ss)

74

I will make this very simple. I do not trust the C.I.A.  The recent track record is not a good one. Leaks, and more leaks.  Now the Prez has more shit to eat due to the C.I.A. 

 

 

Posted by: Voter X at December 07, 2007 09:35 PM (igcvF)

75

Judge: Is there a tape?

CIA: Yes 

Judge: Will you produce it?

CIA: No, National Security operations make that impossible.

Gov. Att: These tapes are not vetted, and may prejudice the jury.

Posted by: Voter X at December 07, 2007 09:35 PM (igcvF)

76

Tom:

*Read up on the law when you get a chance.

I've read up on the law.  Drew's right, and you're wrong.

At what point did the CIA or the military become the arbitrator, deciding who gets to see what?

I think you mean "judge," not "arbitrator."  But the CIA and military got to decide who sees what after Congress passed laws allowing the Executive Branch to declare certain things Confidential.  If you think they shouldn't be allowed to do so, then by all means, write your Congressman.

The 9/11 Commission was told they were given "everything," but in fact, they were not.

You're absolutely right.  Sandy Berger shoved some things down his pants to hide them from the Commission.

Are we a nation governed by a constitution and laws or are we merely an extension of the military complex?

"Military complex"?  You mean like a PX?  Or a gym?

Posted by: The Comish (sic) at December 07, 2007 09:50 PM (n8HhO)

77

Voter X:

I hear you when you say you don't trust the CIA.  But keep in mind the CIA is huge.  It seems very unlikely to me that the CIA and prosecuting attorneys actually made a conscious decision to lie to the Judge.  Much more likely that it went like this:

Judge: Is there a tape?

Attorney: [to Judge] I'll check.

[Days later]

Attorney: [to CIA peon]  Is there a tape?

CIA peon: I'll check.

[Days later.  CIA peon checks for tape.  Doesn't find one.]

CIA peon: [to Attorney]: I don't see any tapes.

Attorney: [to Judge] Nope.  There don't appear to be any tapes.

[months or years pass]

Defense attorney: Judge, it looks like there were tapes.

Judge: Check again, Attorney.

[Attorney checks again.  Different CIA peon goes up the chain of command and someone figures out that there was a tape.]

Attorney: [to Judge]  Woops.  We were wrong.  There was a tape, but it was destroyed years ago.

Judge: In that case, I get to ignore all of the laws passed by the Legislative Branch preventing me from accessing confidential information.  I also get to ignore all the procedures set up by the Executive Branch to protect confidential information.  I want to see whatever I want.  Immediately.  No, you don't get to run a security check on me, my clerk, or the defense attorney.  Because I said so.  [Judge Dredd voice] I am the law!

Posted by: The Comish (sic) at December 07, 2007 11:28 PM (n8HhO)

78 Bust them for destroying evidence. I'm sure they will take one for the team. Because you don't want that shit on You Tube. Sorry.

I think this torture lite stuff has become more trouble than its worth.

You figure they originally have a couple of teams and a few small prisons in E. Europe to do this stuff to get intel. That limited capacity by itself keeps the risk of torture spreading to electrocuting Kabul cab drivers to a minimum. Hey, were at war and these religious nutballs won't talk! The American people are demanding results! What's the CIA for if it can't break the law overseas once in while?

Forward to 2007. More press than you can imagine for how many water boardings? Less than 10?

Anyways, the Law is great. So when you're having a heart attack make sure your wife stops at every stop sign, doesn't turn on red, etc.

Oh, and BTW, the Law very often doesn't actually deliver any justice...they just reward the people with the stronger paperwork and fatter bank account.





Posted by: Harun at December 08, 2007 01:59 PM (KLCHr)

79 Drew at 24 writes:

What if a judge is watching this tape and sees a CIA agent smacking the shit out this guy. Isn't she obligated to do something if she thinks a crime has been committed?


No, she has no more legal obligation than the rest of us when we witness a crime. Although, now that I think of it, a clever strategy would be to call the judge in an unrelated terror case and ask her to testify about what she saw in the video. I'm sure that's not possible, but off the top of my head, I can't say why.

They are asking the CIA to produce information that could be used as evidence in a trial. The CIA doesn't collect evidence, they collect intelligence. Their sources and methods are very different

Information collected by CIA interrogations could never be used to convict someone in court because of how it is collected. Plus, you'll never be able to let these guys on a witness stand to testify and be crossed examined, if they would even testify against each other which I doubt.

All giving this kind of information to the courts does is provide cheap outs to terror defendants.."Zubaydah said he was innocent!" Well guess what, hardcore terrorists lie to interrogators.
...
So all releasing this type of material does is let terror suspects walk and open agents up to potential criminal charges. Fantastic!

The information was not requested as evidence of guilt, but rather preliminary evidence (essentially background information on which other inferences and evidence rests).

And you're making an assumption that judges and juries would just throw up their hands and say "Well, Zubaydah said he was innocent!" which is a bit silly. In criminal courtrooms all across the country, defendants stand up and swear that they are innocent and, in fact, go on to introduce truckloads of evidence trying to prove it. That doesn't mean we should outlaw pleas of innocence in criminal court. The point of a trial is for a factfinder to see if the prosecution can convince beyond a reasonable doubt that a crime has occurred. Just because we want terrorists to be convicted, doesn't mean we get to deprive them of the opportunity to introduce a reasonable doubt.

We can't keep pretending criminal proceedings are the right venue for dealing with foreign national terror suspects. I am not saying I have the answer or there's an easy one but it doesn't appear we are even trying.

Al-Timimi isn't a "foreign national terror suspect." He was born in D.C. and taught in Falls Church. The criminal justice system is exactly the right place for dealing with him.

Posted by: Gabriel Malor at December 09, 2007 05:52 AM (1Ug6U)

80 davis,br at 31 wrote:

The judge may be doing what he is supposed to do. Law. I have no problem with his doing that.

But so was the CIA doing they are supposed to do. Intelligence. And I have no problem with that either.

Justice isn't always about the fine details of legality.

You come down on the side of Law. I come down on the side of Intelligence.

I'm not convinced we can't have all the intelligence we want legally. As I wrote in the newest post on this topic, "Volumes of legislation provide the CIA plenty of legal cover for its activities. In fact, it has much greater latitude in its activities than others and greater protections from disclosure and liability than the rest of government; it therefore enjoys quite a lengthy leash."

More than that, if the CIA needs more leeway, it can ask. That you think it should be allowed to do this type of thing (destroy evidence) and I don't means that it's a policy question--the very thing we have a republican form of government to take care of. It doesn't get an exemption from control by Congress and the Executive just because it wants one.

This is related to what Drew and Voter X were talking about when they discussed whether the CIA should have claimed state secrets privilege instead of lying about the tapes. Drew didn't like the fact that the CIA might lose on that claim of state secrets. It sounds like he wants to change the law, and of course, that's the point of having Congress.

(Incidentally, Drew, the states secrets privilege is doing very well. It almost never gets overridden. In fact, it's so successfully been used by the Bush Administration that Arlen Specter and Ted Kennedy are pushing a bill that would change the law--which is entirely developed caselaw at the moment).

Posted by: Gabriel Malor at December 09, 2007 06:10 AM (1Ug6U)

81  Drew at 59 writes (the first two sentences are quotes from earlier posts):

The defense is entitled to ALL evidence under our laws.

Just as the prosecution is also entitled to ALL defense related evidence.

Really? I am not a lawyer but that's a new one on me. I did not know that the prosecution gets discovery on the defense. 

"Discovery" is typically thought of in terms of civil cases, rather than criminal. In criminal cases, the defense is generally entitled to see what evidence is being used to convict him. For reasons of process (obviously), he must also make his evidence available to the court (and through the court to the prosecution).

The case you linked Drew is an amusing one, but not an unusual one. The defense had no obligation to show the prosecution the transcript before using it to impeach the testimony of the police detective.

The references to ALL evidence above are, to my knowledge, incorrect. The judge will get access to ALL the evidence in a case, but there are situations in which either the defendant or the prosecution will be kept from seeing particular evidence.

Posted by: Gabriel Malor at December 09, 2007 06:19 AM (1Ug6U)

82 bruce at 73 writes:

Also, Gabe ... I don't recall you being so intensely disturbed over the case of a certain Democrat operative stealing classified documents from the National Archives and then destroying same.

I wasn't blogging back when Sandy Berger was doing his thing, so I'm not surprised that you can't recall me being intensely disturbed by it. You're a clever, clever man, bruce.

Of course, you kind of bring up a point in my favor. We rightly decried Berger's actions because we thought they were both taken for political purposes and to cover his on butt legally. That doesn't differ much from Rodriguez's rationale for destroying the interrogation tapes.

That isn't to say that the two events are identical. Obviously, Berger's sneaking about the National Archive as a mere citizen without portfolio (at the time, if I remember correctly) is not the same thing as the DDO acting in his official capacity. And of course, we don't like Berger and cover-ups that help Democrats, whereas we're much happier about potential lawbreaking that aids the War on Terror.

Posted by: Gabriel Malor at December 09, 2007 06:29 AM (1Ug6U)

83  The Comish (sic) writes:

But the information isn’t just being provided in camera to Judge Brinkema.  She ordered that she, her clerk, the prosecutor, and defense counsel be given security clearance.

She only did that after the CIA denied her the chance to see evidence in chambers. It's not like she decided on a whim that the prosecution and defense should be able to dispute the CIA's filings in her courtroom. She has good reason to distrust those filings.

the judge, clerk, and defense counsel will get security clearance, so they can access whatever information they want, regardless of whether it's relevant to the lawsuit.

That's not how security clearances work. It's not a like a library card; the person must have a need to know the information that they seek. They can't just browse through the secure files.

Posted by: Gabriel Malor at December 09, 2007 06:36 AM (1Ug6U)

84 Finally, anyone who used a variation of "how naive" to respond to my post get bonus points for originality and depth of argument. Thanks for contributing.

Posted by: Gabriel Malor at December 09, 2007 06:38 AM (1Ug6U)

85
Unless those tapes in some way contained exculpatory evidence for Moussaoui  their destruction is irrelevant. Stop shilling for the NYT, malor.

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