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BalkinizationFriday, 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.
Posted 10:27 PM by Marty Lederman [link]
http://balkin.blogspot.com/2007/12/impeccable-timing.html
