Balkinization  

Tuesday, December 18, 2007

Willful Blindness

Marty Lederman

The persistent theme of stories about the CIA tape destruction is that countless government officials "advised" the CIA not to destroy the tapes . . . but no one actually instructed the CIA not to do so, nor, presumably, did anyone go so far as to tell the CIA that it would be unlawful to destroy the tapes.

In the category of "shoes that were bound to drop eventually," we now learn from the New York Times that -- surprise! -- the matter was discussed by not only Harriet Miers, but also John Bellinger (when he was NSC General Counsel), White House Counsel Alberto Gonzales and, of course, David Addington. What did this august group "advise" the CIA?:
It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

Of course, if there was "vigorous sentiment" from some White House lawyers among those four (and who do you think that would be?) that the tapes should be destroyed, such "sentiment" would understandably be seen as a green light at the CIA. Congress must get to the bottom of that.

But even if no such "sentiment" was expressed, more important, perhaps, are the dogs that have not barked (not yet, anyway) -- those things that are conspicuous by their absence from the story as we know it so far:

First, as noted above, there was plenty of "advice," but it appears that no one in any position of authority, inside or outside the CIA, actually instructed the CIA not to destroy the tapes. Why not? Perhaps because they were hoping their advice would not be heeded?

Second, given all the discussion and uncertainty about the issue, the logical, natural, thing to do would have been to ask the Justice Department for its legal views on the question -- to seek an official OLC opinion, in particular, which would be informed by the views of the DOJ lawyers who were responsible for compliance with court orders concerning preservation of evidence. Yet as far as we know, everyone assiduously avoided asking DOJ for its views. Why? Perhaps because no one wanted to hear those views . . . and because once those views were provided, the CIA would have no choice but to preserve the tapes.

Third, a slew of people evidently advised the CIA that it would be unwise or even illegal to destroy the tapes. Thereafter, most or all of those officials, in the CIA, in the White House, in Congress, etc., eventually found out that the CIA did destroy the tapes -- and not a single one of them did a thing about it. Why not? Well, perhaps it's because this entire group finally issued a collective sigh of relief that, finally, the CIA had failed to heed their "advice."

Comments:

I bet you they stashed away a copy , if not complete then at least of the "the best of the" kind, for VP Cheney so he can have something to enjoy in his retirement. Gotta have.

Seriously it would be real nice if somebody started to follow on what Al Gore and Sy Hersh hinted at in their public appearances. That is torture to the point of death. Either disprove it or somebody has to answer for it. This is far more serious than waterboarding.
 

As other commentators have noted whatever was on the tapes clearly indicated something far more obvious than probably obstruction of justice charges. And since there is no clear order saying "Don't destroy these tapes..."

I suspect that the tapes contained clear evidence of torture, something that no about of spin could distort.

Like the previous poster, I'm also sure there are a few digital copies floating around. I tend to think of the CIA as like a more malevolent form of the Keystone Kops. Competence, generally isn't their strong suit. Venality, by contrast, is.

Anyway, I think the Bushies were trying to head off a "Pinochet problem," that is, the tapes had clear evidence of prosecutable war crimes, which meant everyone in the administration who can be connected to the tapes will have trouble leaving the US.

If a few wandering copies surface things could get very interesting.
 

"Thereafter, most or all of those officials, in the CIA, in the White House, in Congress, etc., eventually found out that the CIA did destroy the tapes -- and not a single one of them did a thing about it."

18 U.S.C. 4. Misprision of a felony.

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
 

-wg-:

I bet you they stashed away a copy, if not complete then at least of the "the best of the" kind, for VP Cheney so he can have something to enjoy in his retirement. Gotta have.

Given this, I have to say I'm just a bit curious as to why you thought my comments on a previous thread a bit overboard. Care to explain? What was it that particularly irritated you? If you don't want to discuss it here, my e-mail addy is zuch -at- ix -dot netcom -dot- com....

Cheers,
 

-wg-:

That is torture to the point of death.

I've posted on this previously, as have others, including Prof. Balkin.

However, this will lumped under the reassuring rubric of "thirty seconds of discomfort" by the usual suspect....

Cheers,
 

Rather than legal willful blindness, I would call it political plausible deniability.

There is no requirement that either the WH or Justice sign off on disposal of CIA records. CIAs own attorneys signed off on the disposal, opining that it violated no law. Indeed, there is no reason to believe that this disposal violated any law.

There is no legal reason to expect future criminal investigations where these tapes would be required as evidence because the President, DOJ and Congress all affirmatively or tacitly signed off on the CIA interrogation programs.

The WH debate over whether to dispose of the tapes was political in nature over the appearance of impropriety rather than any actual violation of the law.
 

"We could do that. That could be done. But it would be wrong." Hmm. Where have I heard that before?
 

Bart,

Destroying evidence of a crime is a crime in and of itself, conspiracy and / or obstruction.
 

charles:

What crime? As I have pointed out before, waterboarding does not fall under the definition of torture used in that statute.

Moreover, I believe that destroying evidence of a crime is a specific intent crime. Given that Congress and DOJ signed off on the underlying CIA interrogation program which the tapes are evidence of, CIA had no reason to believe that a crime had occurred. Good luck proving the intent to destroy evidence of a crime.

Finally, DOJ and Congress are the only folks who can criminally prosecute a destroying evidence charge against CIA. Given that they both signed off on the program, there is not a chance in hell of such a prosecution. It would not pass the laugh test.
 

Just because they are all criminals does not mean that no crime has been committed. It was a crime to authorize water-boarding and torture. It was a crime to know about water-boarding and not say anything (as was the case with leading Democrats). It was a crime to destroy the evidence. It was a crime to know of the destruction of evidence and not say anything. The whole lot of them, including those Democrats who are leading the Congressional investigations, are complicit in a massive violation of international law and the Constitution. Impeachment is entirely in order, though of course no one in the Democratic Party leadership is talking about it. Again, just because they are all criminals, does not mean there was no crime. It just means that any accountability must be reached through different forms than self-investigations by the Justice Department or self-investigations by Congress.
 

Who do you think you're kidding Bart?

After Abu Ghraib there was no reason to think that waterboarding someone might be torture and *might* be a crime?

Waterboarding clearly is torture by any honest account, but set that aside -- 18 USC 113 makes it an offense to commit simple assault.

I'd also suggest that you read 18 USC 371 carefully, because "do any act" is not an ambiguous figure of speech.
 

Set against the "willful blindness" is Robert Bennett's statement on behalf of Rodriguez: "Robert S. Bennett, a lawyer for Mr. Rodriguez, insisted that his client had done nothing wrong and suggested that Mr. Rodriguez had been authorized to order the destruction of the tapes. “He had a green light to destroy them,” Mr. Bennett said.

Of course, Bennett would say that, but it suggests he has a name and maybe even a document to tie to an affirmative authorization, not just some kind of "hmm, good question, we'll get back to you" response.
 

charles gittings said...

After Abu Ghraib there was no reason to think that waterboarding someone might be torture and *might* be a crime?

Abu Ghraib involved the unapproved sexual abuse of prisoners and was against Army regulations. It had nothing to do with either approved waterboarding or the torture statute.

Waterboarding clearly is torture by any honest account, but set that aside -- 18 USC 113 makes it an offense to commit simple assault.

18 USC 113 does not apply to foreign prisoners of war (generic) held overseas.
 

Bart,

What absolute nonsense. 18 USC § 113 applies "within the special maritime and territorial jurisdiction of the United States" as defined by 18 USC § 7. Show me where the statute makes any distinction based on who the victim is other than increasing the penalties for an offense committed against someone under the age of 16.
 

You know, I've always suspected that Gonzales, Addington, et al, are just vigorously sentimental guys deep down at heart.
 

PS:

Actully the statute does have one other reference to who the victim is: it applies whenever the perpetrator or victim are US nationals.
 

charles:

US civilian criminal laws have never and do not now apply to enemy combatants in overseas conflicts. These conflicts fall under congressionally enacted rules for captures, executive orders and international treaty in that order.
 

Bart,

BS.

Show me any statute that says any such thing.

Show me any statute that exempts the CIA or the White House from US criminal laws.

Show me any authority on the laws of war who claims it is lawful to assault or torture prisoners under any circumstance.
 

Professors:

Those of you who have been blogging on the status hearings of the Gitmo detainees might want to read and comment on the decision of the Military Commissions that Hamdan is indeed an unlawful enemy combatant and does not fall under any of the definitions of privileged combatants under the GC3.

You may recall that Captain Allred is the very cautious military judge in charge of this first military commission, who initially ruled that the CRST status finding that Hamdan was an enemy combatant did not fulfill MCA requirement that anyone tried by military commission must be found to be an "unlawful enemy combatant." Judge Allred also claimed that he did not have the jurisdiction to make this status determination, but the military court of appeals disagreed and ordered Allred to make the decision.

This decision is another very cautious and narrow opinion filled with a variety of interesting discussion topics.
 

Mr. "Unitary Executive" says:

There is no legal reason to expect future criminal investigations where these tapes would be required as evidence because the President, DOJ and Congress all affirmatively or tacitly signed off on the CIA interrogation programs.

The preznit and the DoJ? Aren't they one and the same in your view?

As for "Congress "signing off" (even if the Gang of Four did so, which is a matter of some confusion and dispute), of what legal significance is this? These four (or eight) Congresscritters' failure to complain has no effect on the laws as they exist.

For that matter, the preznit "signing off" on the "legality" of such has no legal effect either, except perhaps as to immunity of any subordinates that thought they were legitimately performing their duties, for any torts for which there is immunity from tort claims for such actions done in the normal course of duty.

Cheers,
 

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"Bart", "Bart", "Bart.....:

US civilian criminal laws have never and do not now apply to enemy combatants in overseas conflicts.

Well, if the enemy combatants were the ones committing the assaults in question, this might matter. But in this case they're not. So could you explain WTF this comment of yours has to do with the price of tea in Sri Lanka?

Is this complete stoopidity on your part, or are you just being dishonest? The reason I ask is that Charles G. had already pointed this fact out to you.

Cheers,
 

charles/arne:

This is pretty elementary. War does not fall under the civilian criminal code for what should be obvious reasons. Even if your entire understanding of war comes from the movies, you should have picked up on this.

If US civilian criminal laws applied to our soldiers' treatment of the enemy during a war, during the Persian Gulf War, I and my men would have violated the statutes concerning murder, kidnapping, battery, assault, theft, etc.

War has its own laws - congressionally enacted rules for captures, executive orders and international treaty in that order. The enemy only has the rights granted under those laws.
 

Well I'm sorry Bart, but what I know about the laws of war comes from studying a fair amount of military history over the last 45 years, and six years of investigating the Bush administration's detainee polices more than full time, including detailed study of the laws of war and other applicable laws, not that such biographical trivia has any bearing one way or the other.

This matter is indeed "elemetary," but your claim is absurd on its face. The "civilian criminal laws" of this nation are Title 18 of the United States Code and the military laws are Title 10 U.S.C. respectively. The DoD is entirely a creature of those laws, being entirely organized, operated, and regulated by laws enacted by Congress under the basic authority of Art. I of the US Constitution. Would you claim that soldiers are exempt from the "civilian laws" that apply to tax evasion.

The true situation here is that the US code applies equally to all US nationals, while Title 10 applies only to the military and certain persons under military authority (including prisoners in military custody) as specified by that title. There is nothing which would exampt the military from all US laws outside Title 10 -- in fact, the "civilian criminal laws" (Title 18) apply to military personnel just as they do to civilians. Indeed, there is a particular statute which applies specifically to war crimes committed by military forces in combat, 18 USC 2441.

Now it's true that under the laws of war (specifically the Geneva and Hague conventions) a soldier enjoys combatant immunity / privilege: they cannot be prosecuted for acts pursuant to lawful military operations -- but assaulting or torturing prisoners of any description is a war crime, because prisoners are "hors de combat" and the detaining power is obligated to provide for the safety and well-being of anyone they have in custody. Now the CIA is a civilian agency, but even if it was part of the military and the military was completely exempt from Title 18 by act of Congress, assaulting a prisoner is still crime under the punitive articles of Title 10 as well as the customary laws of war.

Bottom line: you are flat wrong -- to put it charitably -- and so is the administration. They are committing war crimes against these prisoners by policy, and the policies in question represent an overt conspiracy p. 18 USC 371, etc.
 

charles:

1) Keep on subject, which is whether the US civilian criminal code applies to our citizens for their actions against the enemy while fighting an overseas war. The fact that a soldier might be prosecuted under the civilian code under other circumstances, such as tax evasion, is irrelevant.

2) The fact that there are separate statutes for war crimes ought to give you a clue that these matters are not covered by the domestic criminal code.

3) The fact that you have to cite to international treaty for your other arguments ought to give you a second clue. BTW, the law of war does not make it a war crime to commit simple battery or assault on a POW. POWs are often handled very roughly. You are not allowed to beat them or torture them.

4) Feel free to either give us all an example of a soldier prosecuted under the domestic federal criminal code for his or her actions against the enemy in a foreign war or simply concede the point.

You are welcome to point out any instance where one of our soldiers was prosecuted under the US civilian criminal code for
 

Bart,

I am on the subject, and the only reason I cited the relevant international treaties is that they are the source of the combatant immunity which you are substantially misrepresenting.

I repeat: the CIA is a civilian agency -- CIA agents are NOT soldiers. It is YOU who needs to cite some actual authority for your claims, and it is completely obvious here that you can't do it because you're just fabricating a fraudulent set of claims out of thin air.

And again, this stuff is just as illegal under the UCMJ as it is under Title 18 --

10 USC § 893 states: "Any person subject to this chapter [i.e. Title 10, ch. 47 (UCMJ)] who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

10 USC § 928(a) states: "Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct."

There was an officer in Iraq who was prosecuted for threatening to shoot a prisoner unless he talked, not that it matters. That got plenty of press too, as did the prosecutions resulting from Abu Ghraib, not that any of it really matters here. The law is the law, and you can either support your claims or you can't. In fact, you haven't cited a single authority of any description to support your transparently wishful and dishonest claims. You can't, because there simply isn't any such authority; you're just fabricating gratuitous make-believe because you've trapped yourself in a lie.
 

Those interested in discussing the military commission's detailed finding that Hamdan is an unlawful enemy combatant are welcome to come here.
 

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charles:

1) Our citizens fighting the enemy in overseas wars do not fall under the civilian criminal code because of immunity granted by international treaties. This practice long predated the Hague and Geneva Conventions you cited.

2) The CIA engaged in the war with al Qaeda and its allies are not civilians and would be considered lawful or unlawful combatants under the law of war depending on what they are doing.

3) The prosecutions to which you refer are under the UCMJ, not the civilian criminal justice system, for violations of Army regs and rules, not the civilian criminal code.

Give it up already. You are quite simply wrong.
 

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For anyone who would actually consider following Brave Sir Robin back to his blog, you should be aware that he censors posts there.
 

Mona Charen brings a much needed dose of perspective over the CIA tapes kerfluffle.
 

bb:

All of your posts which have not included your usual swearing and name calling have been posted at my blog. I am not worried about that childishness from most who post here.
 

Baghdad, you are a lying scumbag.
 

2) The fact that there are separate statutes for war crimes ought to give you a clue that these matters are not covered by the domestic criminal code....

"... and the fact that there are federal statutes for certain murders ought to give you a clue that murder is not covered by state statutes."

Cheers,
 

"Bart" DePalma:

1) Keep on subject, which is whether the US civilian criminal code applies to our citizens for their actions against the enemy while fighting an overseas war.

As Charles G. pointed out, on a battlefield (but not in Guantanamo, which is not such thing), you may shoot an enemy not hors de combat. This is normal combat operations. But you may not steal his credit cards or cash.

Cheers,
 

"Bart" DePalma:

1) Our citizens fighting the enemy in overseas wars do not fall under the civilian criminal code because of immunity granted by international treaties.

International treaties provide U.S. citizens immunity from U.S. prosecution under U.S. law?!?!? Wow, that's a new one from you, and I'm really a bit surprised you'd suggest such a thing.

"Bart", please stop with the sophistry. It's an insult to all here that you suggest that anyone will buy this horse manure you're shoveling. No one buys it, and for good reason. It is disrespectful, and an abuse of the blog.

Cheers,
 

Bart,

"Our citizens fighting the enemy in overseas wars do not fall under the civilian criminal code because of immunity granted by international treaties. This practice long predated the Hague and Geneva Conventions you cited."

Bunk. Show me a citation that says any such thing.


"The CIA engaged in the war with al Qaeda and its allies are not civilians and would be considered lawful or unlawful combatants under the law of war depending on what they are doing."

BS. See 10 USC § 802:

"Persons subject to [Title 10 USC, ch. 47])

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, [etc]. * * *

(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of war, persons serving with or accompanying an armed force in the field." * * *
 

"Bart" DePalma:

2) The CIA engaged in the war with al Qaeda and its allies are not civilians and would be considered lawful or unlawful combatants under the law of war depending on what they are doing.

Care to describe their "uniforms", "distinct insignia", or "fixed markings visible at a distance"?

Cheers,
 

It appears that Sir Bart has bravely run away...
 

"Bart" DePalma:

Mona Charen brings a much needed dose of perspective over the CIA tapes kerfluffle.

I'll save you folks reading the link. Her perspective in one sentence: "We're not as bad as (we claim) al Qaeda is".

Why "Bart" bothers to point this out as a needed "perspective" is something that only he and his psychiatrist know for sure.

Cheers,
 

-wg- That is torture to the point of death. Either disprove it or somebody has to answer for it.

Disprove it? The New Yorker Magazine published photographs of it! What do you think happened to this guy? Cut-n-pasted from here (N.Y. Times, read the whole thing)

...The other unidentified photo shows the body of a man with facial wounds and a bandage under his swollen right eye. He is in an unzipped body bag covered with bags of ice. There is no other information...

The photograph of the man packed in ice appears to match a reference in a diary entry made by Staff Sgt. Ivan L. Frederick, who was a guard at the prison. He is one of six members of a military police unit charged in the abuse cases at Abu Ghraib.

The diary mentioned an incident in November 2003 involving a detainee that Sergeant Frederick described as an "O.G.A. prisoner." That reference to O.G.A., or Other Government Agency, usually meant prisoners under the control of the C.I.A. or other intelligence agencies.

In his diary, Sergeant Frederick wrote of the detainee: "They stressed him out so bad that the man passed away. They put his body in a body bag and packed him in ice for approximately 24 hours in the shower in 1B. The next day the medics came in and put his body on a stretcher, placed a fake IV in his arm and took him away. This O.G.A. was never processed and therefore never had a number."...

 

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