Patterico's Pontifications

12/18/2007

Federal Judge Orders Hearing on CIA Tapes

Filed under: Constitutional Law,War — DRJ @ 9:32 am

[Guest post by DRJ]

Acting on a motion by attorneys for GTMO detainees, US District Judge Henry H. Kennedy set a hearing Friday to consider the destruction of CIA waterboarding videotapes:

“A federal judge has ordered a hearing on whether the Bush administration violated a court order by destroying CIA interrogation videos of two al-Qaida suspects. U.S. District Judge Henry H. Kennedy rejected calls from the Justice Department to stay out of the matter. He ordered lawyers to appear before him Friday morning.

In June 2005, Kennedy ordered the administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren’t covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

David Remes, a lawyer who represents a Yemeni national and other detainees, asked for the court hearing. He said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed. “We want more than just the government’s assurances. The government has given these assurances in the past and they’ve proven unreliable,” Remes said. “The recent revelation of the CIA tape destruction indicates that government cannot be trusted to preserve evidence.”

The Justice Department and CIA are investigating the destruction of the tapes and have urged Congress and the courts to give them space and time to let them investigate.

Remes urged Kennedy not to comply. “Plainly the government wants only foxes guarding this henhouse,” Remes wrote in court documents this week.

Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that government did not violate his order, he still could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in “pending or reasonably foreseeable litigation.”

The judge has the power to hold this hearing and it’s not clear what the outcome will be. However, it seems clear the destroyed tapes were not made at GTMO and did not involve interrogations of GTMO detainees at the time of the interrogations. If that’s true, these tapes weren’t subject to the court’s order as the terms of the order have been reported in the news.

I’ve heard of revisionist history but if the government is sanctioned on these facts, that’s taking revisionism to a whole new level.

— DRJ

23 Responses to “Federal Judge Orders Hearing on CIA Tapes”

  1. I agree, DRJ. What a bunch of crap.

    tired (cd0e7b)

  2. it seems clear the destroyed tapes were not made at GTMO and did not involve interrogations of GTMO detainees at the time of the interrogations.
    .
    vs.

    “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

    vs. the government’s argument filed on December 14, 2007

    Petitioners base their arguments on the proposition that the CIA has acknowledged destroying tapes regarding the interrogation during the 2002 timeframe of Abu Zubaydah. But Abu Zubaydah is not a petitioner in this matter, and petitioners have neither alleged nor shown that he was a detainee at Guantanamo Bay when the Court entered its Order on June 10, 2005. As a result, petitioners do not seriously contend that the tapes of Abu Zubaydah’s interrogation reflect “the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantánamo Bay, Cuba” ­ that is, those detainees at Guantanamo on June 10, 2005

    Not even the government is arguing that the order was limited to “tapes made at GTMO.”

    cboldt (3d73dd)

  3. cboldt,

    I agree the terms of the Order matter. I don’t know what the order says which is why I was careful in wording my post. Do you know what the Order says? If so, I would appreciate a link.

    As for the government’s argument, the article specifically states: “The Justice Department argued that the videos weren’t covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.” Maybe the DOJ is being disingenuous. Maybe not.

    DRJ (09f144)

  4. Three posts from SCOTUSblog, although none of them is to the order itself. I haven’t visited PACER for any of these, and assume that the government’s quoting of the order is accurate.
    .
    US: CIA tapes issue not for courts – has a link to the government’s pleading, which quotes directly from the order (the same material in the blockquote above, which is the same as in the news report in your post, “detainees now at” not “detainees allegedly mistreated at”

    Government accused of biased CIA probe – includes a link to the defendant’s reply to the government’s response

    Hearing set on CIA tapes – includes a link to today’s brief announcement of Friday’s hearing

    cboldt (3d73dd)

  5. Oh, as for “The Justice Department argued that the videos weren’t covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison,” I take that as an assertion that as of some date in June 2005, those prisoners were not detained at GTMO. I don’t know the source of that argument either. It could be the reporter, or it could be in a pleading that I haven’t seen, or it could be an informal statement that need not be sworn true.
    .
    In any event, even THAT argument is different from “mistreatment taped at GTMO,” which is what I take as the point of view of the order expressed in your comment, “it seems clear the destroyed tapes were not made at GTMO and did not involve interrogations of GTMO detainees at the time of the interrogations.”

    cboldt (3d73dd)

  6. cboldt, thanks for the links.

    Based on your first Scotusblog link, it sounds to me as if the government’s argument is open to more than one interpretation. Here’s a statement that purports to be from the government’s brief:

    “The two tapes were not covered by that order because the individuals questioned on them were not at Guantanamo at the time, the [government] document said.”

    For instance, that could be read to mean that the detainees whose tapes were destroyed:
    1. Were not at GTMO when the Court issued its Order, or
    2. Were not at GTMO when the tapes were made.

    There could be other reasonable interpretations, too, which means the judge will have to decide if the government had fair notice of what was covered by the Order and disregarded it.

    It’s hard to evaluate this without knowing exactly what the Order says. If it pertains to tapes made at GTMO (as it sounds to me from the articles I’ve read), then it seems like a stretch to claim the tapes fell within the Order. On the other hand, if the Order covers tapes made at any time or place regarding persons held at GTMO at any time, I agree the government has a problem.

    DRJ (09f144)

  7. BushCo believes it is above the law. Laws, his mother reminds are, “are for little people.”

    David Ehrenstein (4ce68d)

  8. The judge will now rule that all CIA tapes for whatever reason will be turned over for review.

    davod (5bdbd3)

  9. ” it seems clear the destroyed tapes were not made at GTMO and did not involve interrogations of GTMO detainees at the time of the interrogations. “

    Why does this “seem clear”? If not at Gitmo, where were these people tortured and what valuable information was ascertained by torturing them?

    David Ehrenstein (4ce68d)

  10. davod,

    You may be right. If that happens, then the CIA’s DDO Jose Rodriguez, Jr., was correct to be concerned the tapes would not be safeguarded.

    DRJ (09f144)

  11. David E. #9,

    That was my understanding of the facts based on a reading of the various articles but I could certainly be wrong. That’s why I said it “seems” clear as opposed to it “is” clear.

    DRJ (09f144)

  12. “The two tapes were not covered by that order because the individuals questioned on them were not at Guantanamo at the time, the [government] document said.” is Lyle Denniston’s paraphrase of the government’s brief.
    .
    The brief is there, and it states the government contention as my blockquote above, i.e., that the defense has failed to allege that Abu Zubaydah was at GTMO on June 10, 2005.
    .
    Likewise, we have the direct quote from the order, which says “detainees now at [GTMO],” with “now” being June 10, 2005.
    .
    I think your interpretation of the order (that it aims to protect only recordings made at GTMO) is incorrect. It seems to be based on paraphrases of the government brief, one paraphrase by Matt Apuzzo, the other by Lyle Denniston. But Apuzzo quotes from the order, the government quotes from the order, and in both cases, the phrase in play (direct quoted from the order) is “detainees now at [GTMO].”
    .
    I don’t read that part of the order as broad as “tapes made at any time or place regarding persons held at GTMO at any time.” The government’s read seems to be “tapes made at any time or place regarding persons held at GTMO on June 10, 2005.”

    cboldt (3d73dd)

  13. How does your emphasis on “‘detainees now at [GTMO],’ with “now” being June 10, 2005″ vary from the government’s read of “tapes made at any time or place regarding persons held at GTMO on June 10, 2005”?

    DRJ (09f144)

  14. In other words, cboldt, assume it’s true the Order applies to GTMO detainees as of June 10, 2005. Were KSM and Zubaydah GTMO detainees on that date?

    DRJ (09f144)

  15. How does your emphasis on “`detainees now at [GTMO],’ with “now” being June 10, 2005” vary from the government’s read of “tapes made at any time or place regarding persons held at GTMO on June 10, 2005″?

    It doesn’t. The point of difference I am trying to hone in on is your contention that the order is aimed at tapes made in made at GTMO or involving interrogations of GTMO detainees at the time of the interrogations. I think that is an incorrect interpretation.

    assume it’s true the Order applies to GTMO detainees as of June 10, 2005. Were KSM and Zubaydah GTMO detainees on that date?

    That is exactly the question. Which is a different question from “Were the tapes of KSM and Zubaydah interrogation made at GTMO?”
    .
    The government hasn’t said, one way or the other; and the defense has no way to know, one way or the other (or so it claims).

    cboldt (3d73dd)

  16. Apuzzo’s paraphrase of DOJ’s argument introduces an ambiguity as to when the detainees were HELD at GTMO, but even in that ambiguity, he paraphrases the government’s rationale as being based on the two men not being HELD at GTMO at whatever point in time is relevant. I don’t see a hint of government argument that the order is inapplicable because the interrogation was not CONDUCTED at GTMO.

    In June 2005, Kennedy ordered the administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”
    .
    Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren’t covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

    cboldt (3d73dd)

  17. This is going nowhere. The Judge has no real leverage to enforce his order in this instance. What are his options even if he finds the gov’t wilfully violated his order? Judgment for the Defendants? What are they seeking?

    Anyone think a federal district judge is going to get away with ordering the release of a bunch of suspected terrorists because the CIA decided on its own to destroy tapes of classified activity?

    Much sound and fury here.

    WLS (329473)

  18. WLS: a fine for contempt of court, perhaps? I don’t know if that’s allowed in this kind of case, but it seems like a potential outcome.

    aphrael (e0cdc9)

  19. The Judge has no real leverage to enforce his order in this instance. What are his options even if he finds the gov’t wilfully violated his order?

    .

    Slim and none. Which is part of the calculus in a decision to give lip service and no more to court orders involving military detainees. In this particular case, the government argues directly that this court lacks jurisdiction.

    .

    Unless and until the Supreme Court acts in a way that changes the law as set forth in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (June 29, 2007), the law in this Circuit is clear that the Court does not have jurisdiction over the subject matter of this petition. For that reason, the Court should forbear from proceeding with a judicial inquiry as requested by petitioners’ motion.

    cboldt (3d73dd)

  20. cboldt,

    I understand your points and I don’t disagree. Thanks for bringing it up.

    DRJ (8b9d41)

  21. aphrael — who is he going to fine? The CIA Chief? Does the judge think the guy is going to write his own check?

    What good does it do to fine the gov’t? That money goes back to the gov’t — it doesn’t go to the detainees.

    Like I said, this judge is going to piss and moan, but at the end of the day there is little he can do.

    WLS (329473)

  22. If only the Democrats and lefties showed 1/10 as much concern over the ‘missing’ ATF Waco tapes as they now do over the destroyed CIA tapes!

    Brad (fa7008)

  23. Judge Kennedy’s order of January 9, 2008 supports DRJ’s construction of Judge Kennedy’s June 2005 order, and is a direct refutation of the construction that I’d adopted.
    .

    The 2005 Order prohibits respondents from destroying evidence regarding any torture, mistreatment, or abuse of detainees that occurred at Guantánamo Bay.

    .

    Source: SCOTUSblog: Judge refuses to probe CIA tape destruction

    cboldt (3d73dd)


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