Balkinization  

Friday, December 07, 2007

The Questions that Beg to Be Answered

Marty Lederman

1. Was it unlawful? Criminal? Well, if the "several officials" who spoke to the Times are correct, and the tapes were destroyed "in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy" (which is almost certainly the case), then yes, it likely violated several statutes. Perhaps the most on-point is 18 U.S.C. 1512(c)(1), enacted as part of Sarbanes-Oxley, which makes it a felony to "corruptly alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, . . . with the intent to impair the object’s . . . availability for use in an official proceeding." The proceeding in question -- be it a criminal case or investigation, a legislative investigation, an executive branch investigation, a 9/11 Commission investigation, etc. -- need not be pending at the time: it's enough that it's foreseeable. For more on such questions, see the handy chart on page 364 of this casebook excerpt written by my colleague Julie O'Sullivan, and her discussion of the new 1512(c)(1) on page 369.

2. What precipitated the destruction in late 2005? Well, if I had to guess, I'd say this.

3. What might come of all this? For a while now I've been thinking that, within the next 10 to 20 years, it will be common for legislatures to enact laws requiring videotaping of government interrogations and other law-enforcement interactions with private persons. There's not much political stomach for it now (and the intelligence community is the last place where such laws will be enacted); but there will a movement toward it soon, and cases such as this will spur the momentum. No, it's not a panacea, but it's a really appealing good-government initiative. Like DNA evidence, such rules will both deter governmental misconduct and wrongful accusations, and actually benefit law enforcement agencies when they, for example, obtain valuable confessions. Why have contentious and unreliable trials about what went on in the station house or the police car (which encourages misleading accounts under oath by government officials) when we can just go to the videotape? There's no great argument against it (except for mumblings about broken eggs and omelets); it's an idea whose time is fast approaching.

4. What did the President know and when did he know it? That's the obvious one, right? It's very odd that there's been no mention of it yet. And not only the President -- the VP, the AG, etc. Frankly, it's almost inconceivable that the CIA, which told Jay Rockefeller and Jane Harman they were going to destroy the tapes, did not have a similar conversation with high-level folks in the White House. (DOJ might be iffier, because of the pending subpoenas and all in the Moussaoui case. I can imagine the CIA not telling DOJ of it, for fear that someone at DOJ -- yes, even under Judge Gonzales -- might have actually opined that it couldn't be done. But who knows?)

How long before we start hearing of "plausible deniability"?

Comments:

With regard to what precipitated the destruction, see this excerpt from the AP report:

"The CIA says the tapes were destroyed late in 2005, a year marked by increasing pressure from defense attorneys to obtain videotapes of detainee interrogations. The scandal over harsh treatment of detainees at Abu Ghraib prison in Iraq had focused public attention on interrogation techniques.

Beginning in 2003, attorneys for al-Qaida conspirator Zacarias Moussaoui began seeking videotapes of interrogations they believed might help them show their client wasn't a part of the 9/11 attacks. These requests heated up in 2005 as the defense slowly learned the identities of more detainees in U.S. custody.

In May 2005, U.S. District Judge Leonie Brinkema ordered the government to disclose whether interrogations were recorded. The government objected to that order, and the judge modified it on Nov. 3, 2005, to ask for confirmation of whether the government "has video or audio tapes of these interrogations" and then named specific ones. Eleven days later, the government denied it had video or audio tapes of those specific interrogations."

AP Report
 

Another question begging for an answer - will the court do anything about this?
 

Jessica Silbey has written some very interesting work on videotaping interrogations. Though I agree with your points, people watching video may be no more able to recognize some kinds of coercion than they can when reading a transcript or description, because (for example) they just don't believe that an innocent person would ever make a false confession. Or repeated exposure may desensitize, as with the Rodney King jury. This is not to say that videotapes are a mistake -- far from it -- but that they change the things we need to worry about.
 

(1) More questions begging to be answered: should those who justified and authorized the "controversial interrogation methods" recorded on those tapes face justice for doing so? I think so; though maybe I've misunderstood him, Mr. Lederman has seemed to say otherwise on occasion in the past.

Destroying evidence seems like an indication of understanding the criminal nature of the interrogations involved. It was part of a conspiracy both to obstruct justice and to further the commission of a crime. I think it would be a travesty if the authors and authorizers of waterboarding policy were prosecuted for the coverup but not for the crime itself.

(2) I think the videotaping requirement idea is excellent, and hope legal scholars and human rights advocates work to see it implemented. Ms. Tushnet says it would change the things we need to worry about. Yes it would: from whether unethical, illegal interrogations are happening, to whether juries will view a given interrogation that way. That would be a good thing. It would be like Miranda -- a signal to all concerned that a legal process is underway that guarantees rights to the accused.
 

Emptywheel's timeline should be consulted.
 

Slightly OT:

Prof. Lederman: 3. What might come of all this? For a while now I've been thinking that, within the next 10 to 20 years, it will be common for legislatures to enact laws requiring videotaping of government interrogations and other law-enforcement interactions with private persons. There's not much political stomach for it now (and the intelligence community is the last place where such laws will be enacted); but there will a movement toward it soon, and cases such as this will spur the momentum....

While I was at Boalt, I think one FedSoc speaker (can't remember who) had come by to talk about Miranda and had suggested that videotaping interrogations in lieu of Miranda rights might be sufficient to avoid the Fifth Amendment prohibition on self-incrimination If the interrogation was videotaped, we could see if there was undue coercion (the thought is that people can voluntarily say anything they want, and that no ex post facto exclusion of stupid although "voluntary" admissions is needed....)

I disagree.

Cheers,
 

Marty:

1&2) Your second paragraph answers the first. CIA did not want the same felons who leaked the classified information to Priest to leak the tapes. Consequently, the destruction of the tapes, which was disclosed to Congress, was in reaction to leaks and not to any "official proceeding."

3) Videotaping interrogations has been rejected by every law enforcement agency across the nation. Why exactly would CIA agree to do so? Indeed, it is puzzling why CIA did it in these cases.

After the Rodney King incident, I am not at all surprised that CIA destroyed these tapes to avoid a leak to the press.

If you saw the entire video tape of King's confrontation with the police, you would have seen a very large King continue to come after smaller police officers over and over again until the police had to literally beat him to the ground to stop the advance. The criminal jury for the officers saw that entire tape and acquitted.

However, the press only showed a snippet of the tape with the beating without any context. The result was misleading to say the least and caused riots and made a hero out of a thug.

Let us say that that the CIA tape included the entire interrogation of Abu Zubaydah consisting mostly of mudane and ineffective questioning, 30 seconds of waterboarding and then a flood of intelligence including identification of 9/11 co-conspirator Ramzi bin al Shibh, who along with Zubaydah provided the intelligence to capture KSM, who in turn gave up several cells.

The press will only show the 30 seconds of waterboarding and nothing else. You will not hear how Zubaydah refused to answer questions prior to the waterboarding and most certainly not hear about how the waterboarding led to intelligence which enabled us to round up much of al Qaeda. Indeed, the current press reports about these tapes are studiously ignoring these key facts. In doing so, the press would turn this vicious mass murderer into a martyr.
 

For those who are interested in how the CIA captured Abu Zubaydah, the debate between CIA and FBI over how to interrogate Zubaydah and how the CIA broke Zubaydah with coercive interrogation techniques resulting in intelligence bonanza which stopped a second wave of al Qaeda attacks on the United States and allowed us to roll up KSM and much of al Qaeda, I would recommend reading "The Terrorist Watch" by Ronald Kessler (2007), pages 44-50.

Zubaydah was the first terrorist leader against which the CIA used the recently approved coercive interrogation techniques, which is probably why they videotaped the interrogation as template.
 

After the Rodney King incident, I am not at all surprised that CIA destroyed these tapes to avoid a leak to the press.

Ummm, the Rodney King videotape wasn't done by the police.

Not to mention, maybe there's some that disagree, but I'd say we're better off in getting videotapes of gummint misconduct, and making such records public. Why those that disagree do disagree is a bit of a mystery though....

Cheers,
 

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