jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
The Questions that Beg to Be Answered
Friday, December 07, 2007
The Questions that Beg to Be Answered
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.
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."
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.
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....)
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.Post a Comment
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....
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
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