Balkinization  

Friday, December 21, 2007

Impeccable Timing

Marty Lederman

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes -- which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission repeatedly sought "documents," "reports" and "information" related to the interrogations from the CIA -- but "staff members never specifically asked for interrogation videos."

At one meeting, Lee Hamilton told George Tenet that "the C.I.A. should provide all relevant documents 'even if the commission had not specifically asked for them.'" How infelicitous of Representative Hamilton -- you see, a videotape isn't a "document"!

I urge you to read the entire report from Phil Zelikow, and ask yourself whether the concerted effort by countless government officials, up to and including Alberto Gonzales, Donald Rumsfeld and Steve Cambone, to assiduously avoid mentioning the videotapes to the 9/11 Commission -- in countless meetings and in response to numerous requests -- when obviously those videos would have been the motherlode of the evidence that the Commission was seeking, can possibly be justified. Zelikow wonders whether this didn't violate 18 U.S.C. 1001(a)(1) (prohibiting the knowing and willful concealment of "material facts" in an investigation by any "trick, scheme, or device"). Even if it did not, is there any scenario in which such stonewalling would not have constituted utter contempt for the Commission -- bad faith at a very high and sustained level?

Here's the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson. In other words, they knew the tapes were relevant -- indeed, the most relevant evidence possible -- and that they would be required to produce them if only the Commission and its lawyers somewhere down the line used the word "tapes," or "recordings," or "evidence." But they failed to mention the tapes. And then . . .

. . . as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

That is to say, the CIA waited for a window in which there (arguably) were no pending investigations in which the evidence would be relevant, and then pounced on the opportunity -- the potential gap in criminal law coverage -- to eliminate the evidence. Convenient, isn't it, that there were no extant orders from the CIA leadership, the White House, or the Justice Department, requiring retention of that evidence? Such an order finally came yesterday -- far too little, too late.

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Comments:

To some extent, this is just smoke and mirrors, as the truth of 9/11 is far worse than anything the 9/11 commission was ever going to document.

Do we really believe the CIA is so averse to breaking the law? Sure they will avoid if they can, but this whole tape destruction is simply the tip of the iceberg.
 

Marty:

...obviously those videos would have been the motherlode of the evidence that the Commission was seeking...

What evidence was that?

Are you claiming that Zabudayah was involved in the 9/11 plot?

I thought that the spin of those who oppose waterboarding was that Zabudayah was a mentally ill, low level grunt who provided nothing of use. Is that also your position or do you admit that Zabudayah had and gave key information which helped roll up al Qaeda?

In fact, Zabudayah was a major al Qaeda trainer. The CIA was interrogating him for and obtained information as to the locations of other al Qeada. I am not quite sure what any of that has to do with 9/11 or the prevention of similar attacks in the future unless the 9/11 Commission had expanded its scope to interrogation techniques. I do not recall that section of the commission's report.
 

This is awesome - thank you for obtaining and posting the memo itself.
 

Any precedent on whether videotapes are forms of "documents" or "information" in the context of such requests? If not, who screwed up and didn't use the catch-all "or other relevant materials"?
 

Marty:

. . . as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

Quickly destroyed?

I hate to disturb a juicy conspiracy theory with facts, but the tapes were destroyed a year after the 9/11 Commission Report was issued. However, the destruction did coincide neatly with leaks about the interrogation program to the press.
 

Any precedent on whether videotapes are forms of "documents" or "information" in the context of such requests? If not, who screwed up and didn't use the catch-all "or other relevant materials"?

Good lawyers would have requested "writings" as defined by Federal Rule of Evidence 1001. That covers videos.
 

ML: the CIA waited for a window in which there (arguably) were no pending investigations in which the evidence would be relevant

It's arguable, all right. What is the case in which Judge Brinkema was asking about videos, chopped liver?
 

I’ve been struck by not just who was involved in the 2003 discussions about the destruction of the CIA interrogation tapes, but why that particular who.

Alberto Gonzales - WH
Harriet Miers - WH
John Bellinger - WH
David Addington - WH

Seems to me that if I was somebody like CIA General Counsel Scott W. Muller, and I wanted to know the “legality” of destroying the CIA interrogation tapes, I’d be consulting with the place where such opinions can be found; namely the Department of Justice. You know, the place where all those lawyers hang out.

Yup, if I were looking at the “legality” of destroying the CIA interrogation tapes, what I wouldn’t be doing, was consulting with the folks where “political” decisions are rendered. That being the White House.

But…but…but you say, those folks at the WH were “lawyers”!

Yup, and that is why this tale smells even more fishy than week-old halibut!

When you want to discern the “legality” of something, the “normal” process in a “normal” administration would be to head for the DOJ.

So what we are left with here is that somebody, presumbably from the CIA, but not necessarily so, calls up “lawyers”, not at the DOJ, but at the White House, and asks them, what?

Is it “legal” to destroy these CIA interrogation tapes?

I think not!

But what then could one be asking of folks at the White House, and “WH lawyers” at that?

Could the question to be considered at the White House be:

“What is the political fallout if the existence of these tapes becomes public, and what are the WH legal jeopardy implications if the public finds out that the WH ordered the torture of detainees?”
 

nell:

The defense requested and Judge Brinkema granted a request for materials from Gitmo interrogations. The interrogations at issue did not take place at Gitmo.
 

Professor Lederman

Before this thread predictably devolves into personal attacks or other irrelevant observations, I would respectfully suggest that you review Zelikow’s memo and provide a more balanced and precise assessment. While the mere fact that Zelikow wrote the memo suggests that he thinks the existence of the tapes should have been disclosed to the Commission, nothing in his memo states, or even suggests, that these tapes would have been the “motherlode” of evidence the Commission was seeking.

There are two distinct issues here. Being as Zelikow is an extremely smart guy, I assume his failure to clearly distinguish between these issues was not inadvertent.

The first issue is whether the Commission asked for, or was interested in, information relating to interrogation techniques used on detainees generally, or on Zubaydah or others specifically. Zelikow acknowledges that the Commission “was not investigating the treatment of captives” generally. But he implies at places that the Commission was interested in interrogation techniques to the extent that these might shed light on the credibility of statements made by Zubaydah and other particular detainees.

As far as I can tell, though, there is little in Zelikow’s memo to support this implication. Instead, it appears that the Commission was looking for the most detailed information it could get on the substance of statements made by particular detainees, including Zubaydah. When the information turned out to be less detailed than it expected (or when the information had gaps or self-contradictions), the Commission sought to probe further to understand the nature of the statements that had been made. While some of these followup questions may have touched incidentally on aspects of interrogation techniques (eg, when Zubaydah said “x,” did interrogators ask him what he meant by “x” or how that can be squared with “y”?), there is nothing in Zelikow’s memo to suggest that the Commission directly asked for information on the interrogation techniques used on any detainee. It would have been easy enough, for example, for the Commission to ask for a description of all interrogation techniques used on Zubaydah. It sounds like it did not do so.

This is important because the CIA’s interest in concealing these videotapes does not (at least as far as we know) have anything to do with the substance of what detainees may have said. Indeed, we don’t know that the videotapes actually recorded any substantive information provided by any detainee. And to the extent that they did, presumably the CIA fully preserved that information in a form that has not been destroyed. (Am I giving the CIA too much credit here? I sure hope not.)

The second issue is whether the videotapes were literally responsive to any request that the Commission made. If the tapes did not contain substantive information provided by the detainees, it sounds as if the answer is probably no. Even if they did contain such information, it is not clear that the Commission’s requests required their production. It does not appear that the Commission asked for the production of all documents that contained or reflected statements by Zubaydah (or anyone else). Instead, it seems to have largely left it up to the agencies to determine which documents would best reflect those statements (as indicated by the Raj De email to DOD which Zelikow cites). Thus, if the CIA provided the Commission with all of the substantive information (if any) reflected on the videotapes in another form, it is at least arguable that it was not required to provide the tapes themselves.

Does this mean the CIA or others failed to deal with the Commission in good faith, as you suggest? Seems to me that it is a little premature to make that judgment. Right now I would look at it this way. The Commission asks the CIA what Zubaydah said in his interrogations. The CIA replies (as far as we know, truthfully and completely) that Zubaydah said “x”, “y” and “z.” Should the CIA have added, “btw, you should take those answers with a grain of salt because we tortured him to get them.” Seems to me that might be a little much to expect that degree of good faith. Especially from the CIA.
 

Does this mean the CIA or others failed to deal with the Commission in good faith, as you suggest? Seems to me that it is a little premature to make that judgment. Right now I would look at it this way. The Commission asks the CIA what Zubaydah said in his interrogations. The CIA replies (as far as we know, truthfully and completely) that Zubaydah said “x”, “y” and “z.” Should the CIA have added, “btw, you should take those answers with a grain of salt because we tortured him to get them.” Seems to me that might be a little much to expect that degree of good faith. Especially from the CIA.

If this were litigation between adversary parties, I'd agree. That's when we all parse the requests to the nth degree. The Commission, however, was established to improve the government's anticipation of and responsiveness to emergencies like 9/11. Given that purpose, the CIA had the obligation to cooperate fully, not secretly obstruct. You can criticize the requests in hindsight, but let's not pretend the CIA behaved in any way honorably or even patriotically here.
 

mark field said...

If this were litigation between adversary parties, I'd agree. That's when we all parse the requests to the nth degree. The Commission, however, was established to improve the government's anticipation of and responsiveness to emergencies like 9/11. Given that purpose, the CIA had the obligation to cooperate fully, not secretly obstruct. You can criticize the requests in hindsight, but let's not pretend the CIA behaved in any way honorably or even patriotically here.

You may recall that the mandate of the 9/11 Commission was simply to find out the facts of the 9/11 attacks and suggest ways to prevent similar attacks in the future. The Commission's mandate did not extend to evaluating the entire war on terror. Consequently, the 9/11 Commission can in good faith only ask for information about the 9/11 attacks or similar attacks.

However, there is no evidence that either Zuaydah or Nashiri had anything to do with 9/11 or any similar attacks against the United States. Rather, Zubaydah was an al Qaeda trainer and Nashiri was linked to the USS Cole attack.

Zelikow admits that the Commission initially asked for information concerning 9/11 and the CIA provided summaries of the Zubaydah and Nashiri interrogations which were cited in the final report.

However, Zelikow maintains that he was "dissatisfied" that Zubaydah and Nashiri did not provide much useful information about this attack. Zelikow relates that the Commission subsequently asked for information beyond the 9/11 attacks, but he tellingly never states why the Commission would need such information to fulfill its mandate.

So far as we can tell, CIA fulfilled its legal, patriotic and good faith duties to provide everything Zubaydah and Nashiri knew about 9/11, which did not extend much beyond Zubaydah connecting KSM with a code name used in the 9/11 plot. CIA had no good faith responsibility to give its full cooperation for a fishing expedition outside that mandate.
 

I would hate to have to explain to a federal judge why videotapes were not "information." A videotape, like a DVD, stores "information" of a particular type.

Agreed however that the requests could and should have been better constructed.

And Mark Field's point is dead-on: this was not SUPPOSED to be an adversary proceeding. The CIA did not have the right to treat the Commission as its adversary.
 

Marty, why do you suggest that 1512(c)(1) would be violated only by destruction of the tapes? Under that provision, [w]hoever 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 is culpable.
 

The defense requested and Judge Brinkema granted a request for materials from Gitmo interrogations. The interrogations at issue did not take place at Gitmo.

Where are you getting the information in the first sentence? The videos of interrogations that DoJ recently had to tell Brinkema existed and therefore meant the CIA and DoJ had given her false information in the Moussaoui case also weren't done at Gitmo.

It remains unclear whether the destruction of these other, torture videos in November 2005 had anything to do with the Moussaoui case, though it is intriguing that it was precisely in November 2005 that Brinkema ordered the government to confirm or deny that it had video or audio tapes of certain interrogations, and that CIA responded with a declaration that the US Government does not have any video or audio tapes of the interrogations" of the relevant enemy combatants. But that could be purely a coincidence - as it most likely is if, in fact, the prisoners the recordings of whose torture were destroyed were not on the list of witness enemy combatants Brinkema was asking about. On the other hand, it becomes harder to believe it was a coincidence if in fact one or the other of those individuals was covered by Brinkema's November 2, 2005 order.
 

the cut'n'paste definition of "documents" paragraph used in civil discovery is like a whole page single spaced and would certainly include videotapes. it's shocking that someting wasn't used in requests by the 9/11 comission to the cia, even if the process was not 'adversarial.'

the 9/11 comission was well within its good faith purpose to want to see interrogation videotapes of the persons involved in 9/11, or the interrogations of persons that led to the information that the cia has about the attacks or about al quaeda. whether that's a 'motherlode' is beyond me, but it seems absolutely relevant and important.

why on earth would an interrogation involving torture be videotaped? I mean why would the participants want it recorded? if they were recorded, wouldn't the conduct of the interrogators be in check just out of CYA principles?

Lastly, this is highly juicy so isn't there some chance someone has a copy of these tapes, especially once the order went down to destroy them? -- or will leak what the content of hte destroyed tapes was? (will the cia say destruction was due to automatic policies and not a targeted destruction)?


by the way this is a great web site and I'm glad I found it.
 

Good lawyers would have requested "writings" as defined by Federal Rule of Evidence 1001. That covers videos.

Good lawyers also always provide boilerplate instructions and definitions, developed over years, on all of our discovery requests, which explicitly include videotapes, audiotapes, etc., in the definition. How incompetent were the 9/11 commission members?


(And my secondary question is, how dumb are the people who work for the CIA? If you want to conceal evidence of wrongdoing, you accidentally lose or destroy the tapes. You get your secretary to oops! erase 18 minutes of the tapes. You don't officially destroy it. Not that I'm suggesting they could have done this legally or in good faith; I'm just saying that it doesn't give me much confidence in their competence as intelligence officials if they can't even covertly destroy evidence.)
 

David Nieporent:

Good lawyers also always provide boilerplate instructions and definitions, developed over years, on all of our discovery requests, which explicitly include videotapes, audiotapes, etc., in the definition. How incompetent were the 9/11 commission members?

Was the Dubya maladministration an "adverse party"? Just askin'.....

Cheers,
 

Since Bart seems never to be shy about responding, I'm going to happily take his silence as a concession he had no idea what he was talking about on the point I called him on.
 

come on, if someone spliced together the torture tapes and showed them at the local theater, wouldn't we call it a documentary?

The 9/11 commission was looking for any kind of factual record. honestly.

I don’t think the 9/11 folks were bad lawyers.

I think they are decent people who could not imagine that anyone would video torture.

They didn't realize how sick and twisted some of our people can get.
 

nell/jdl:

BD: The defense requested and Judge Brinkema granted a request for materials from Gitmo interrogations. The interrogations at issue did not take place at Gitmo.

Actually, the Judge who gave the order to which I was referring was Judge Kennedy, not Judge Brinkema.

Sorry for the confusion.
 

Actually, the Judge who gave the order to which I was referring was Judge Kennedy, not Judge Brinkema.

Ok, that's what I thought, your point is inoperative. It still isn't clear whether the destruction of the tapes had anything to do with Brinkema's order, at that very moment, that the CIA address whether it had recordings of particular interrogations. It is possible too that the decision to destroy them just then was overdetermined - there was Brinkema's order, there was Dana Priest's revelations of the secret prisons where the torture took place, there was the very public dispute between McCain and Cheney over torture, which McCain was winning, at least among other things. Rodriguez may simply have decided it had become clear that the tapes could not be seen, could not be acknowledged, and could not be used to identify who in the CIA precisely had performed the torture.
 

Let me tell you, as a litigator, that if I stood before a federal judge or magistrate and told her that I didn't produce an otherwise-called-for videotape because it was a tape and not a "document," I'd probably be sanctioned. Certainly, the ass-chewing I'd get in court would be a sight to behold. At least here in the SDNY/EDNY, "document" is explicitly defined as a matter of the rules in such a way that you couldn't get away with such hairsplitting.
 

At 5:51, Bart DePalma wrote:

"Zelikow admits that the Commission initially asked for information concerning 9/11 and the CIA provided summaries of the Zubaydah and Nashiri interrogations which were cited in the final report."

Am I to believe that a summary could be written without the existence of a transcript or other more detailed written account of the interrogations? Somehow, I doubt the summarizer sat down and took notes from hours of tape and then condensed that information into a document just for the 9/11 commission. Rather, it seems that documents about the tapes (like the posited summarizers notes, for example) existed as surely as the tapes did -- how else could non-Arabic speaking supervisers review the interrogation's findings? If this is the case, the claim that this information was not turned over to the 9/11 commission because they didn't request "tapes" is worse than sophistry, its dissimulation with the intention of obstructing a government investigation. That sounds criminal enough to me.

Of course, until positive evidence that such documents existed comes to light, this is just speculation; although, Mr. DePalma's claim indicates that it is not idle.
 

Zubaydah supposedly either revealed that KSM's nickname was Mukhtar, or corroborated a cable that that arrived at the CIA's Bin Ladin unit on August 28, 2001 reporting that KSM's nickname was Mukhtar.

Also, the New York Times reported that "American officials had identified Mr. bin al-Shibh’s role in the attacks months before Mr. Zubaydah’s capture. A December 2001 federal grand jury indictment of Zacarias Moussaoui, the so-called 20th hijacker, said that Mr. Moussaoui had received money from Mr. bin al-Shibh and that Mr. bin al-Shibh had shared an apartment with Mohamed Atta, the ringleader of the plot."

Of course these tapes are relevant to the work of the 9/11 Commission, and to the criminal prosecution of Moussaoui (and Mottasadeq in Germany). And of course the CIA cannot be taken at its word on a matter so important.
 

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