As leaders in both parties in Congress and the Justice Department seek to scuttle any real investigation into America’s torture program, a federal judge may have thrown a wrench into the works. This week, U.S. District Judge Richard W. Roberts not only found the tapes to be evidence but demanded that the government file a full explanation on their destruction in 2005.
Most notably, Judge Roberts found that the tapes were presumptively relevant evidence in the case — a key element in finding obstruction or spoilation. Roberts issued an order to preserve evidence in July 2005 and now wants an answer by February 14th on why that order was violated.
He is only one of various judges who are looking into such possible contempt and criminal conduct in the destruction of the tapes. U.S. District Judge Alvin Hellerstein in New York recently also indicated that the destruction appears to have violated past orders in that case. Other judges are making similar inquiries.
U.S. District Judge Henry H. Kennedy recently took a more passive stance. Kennedy indicated that he would give the Justice Department time to investigate — itself.
The Justice Department is the very party accused of contempt and obstruction. It is the institution that told judges like Judge Brinkema in Virginia that no such tapes existed when they did. More importantly, in a contempt circumstance, it is the duty of the court to make an independent inquiry. If this were a private party, it would be odd for the court to say that it wants the accused party to first investigate itself. Instead, a court issues a show cause order that tells the party that it wants to know why it should not be held in contempt. The party is then given time to muster its facts and filings. This would have been the better course for the court. Instead, the court is practically leaving a judicial matter (contempt) in the hands executive branch, which is investigating itself.
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.
In the meantime, the top Democratic and Republican leaders have worked to guarantee that none of the investigations seriously look into the crime of torture. For a prior column, click here
For the most recent story, click here