Bush Administration Refuses to Turn Over Information to Court on Tape Destruction; Judge Told Not to “Interfere”

The Bush Administration waited to late Friday night to tell a federal judge that it would not release information on its own possible obstruction of justice in his court.    

U.S. District Judge Henry H. Kennedy has demanded information about the tapes for obvious reasons. Like other courts, he was given false information by the Bush Administration on the existence of such evidence. Indeed, 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 Bush Administration is trying alternative rationales for refusing to turn over evidence of its own obstruction. First, it is arguing that since Abu Zubaydah and Abd al-Rahim al-Nashiri – were technically not at the Guantanamo military prison in Cuba at the time — they fell outside of the order. 

Acting Assistant Attorney General Jeffrey S. Bucholtz further told the court that any inquiry on its part would be unwelcomed “interference” with its own investigation into its own misconduct. That’s right. Here is how the argument goes: First, the Bush Administration tell Congress and courts that no such evidence exists. Second, while members of Congress, judges, and defense attorneys are demanding the evidence, the Bush Administration methodically gathers every copy and destroys the evidence. Third, while people uniformly demand a special prosecutor, the Justice Department insists that it will investigate itself. Fourth, almost immediately upon rejecting a special prosecutor, the Justice Department then claims its own investigation of its own misconduct as an excuse not to turn over any evidence of its misconduct to courts. Of course, it waits until a late Friday when all such scandalous acts are committed to avoid news coverage.

I have seen more reputable conduct from mob attorneys. The fact is that the court has an independent interest in such information, which can be supplied under seal or in summary form. Congress has the same interest. It is perfectly outrageous for the Justice Department to deny any conflict of interest when the tapes showed the commission of a crime (the torture of suspects) ordered by the President of the United States. There is also the not so minor issue of the involvement of people at the White House, CIA, and yes the Justice Department.

Finally, there is the fact that Attorney General Mukasey swore implausibly that he did not know what waterboarding is and, even when told, refused to acknowledge the various courts decisions defining it as torture. Since his confirmation, he has refused demands that he answer that question for the obvious reason that it would confirm that President Bush ordered criminal acts. Sen. Feingold has led this worthy but thus far fruitless effort. Mukasey will now head an investigation involving the very subject of waterboarding.

Once again, the question is how along the Democrats allow this moving farce to last. Democrats need to insist on a special prosecutor and address directly the crime of torture — regardless of the knowledge of some of their leaders.

For the full story, click here

24 thoughts on “Bush Administration Refuses to Turn Over Information to Court on Tape Destruction; Judge Told Not to “Interfere””

  1. Sorry Dunce, I used to admire Dershowitz and read his books, but lately all he’s convinced me of is that he will say and do anything to excuse, carte Blanche, the conduct of the Israeli State. Any code of “ethics” that carves out exceptions for your own tribe, especially of the type advocated by Mr. Dershowitz (who would condemn the very same methods, practiced, by say, the Iranians, the North Korans, or the Chinese) is invalidated by its exceptionalism.

    Note that I said NOTHING about conduct “off the books” or “below the radar.” I said that in the extremely unlikely scenario of the ticking time bomb, which is mostly a Red Herring anyway, you torture and then face the consequences in a trail. You’re the one who said the majority of Americans approve of torture. If you’re right, and you probably are, an agent of the State acting in good faith and doing the right thing is going to be acquitted by a jury.

    What you want to do is give prior approval to torturers and unburden them from any fear of the consequences for their actions. In other words, your prescription for torture means that government will have a political incentive to favor torture because torture potentially yields a small possibility for a politically favorable outcome with no risk of a politically negative outcome. I think it was Graham Greene who said that in a country where people are tortured there are two classes of people, those who expect to be tortured, and those for whom being tortured is inconceivable. Well, I guess we’re already headed in that direction, by why give it the imprimatur of the law?

    The notion that we now have “open” government and “accountability,” or that “torture warrants” will bring us any, is ludicrous. The government will continue to do what it has done and is doing now: tout it’s successes and keep secret its failures; and if it has no successes it will simply manufacture some. Giving a priori permission to torture, completely without consequences for those approving the warrants and doing the torturing (and with real political disincentives for denying a warrant), further DECREASES accountability. My God man, there is no accountability now, when torture is presumably against the law. How in the world is a system that makes torture legal going to increase accountability? In fact, everything you suggest is part of the effort by those currently in power to retroactively legalize their law-breaking; and that is what torture warrants will do, whether or not that is part of the design: provide cover for further degeneracy.

    There is no way we can institutionalize barbarity without becoming barbarians. Terrorism does not threaten the existence of America or Constitutional government. We are our own worst enemies. If America dies it will be because we betrayed the values we once celebrated, and in attempting to regulate our worst impulses rather than banish them, choked to death on our own excrement.

  2. What a wonderfully illuminating conversation!

    I come down to Law and the respect for it and the ability to change it.

    But not circumvent it, ignore it, or break it.

    As to a more philosophical line of opposition to torture, there is this and Patty and Professor Turley already have spoken on it:

    What is America for? What are we as a nation here for? What is America’s purpose?

    If it is only survival, then yes, Dunce, by all means, let us adopt torture, pre-emptive wars, treachery, assassinations, and any other means that will “save American lives”

    But I for one, do not want to anger Providence and see the singular blessing that has sustained the Republic for over two hundred years, withdrawn. I worry we are very close to that darkness even now.

  3. Hermes, here’s what Dershowitz would say to you:

    “There is a difference in principle, as Bentham noted more than 200 years ago, between torturing the guilty to save the lives of the innocent, and torturing innocent people. A system which requires an articulated justification for the use of non-lethal torture and approval by a judge is more likely to honor that principle than a system that discreetly and without open accountability relegates these decisions to law enforcement agents whose only job is to protect the public from terrorism.

    As I pointed out in Why Terrorism Works, several important values are pitted against each other in this conflict. The first is the safety and security of a nation’s citizens. Under the ticking bomb scenario this value may be thought to require the use of torture, if that were the only way to prevent the ticking bomb from exploding and killing large numbers of civilians. The second value is the preservation of civil liberties and human rights. This value requires that we not accept torture as a legitimate part of our legal system. In my debates with two prominent civil libertarians, Floyd Abrams and Harvey Silverglate, both acknowledged that they would want non-lethal torture to be used if it could prevent thousands of deaths, but they did not want torture to be officially recognized by our legal system. As Floyd Abrams put it: “In a democracy sometimes it is necessary to do things off the books and below the radar screen.” Former presidential candidate Alan Keyes took the position that although torture might be necessary in a given situation, it could never be right. He suggested that a president should authorize the torturing of a ticking bomb terrorist, but that this act should not be legitimated by the courts or incorporated into our legal system. He argued that wrongful and indeed unlawful acts might sometimes be necessary to preserve the nation, but that no aura of legitimacy should be placed on these actions by judicial imprimatur. This understandable approach is in conflict with a third important value: namely, open accountability and visibility in a democracy. “Off-the-book actions below the radar screen” are antithetical to the theory and practice of democracy. Citizens cannot approve or disapprove of governmental actions of which they are unaware. We have learned the lesson of history that off-the-book actions can produce terrible consequences. Former President Richard Nixon’s creation of a group of “plumbers” led to Watergate, and former President Ronald Reagan’s authorization of an “off-the-books” foreign policy in Central American led to the Iran-Contra scandal. And these are only the ones we know about!”


  4. Bottom line: If you want a different answer on the question of torture, and why we shouldn’t EVER be doing it, ask somebody else who is not an American, at heart, and who doesn’t believe in our principles, our democracy, or the rule of law.

    It is our commitment to those beliefs that separates us. It is the stand that we ARE, as evidenced by what we do.

    The one constant running through all the arguments set forth here is human nature.

    Doubtful anyone needs the lecture about why no one wants to count on THAT to see us through the dark times.

    Remember Abu Ghraib?

  5. I don’t understand how an intelligent person can seriously ask why the government can’t torture people. How about the very simple Constitutional notions that one is innocent until PROVEN guilty and that one may not be punished for a crime until he has been convicted –that quaint old due process stuff? Dunce may be hard-headed, but he’s obviously not clear-eyed or pragmatic: he wants to torture people based on nothing more than probable cause. We see from the “war on drugs” how easily probable cause is manufactured. Furthermore, our Constitution prohibits “unusual” punishment, even for those actually convicted of a crime: Dunce must be expecting a lot of ticking time bombs if he expects torture to become usual. And if he was clear-eyed then he’d see that the vast majority of those people this administration claims the right to torture are innocent of any “crime” and have no information about “terrorism” to extract.

    The “ticking time bomb” argument is red herring. Someone being tortured under such circumstances can simply lie and the bomb will go off before his lie can be confirmed; and if there is time to confirm his lie, then there isn’t a “ticking time bomb.” If we’re going to torture people for information about a “bomb” that could go off sometime in the indefinite future why should there be any limits? Should we torture to find out about a bomb that could go off in four hours, or tomorrow, but not next week or next month or next year? And if all this torture is really going to “save lives” then why balk at killing the people we’re torturing?

    That said, if I was in the position to torture someone and really thought it was going to save lives, I might well do it regardless of the personal consequences. And if Dunce is right, why shouldn’t I? since I could undoubtedly count on that great majority of torture supporting Americans to acquit me at my trial. And that is how the “ticking time bomb” scenario should be handled in the extremely unlikely case that it ever arises: you do it and face the consequences. If you did the right thing no jury is going to convict you.

  6. Dunce (though from your lucidity and rigorous thinking, you are far from such).

    Doesn’t the idea of the government, through its agents, taking people and putting sterile needles under their nails to cause excruciating pain, fill you with repugnance? Warrant or no warrant. Why should we condone this practice?

    I know you are coming from a hard-headed, clear-eyed, pragmatic mind-set and are weighing individual agonies against mass civil population casualties. So to you the equation is very clear no doubt. But consider that there have been two generations before now of soldiers and civil servants who were tasked with the defense of this country and they have seen this equation as well.

    The modern terrorists are nothing compared to the threat the old Soviet Union posed to us when it had gigatons of nuclear weaponry aimed at us and was EASILY able to smuggle them into the country at the time.

    And yet we didn’t resort to torture to uncover any putative Soviet plots to smuggle bombs into Washington DC and set them off.

    If we didn’t need to resort to it then, why now?

  7. Yes, that same CIA agent said that waterboarding saved lives and “broke” one Zubayda in “less than 35 seconds.” I agree with you that the Bush administration soiled this country’s name internationally and thinks it’s above the law. But I think it’s high time to redefine and delineate the parameters of torture; if all forms of torture are illegal as you say, then we have to band together and work out a system for legally administering torture. Consider Dershowitz’s position:

    “Under my proposal, no torture would be permitted without a “torture warrant” being issued by a judge.

    An application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it.

    The suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life.

    It may sound absurd for a distinguished judge to be issuing a warrant to do something so awful.

    But consider the alternatives: Either police would torture below the radar screen of accountability, or the judge who issued the warrant would be accountable. Which would be more consistent with democratic values?”

    I don’t see how coercive interrogation techniques, when done legally and responsibly, would make us into the monsters you say we’d become; to the contrary, you’re clinging to feel-good principles when the majority’s sense of what’s just runs counter to your’s. And the terrorists will and do take advantage of this holier than thou attitude.

  8. Bravo, Professor Turley! I hope Dunce stayed around long enough or checks back to this site to read your intelligent response.

    Liberals are often decried as moral relativists by the right, yet it is they who are so willing to surrender the once prized moral authority that was earned and honored by many generations before this morally bankrupt regime chose to undermine America from within. of its alleged effectiveness.

    Several of the things that USED to make America different from other nations were:

    Posse Comitatus–prevented the federal gov’t from using Federal troops (the US military might) against the American people. GONE.

    Habeus Corpus–prevented US citizens from being held without charges and without bail, required access to a lawyer, required allowing the confronting one’s accusers and access to the evidence to be used against you. GONE.

    Fourth Amendment–prohibits searching one’s home, personal papers, etc. without a sworn warrant (FISA) showing probable cause and seizure of property. SHAKY if not GONE.

    Even now, today, the Bush Crime Family is trying to get Congress to grant immunity from prosecution to the telecoms because the telecoms cooperated with these criminals in illegally wiretapping. They know full well that without the immunity, the telecoms will state under oath that the administration required and probably threatened them to break the law.

    Why does the President hate America so much?

    The reason we have (had?) these laws in America and claim to respect the rule of law, is that we’re AMERICA, not the kind of third world dictatorship Bush/Cheney want to denegrate this country into.

  9. Indeed, one of my favorite quotes. However, don’t give the Bush Administration ideas. They may turn to wind tunnels next for wind-boarding detainees.

  10. From “A Man for All Seasons” by Robert Bolt:

    “Roper: So, now you give the Devil the benefit of law!

    More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    Roper: Yes, I’d cut down every law in England to do that!

    More: And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast … and if you cut them down—and you are just the man to do it—do you really think you could stand upright in the winds that would blow then?

    Waterboarding is torture and against the laws of this country and treaties to which we are signatories. If we respect the law, and I suspect we all here do, then don’t ignore it for the sake of expedicency; change it!

  11. Dunce:

    I appreciate the kind statements and I am sorry that we disagree about torture. However, the test of a nation committed to the rule of law is whether it holds to principle when it is not convenient. President Bush has eradicated decades of good work by the United States to become the uncontested leader in the rule of law. We are now viewed as hypocrites and a rogue nation. Consider the costs of Bush’s foolish embrace of torture. We have gone from the perceived victim of 9-11 to an enemy of the rule of law. Miss America cannot even go to Mexico without being booed. Our closest allies have denounced our policies. We are increasingly alone in a very dangerous world. Beside being immoral, torturing suspects is stupid.

    Even if torture yields good information, that is not the test. Only a moral relativist decides on whether to engage in immoral or unlawful conduct on the basis of its success or usefulness. Waterboarding has long been defined as torture in the United States and internationally. Moreover, even a former CIA agent recently acknowledged that it is torture. l

    Do not think for a second that I would not like to hurt those responsible for 9-11. The planes that hit the Pentagon literally exploded in my rearview mirror when I was driving to work. It is no abstraction for me. However, I feel the same human emotion toward killers and child molesters. The test of our commitment to the rule of law (and our distinction from our enemies) is that the law and not our emotions control our policies. It is true that my moral sensibilities are offended, but what are we if not a moral nation. We must have the courage not to yield to our fears or anger if we are to win this war without losing ourselves in the process.

  12. I’m not a fan of O’reilly, have a ton of respect for you because you approach things objectively, and know that your breadth in the areas you touch on is ridiculous. I also abhor the secretive and illegal machinations of the Bush administration. I would vote for either McCain or Hillary in the general election and have convulsions each time I see Huckabee, Giuliani, or Ron Paul excite their congregants. You really earned my respect with that USA Today article about gun-control; it was gutsy and intellectually honest. My bone with you was your interview with O’reilly about torture. It hurts me to see my torts professor whom I respect and admire embrace boorish, arrogant, and simplistic views about torture. You law professors are fond of the most hypothetical, unlikely set of fact patterns but you can’t deal with the ticking time bomb scenario intelligently. You’d rather die for a principle you claim makes us different from the enemies we’re fighting; would you like to explain exactly how coercing (yes, physically) our foes into surrendering sensitive information about an impending catastrophe turns us into our enemy? This is where you digress into how torture doesn’t yield any useful information anyway; do you think it’s that clear-cut? I cringed when I heard what you would do if a suspected terrorist refused to cooperate: indict him, even execute him. I think certain types of TORTURE are warranted in certain situations and should be legal with clear limits on their application. This way we both win: “we would
    not be winking an eye of quiet approval at torture while publicly condemning it,” and while your personal moral sensibilities would still be offended, I think the majority would see nothing wrong with using non-conventional methods of interrogation when made necessary by the intransigence of killers.

  13. You greatly underestimate your power.

    Your ‘Butterfly Effect’ has already begun. Just look out your Windows.

    Keep going.

    And always remember the invincible Master, Perry Mason’s famous mantra
    “That’s incompetent, irrelevant, and immaterial” and smile ear to ear.

    You are great!

  14. I will do MY very best to keep them focused. You can count on it.

    I’m more sarcastic than I have probably ever been, and only half kidding when I imagine Cheney jumping ship between the legislative and the executive depending on where he was, with whom, for how long, and in what capacity.

    From the top. Torture is a crime. Waterboarding is torture.
    The President and Vice President ordered waterboarding, therefore the President and Vice President ordered torture.

  15. Well, this would all be much easier if Congress framed it correctly: as an investigation into the crime of the torture of suspects. As a criminal investigation into the President’s and Vice President’s direct role in ordering torture, privilege arguments would be greatly reduced. With the current preference to treat this as obstruction issue alone, the Democrats are strengthening privilege arguments since Bush and Cheney can claim no direct knowledge or order on obstruction.

  16. I’m waiting for Cheney to come up with yet another inventive argument citing conflict of interest or something…

    After all, the vice president’s office is a “unique” office that while part of the executive branch, deserving of privilege, is, primarily, attached to the legislative branch as evidence by the momentous, albeit occasional, tie-breaking role as ex officio president of the Senate.

    Of course, the argument is just too funny as one would not hold the legislative position, second, without having been, first, elected to the executive to begin with.

    And I am waitin’ for it, anyway.

  17. And this from the Office of Management & Budget to the 110th Congress dated December 11, 2007:

    Statement of Administration Policy

    re: HR 2082 Intelligence Authorization Act for Fiscal Year 2008

    Requirement that Executive Branch Agencies Use Only Interrogation Techniques Authorized by the Army Field Manual

    Section 327 would prevent the United States from conducting lawful interrogations of senior al Qaeda terrorists to obtain intelligence needed to protect Americans from attack. Such interrogations have helped the United States disrupt multiple attacks against Americans at home and abroad, thus saving American lives. The Military Commissions Act of 2006, enacted just over one year ago, struck the acceptable balance with respect to collection of intelligence from captured terrorists. Section 327 would prevent the President from taking the lawful actions necessary to protect Americans from attack in wartime.”

    Even the OMB is getting in the act.

  18. Infuriating and predictable. From an earlier post:

    “any request for tapes, reports, or other testimony will most likely be blocked.

    Please note the Administration’s response to the Intelligence Authorization Act for Fiscal Year 2002, Sec 305. on reports tendered to congressional committees.

    It prompted a signing statement from the WH:

    “Violates the President’s constitutional authority to withhold information, the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive or the performance of the Executive’s constitutional duty.”

    Also there was another signing statement to the same effect on a section of another bill concerning the Department of Justice tendering reports to Congress on an ongoing DOJ investigation of the time…

    The language (if I recall) was something like “interferes with the deliberative process of the Executive” I will go through my 174 page pdf file and see if I can find the cite.

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