The White House may have told District Judge Henry H. Kennedy not to “interfere” in the CIA tape controversy, but he appears to have other ideas. Today, he ordered a hearing for Friday on the question. He may be only the first judge to do so as the courts and Congress come to grips with an obvious case of obstruction and spoilation.
In June 2005, Kennedy handed down an order for the Administration to preserve “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 and the Administration is relying on a technicality — the two suspects tortured in the videos were not in Cuba. However, such preservation orders are supposed to be given liberal interpretation. Moreover, the government knew that the tapes have been sought by Congress and other courts. Finally, it knew that the tapes would likely be sought in this and other cases, including in the inevitable filings of Abu Zubaydah and Abd al-Rahim al-Nashiri.
In addition to obstruction, false statements, conspiracy, and perjury, there is spoliation where there is the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim. This applies to “pending or reasonably foreseeable litigation.” It has been defined “the destruction or significant alteration of evidence, or the failure to preserve crucial items as evidence in pending or reasonably foreseeable litigation.” This would clear meet that standard in my view.
It is good to see the court acting promptly. In the meantime, the public has once again heard the “silence of the lambs” in Congress. After cries of outrage, Democratic leadership has remained conspicuously silent about the fact that the tapes contained evidence of the crime of torture — ordered by the President with the knowledge of ranking members of the Administration (and Democratic and Republican members of Congress).
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