[NYTr] John Dean: Bush May Be Forced to Explain Destroyed CIA Torture Tapes

[All the News That Doesn't Fit]

See also: Dec 18, 2007:

Fed Judge orders hearing on Bush Destruction of Torture videotapes
http://blythe-systems.com/pipermail/nytr/Week-of-Mon-20071217/073121.html

FindLaw via Alternet - Dec 18, 2007
http://www.alternet.org/story/70797/

Bush May Be Forced to Explain Destroyed CIA Torture Tapes

By John Dean

By my count, there appear to be no less than ten preliminary
investigations underway, following the revelation that the CIA
destroyed at least two sets of videotapes (containing hundreds of hours
of footage) of "advanced interrogation" techniques being employed in
terrorism investigations. In fact, every branch of government is now
involved.

Within the Executive Branch, according to news reports, the CIA's
General Counsel and Inspector General are investigating. The Department
of Justice is investigating. On Capitol Hill, both the Senate and House
Intelligence Committees are investigating. In addition, the House
Committee on Oversight and Government Reform is inquiring as to whether
the Federal Records Act has been violated. And Senator Joseph Biden,
chairman of the Senate Foreign Affairs Committee, has made preliminary
inquiries as well.

The Bush Administration has shown that it is not very good at
investigating itself, so no one should hold their breath for the
outcome of either the CIA or Justice Department investigation. And
Attorney General Mukasey has dismissed an independent special counsel
inquiry as very premature. The Democratic-controlled Congress could get
to the bottom of all this, but one should bear in mind that our elected
representatives have yet to get to the bottom of the political firing
of U.S. Attorneys (although, to be fair, they did get former Attorney
General Gonzales to resign). Today, Congress suffers from a
degenerative spinal malady, and while they can bark, they appear unable
to bite.

There are three court orders that may have been violated, but one in
particular strikes me as a very serious problem for the CIA.
Accordingly, we may well be in the unique situation in which a pending
civil lawsuit might flush out some answers, and the federal judiciary
might thus embarrass the other branches into actually taking meaningful
action. I say "might" because the Bush Administration thinks nothing of
stiffing federal court judges who seek information, and they probably
figure they can tap-dance for the federal judiciary - along with all
the other inquiries -- until they are out of Washington on January 20,
2009.

Nevertheless, the situation in the United States District Court for the
Southern District of New York, as a result of Freedom of Information
Act requests by the American Civil Liberties Union, could well force
the Bush Administration's hand. An order holding the CIA in contempt of
court might get the Administration's attention.

The ACLU's Lawsuit, and the Order that the CIA Produce Documents

When word of mistreatment of detainees surfaced, the ACLU filed a
Freedom of Information Act request targeting the CIA and others on
October 7, 2003 and May 25, 2004, seeking records concerning the
treatment of all detainees apprehended after September 11, 2001 and
held in U.S. custody abroad. This, of course, would mean not only in
Guantanamo but in the secret prisons in Eastern Europe operated by the
CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed
a lawsuit in June 2004 in the U.S. District Court for the Southern
District of New York. The case ended up in the courtroom of Judge Alvin
K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the
CIA and other government departments to "produce or identify" all
responsive documents by October 15, 2004.

The CIA claimed that some of the relevant documents were the subject of
an inquiry by the CIA's Office of the Inspector General, so its
attorneys requested a stay of the judge's order and an extension of
time to comply with the request for other documents. In February 2005,
Judge Hellerstein denied the CIA's request for a stay, but he did not
enforce the stay immediately when the CIA moved for the judge to
reconsider his ruling based on additional evidence from the CIA's
Director - as the CIA entered a full-court press to prevent the ACLU
from getting anything.

This stalling action had been playing out, when news of the destruction
of the tapes became public. Now, in the action before Judge
Hellerstein, he ACLU has moved to hold the CIA in contempt of court,
based on the Judge's September 15, 2004 ruling. It is difficult to see
why the CIA is, in fact, not in contempt, given the nature of the FOIA
request and the judge's order.

Motion to Hold the CIA In Contempt

On December 6, The New York Times reported that the CIA had destroyed
two videotapes of CIA detainees who were being subjected to "aggressive
interrogation techniques" - more commonly called torture. The
Washington Post soon reported that the destruction of the tapes had
occurred in November 2005. CIA Director Michael Hayden publicly
acknowledged that destruction, and soon confirmed this statement under
oath in testimony to the House and Senate, saying that the destruction
had occurred before he became Director.

Passing over who did what and why to focus on the situation in Judge
Hellerstein's courtroom, on December 12, of this year the ACLU filed a
motion to hold the CIA in contempt of court. The ACLU makes a powerful
case that the CIA violated Judge Hellerstein's order of September 15,
2005 - issued before the CIA's apparent destruction of the tapes.

The Court's Order required the CIA to "produce or identify all
responsive documents." Those not produced had to be identified.
Classified documents were to be "identified in camera [that is, only to
the court] on a log produced to the court." Recall, too, that the FOIA
request sought information on the handling of all but a few detainees,
who were within the United States.

It is well- and long-established law that a court order of this nature
requires that the party preserve all information possessed that is
responsive to the request. Thus, the CIA was obligated to preserve the
tapes even if they were hell-bent on fighting in court to deny them to
the ACLU. And as this litigation proceeded, Judge Hellerstein's later
orders only served to reinforce that obligation, as a string of
precedents makes clear.

What Is Next?

In addition to holding the CIA in contempt for destroying tapes that
were subject to an FOIA request that surely reached these videos, the
ACLU has also requested that the CIA provide some public disclosure of
the facts surrounding the destruction of this material. In addition,
the ACLU has requested permission to take depositions of those
involved, under oath, and has requested that the court issue a further
order barring the CIA from destroying, removing, or tampering with
other records that are the subject of the ACLU's FOIA request. Finally,
the ACLU is seeking costs for its expenses and such other relief as the
Court may deem appropriate.

How this is resolved depends on one factor: Judge Hellerstein.
Doubtless, the CIA will respond with papers proclaiming its innocence,
and no doubt denying that it was aware of the destruction. However,
this is where the Judge himself - if he does not give the ACLU
discovery powers - may demand that the CIA tell him what they have been
up to, given his clear prior orders.

As I have written before, judges appointed by Republican presidents
tend to throw cases that might embarrass Republican presidents out of
their court, as quickly as they can figure out how to do so. Federal
judges appointed by Democratic presidents, fortunately, do not tend to
cower when either Republican or Democratic presidents are involved. A
judge ends up with a case like this through a random selection
procedure; in this case, the CIA happened to draw a Judge it cannot
intimidate, which makes it interesting.

More on Judge Alvin K. Hellerstein, Who Issued the Videotapes Order

Judge Hellerstein was appointed to the federal bench by President Bill
Clinton in 1998. An editor of the Columbia Law Review during his law
school years, he started his legal career in the Judge Advocate General
(JAG) Corps of the Army in 1959-1960. An experienced litigator with a
prestigious New York City law firm, he is a highly-respected judge. He
works hard, is fair, and is savvy.

He is also a nightmare for the CIA in a case like this, because on June
3, 2005 he ordered the release of four videos from Abu Ghraib, along
with dozens of photographs - not withstanding an effort of the
government to suppress this material from ever becoming public.

Judge Hellerstein appears to have no tolerance for torture. Unlike his
former colleague and now-Attorney General Michael Mukasey, who still is
not clear that waterboarding is torture, one does not have the sense
that Judge Hellerstein suffers from such confusion. While Judge
Hellerstein is going to appropriately protect the sources and methods
of the CIA, if any judge is going to get to the bottom of this
destruction of these records quickly, this is the judge.

[John W. Dean is a columnist for FindLaw and a former counsel to the
President. ]

© 2007 Independent Media Institute.