Balkinization  

Friday, December 07, 2007

Why'd They Do What They Did?

Marty Lederman

After all, haven't they learned from the experience of the past 35 years that it's not the crime but the cover-up that'll get you?

Yes, they have. Let's not lose sight of the big picture. This was not something they did on the spur of the moment. They vetted it with Rockefeller and Harman, for goodness' sake, and then destroyed the tapes after Harman urged them not to do so. And right after Judge Brinkema's orders started hitting close to home and Dana Priest broke the black sites story. [Check out this great timeline from emptywheel -- pay close attention to all that's going on in October/November 2005.] I retract what I said earlier: This was the CIA. They must have gotten DOJ approval (Gonzales, anyway) for the destruction. And the POTUS and/or VP, too. And all of these folks they knew full well what the fallout might be. And they knew about criminal laws involving obstruction. Most importantly, they were actually destroying what might be incredibly valuable evidence for future uses -- valuable for criminal trials, for intelligence investigations, for training purposes, and, most importantly, as a key tile in their vaunted, hallowed "mosaic" of evidence developed to construct an accurate story about al Qaeda.

And yet they chose to destroy anyway, after what must have been a lot of internal debate. Which goes to show that . . . the cover-up is not worse than the crime, and they knew it. Those tapes must have depicted pretty gruesome evidence of serious criminal conduct. Conduct that would be proof positive of serious breaches of at least two treaties. Conduct approved and implemented at the highest levels of government.

Remember, this was late 2005. By this point, they all knew damn well that "the Commander in Chief has the constitutional authority to violate the Torture Act and the Geneva Conventions" would not be viewed as a very compelling defense. Worse yet, their other defense would have been: "A 35-year-old deputy assistant attorney general by the name of John Yoo orally advised me that this was legal."

Obstruction of justice, and the scandal we're about to witness, was a price they concluded was well worth paying.

Comments:

Marty,

I'll let EW know of your fine h/t over here!

A little OT, but related in general, checkout EW's newest post which I'm excerpting - Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law:

"Apparently, Whitehouse actually read the OLC opinions that justified the warrantless wiretap program and continue to justify the Administration's wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here's his description of what he found...

~snip~

Senator Whitehouse says: To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

3. The Department of Justice is bound by the President's legal determinations."

This stuff is a literal bombshell assault on the very premises of our Constitution which our Founding Fathers strived so mightily and honorably to implement.
 

I per usual appreciate this discussion but let's be blunt ... if "Blue Dog" Dems are going to at best tsk tsk like Harman and Rockefeller did here ("uh don't think you should do it" doesn't really cut it) and other Dems will at best cry foul, why shouldn't they destroy the evidence?

Glen Greenwald, who h/t Marty Lederman, over at Salon today linked up to an earlier column where he listed various times the administration obstructed justice like this. But, Congress can't even hold a couple officials in contempt of Congress for refusing to testify.

There are so many "literal bombshells" by now, we can firebomb a "literal city." But, what will it get us? A new President with support from people who would do more of the same, but just less blatantly?

Anyway, sometimes, members of Congress will have to do its job outside of the light of day. Some things are secret. If they cannot be trusted to do this with any credibility, as some of the people mentioned here surely cannot, it will be very problematic.

Including to those who support the secrecy. The people will demand openness or restraint, more than some will wish to give. As with regulation under FDR, credible oversight will save the system being defended. It's in a lot of people's interest -- some not favorites of regulars here -- to demand it.
 

...was a price they concluded was well worth paying.

It's plausible. Obstruction charges are far more obtuse and less ugly than ... bringing up a President (or former President) for War Crimes, yes?

As for going into the breach together, what would you guess would be the reason, if you didn't know the country or the players, just the action-pattern?

One might bet, that they convinced themselves, one way or another, that it was "for the good of the country".
 

Marty:

If the CIA even thought they were getting close to the line of any criminal violation, exactly why would they tape the interrogations, tell Congress that they had taped the interrogations, wait until 2005 to destroy the tapes and then tell Congress that they had destroyed the tapes with no one raising a peep until almost 2008?

However, enjoy your latest faux scandal. Except for some condescending tut tuts from the Dems you keep voting back into office, this will elicit yet another big yawn in DC.
 

The CIA persons appear to have thought that what they were doing was not a crime in 2002 no doubt thanks to the advice from our good friend John Yoo and others. Going along doing the things that would typically be done such as taping etc.

After Abu Ghraib and the number of requests for information about these interrogatiosn, the CIA types got nervous - seems to be the obvious point. If the CIA destroys them on their own, then it is obstruction of justice and they take the fall for that.

So in good Washington fashion they think about whom to tell something to ward off investigations and prosecutions. And they count on a compliant Attorney General like Gonzalez and most likely Mukasey. When Hoekstra and Harmon and others are not willing to give them cover, then they are in a box.


Like the garden variety crack dealer flushing crack down the toilet in a crack house to avoid crimina prosecution, the CIA types here push to be able to destroy these tapes.

Rodriguez is willing to be the fall guy. When nothing happens, he retires quietly. Until now, he will be in the klieg lights and he will say he is a patriot defending the homeland and all that in Congress.

He is the fallguy and if he keeps his mouth shut then he will get a sweet deal - sort of this generations Olly North.

Unless, of course, we find him having committed suicide from depression in the next days or months.
Best,
Ben
 

If the CIA even thought they were getting close to the line of any criminal violation, exactly why would they tape the interrogations, tell Congress that they had taped the interrogations, wait until 2005 to destroy the tapes and then tell Congress that they had destroyed the tapes with no one raising a peep until almost 2008?

Bart, you can make your clever arguments about how there is no definition of torture around here, but I can assure you that the CIA has plenty of people who know the ACTUAL legal definition of torture (not the arugment that is made on right-wing talk show hosts and occasionally by lawyers sympathetic to the Bush Administration) and are quite aware that certain of the techniques approved by the White House placed agents in legal jeopardy.

High ranking government officials don't want to just know what DEFINITELY violates the law, but also what MIGHT be held to violate it. I assure you, they received advice, rather formal or informal, that waterboarding, induced hypothermia, and some of the other techniques had been adjudicated to be torture in the past and may, in the future, be held to be torture again.

This does not mean that they will not take the position at some point that they are not torture. But you should NOT assume that the CIA had no motive to destroy the tapes to conceal evidence of potential wrongdoing. Just because they might have an argument-- which will actually resonate more with right wingers than it will with the courts-- that what they were doing actually did not violate the law doesn't mean that they thought that this was a slam dunk that they could rely on. Rather, they had a powerful incentive to destroy materials that might become evidence of a crime if a judge did not buy the Bush Administration's legal arguments. And I assure you that especially by 2005, that was something that was considered a very serious possibility by policymakers.
 

So why does John Yoo still have his law license and why is he on the faculty at UC Berkeley?
 

dilan:

The policy makers in Congress were fully briefed by the CIA from the outset about the coercive interrogation techniques being used to break and roll up al Qaeda.

The WP is reporting that, in 2002, the CIA briefed Nancy Pelosi (D-Calif.), Rep. Jane Harman (D-Calif.), Sen. Bob Graham (D-Fla.), Sen. John D. Rockefeller IV (D-W.Va.), Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan) on the CIA detention centers and the coercive interrogation techniques being used there, including waterboarding. None protested the coercive techniques. Instead, two wondered of they were tough enough to get the intelligence we needed.

Consequently, the Dem complaints these tapes were destroyed to prevent Congress from conducting oversight on the CIA interrogations is pure self serving horsesh_t. Both the Dem and the GOP leaders in Congress knew what was going on and approved of it.
 

"incredibly valuable ... for training purposes"
 

Bart, you are changing the subject. I did not say the tapes were destroyed to conceal the techniques from feckless congressional Democrats.

I said the tapes were destroyed to conceal what could constitute evidence of a crime if the Bush Administration's arguments re: torture were rejected (which was certainly considered a distinct possibility in 2005).
 

dilan said...

Bart, you are changing the subject. I did not say the tapes were destroyed to conceal the techniques from feckless congressional Democrats.

I said the tapes were destroyed to conceal what could constitute evidence of a crime if the Bush Administration's arguments re: torture were rejected (which was certainly considered a distinct possibility in 2005).


Who else but Congress is going to investigate this?

DOJ approved the CIA interrogation. Why would they prosecute?

The al Qaeda are in Gitmo and do not have the ability nor the standing to sue in court.

The job of oversight and impeachment belongs to Congress. However, the congressional leadership either tacitly or actively approved the CIA interrogation techniques.

Consequently, there is no potential investigation from which these tapes were denied.
 

Who else but Congress is going to investigate this?

DOJ approved the CIA interrogation. Why would they prosecute?

The al Qaeda are in Gitmo and do not have the ability nor the standing to sue in court.

Bart, get out of your world where the courts defer to everything the executive branch and get into the real world, where people make decisions based on what MIGHT happen even if it doesn't coincide with their constitutional theories.

In the real world, there are other things for the Bush Administration to fear in addition to the Congress-- which I agree with you is feckless (but I should mention that in 2005, it was becoming clear that the Democrats might take it over in 2006).

First, in 2008 there will be a new Administration. And that Administration may be anti-torture. An Obama DOJ-- OR EVEN A MCCAIN DOJ!-- could very well prosecute Bush Administration officials for torture. Indeed, this is one of the reasons that they RUSHED the immunity provisions of the Military Commissions Act through Congress in 2006 before the Democrats took over Congress-- obviously, if they really believed there was NO chance of a future torture prosecution, this wouldn't have been such a priority.

Second, you know as well as anyone that the Supreme Court, over and over again, is rejecting your arguments and those of the Bush Administration in terror cases. Do you REALLY know that they won't let a Gitmo detainee bring a 28 U.S.C. Section 1350 torture claim at some point (look at the discussion of torturers as hostis humanae generis in United States v. Alvarez-Machain before answering this)?

Third, there is the distinct possibility of FOREIGN war crimes prosecutions. Indeed, just wait, these are going to happen. Someone like Baltazar Garzon in Spain is going to try it.

Fourth, how about the military commission proceedings themselves? Presumably we are going to try Khalid Sheikh Mohammed, correct? (And possibly Abu Zubaydah as well, correct?) And he is going to say that evidence is inadmissible because he was tortured, correct? And his lawyers are going to request any videos of interrogations, correct?

Now, do you KNOW for a fact that the military commission is going to rule that the defendants or their lawyers have no access to the videos? Do you KNOW for a fact that the DC Circuit and US Supreme Court-- which have the power to review that ruling after conviction under the MCA-- are going to affirm it?

I mean, it is pretty obvious why they don't want these tapes lying around. You need to get your mind out of your world and into the real world and grasp this.
 

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