EW – while you are sending out emails or making calls, think of one to Lew Koch or directly to Andrew Patel. I sent Lew one last night, but he doesn’t really know me and I may have been spammed.

IMO, there are actually 4 court cases very much implicated, not three, and then there are the military CSRT and tribunal issues and two Congressional investigations that I can think of off the cuff and there are certainly strong hints at there being an internal investigation. I think the 4th court case, Padilla’s, may actually make the strongest criminal case against DOJ, without regard to any specific court order.

BTW – Scott Horton has another of his excellent pieces up that is really worth the read IMO. http://harpers.org/archive/2007/12/hbc-90001917

The only thing I think he misses is that I’ve become increasingly certain that complicity of Pelosi and Reid are why Congressional action are blocked. I threw up a diary at kos yesterday (not really a good place to call out top dems, but the easiest place for me to put something up and be able to find my links later from the my page function) about how it makes no sense that, after the revelation of the briefings to the “gang of 4″ no one has stood up and demanded to know why the National Security Act was not followed and briefing given, as it was in the domestic surveillance case, to the full gang of 8. Especially with Pelosi, as former intel ranking member who was briefed in 2002, knowing about the briefings. Doesn’t pass the smell test imo – Pelosi and Reid almost have to have been included in the briefings.

In any event, here are the cases/issues, briefly, where there is impact vis a vis the destroyed tapes.

1. The case in front of Judge Kennedy (although I have heard that Judge Kessler may have also issued a similar order). That is a case that was based on mistreatment of detainees at GITMO and supposedly Judge Kennedy issued an order preventing destruction of evidence. Keep in mind, there is generally not a need to enter orders on destruction of evidence, it’s something that lawyers KNOW is obstruction, even with NO ORDER, and you are not allowed to do it. Period. Still, a court order makes it pretty damn clear to all involved. The order in Kennedy’s case may be subject to parsing, however, bc I am not sure who the party-plaintiffs include. I’m going to toss out that DOJ may be able to parse that one successfully, but it will be at the continuing cost of Fed Judges realizing that DOJ lawyers are pretty much by definition lying weasels who have to have things spelled out so strongly that they are given no wiggle room. If there are no party plaintiffs who include those on the tapes or those whose detention is based on statements of those on the tapes, then the obstruction issues fade here and it is a parsing of the order on contempt issues IMO. OTOH, any tapes destroyed of someone who is arguably a party plaintiff in Kennedy’s case is a big deal. Still, the case is not in a criminal setting and no US residents/citizens are involved to my knowledge. However, while the black sites may not have been acknowledged when Kennedy made his ruling – the US detention of Zubaydah HAD been acknowledged. Bush made a speech about it (see Suskind’s book for the references). It would be pretty reasonable to beleive that Zubaydah, who the President said was in US custody, was at GITMO instead of a hedonistc black torture site set up for the jollies of Tenet, Addington, Cheney, Hayden. To borrow a phrase from the Bush admin – “who could have anticipated” that Bush used America to set up his own private Gulags?

2. The ACLU case in front of Hellerstein is a FOIA request case. I think his court orders may be the strongest on point, but may have the weakest obstruction aspects. I don’t think anyone questions but that it may have been difficult, via a FOIA request, to have all kinds of information on intelligence questioning just turned loose. And the FOIA isn’t tied to particular criminal or military tribunal cases. But the orders from Hellerstein appear to have been very specifically on point as to what could or could not be destroyed without his ok and the tapes were pretty clearly included.

Interestingly, DOJ asserted to Hellerstein, IIRC, that one reason they couldn’t turn over was that the tapes were being used for an internal investigation. Hello Mukasey – that investigation you seem to be so sold on – didn’t your guys already tell a Judge it was taking place? So it was pretty interesting that one thing Hayden stressed was that the tapes were no longer relevant to any internal investigation either. If I’m Hellerstein, I guess I’m going to want some in camera info on what that investigation found when it reviewed my now destroyed tapes. So I guess the DOJ drill was: We can’t turn this stuff over or even catalog it yet bc it is being used for an internal investigation, but as soon as the investigation is done you can be assured we will – – – still not turn it over and destroy it in violation of your order. Uh huh. This is a big problem case for the lawyers involved – maybe less so for the administrative players on the obstruction front. We’ll see I guess (and bmaz is a much better litigator/crim case guy to call this than me – lhp as well).

3. The Moussaoui case. In this case, Gov was not using anything from Zubaydah (and others) to INculpate Moussaoui. They have the other info from actual solid work to rely upon. Gov went after Moussaoui, in essence, on two fronts. First his terrorism affiliations in general front, and his “aspirational” terrorism aspects and more than aspirational ties to al-Qaeda. However, none of that put the death penalty on the table and McNulty, Bush, Ashcroft, Cheney etc. wanted to kill Moussaoui. So they also went after him for his “knowledge of” and “failure to come forward to stop” 9/11 as grounds for the death penalty.

Moussaoui, in his nutso way, claimed that there were a half dozen or so alleged terrorists, allegedly in US custody (some, like Zubaydah, admittedly so) who could give EXCULPATORY evidence on this charge, which would show that he didn’t know about 9/11 and so couldn’t have come forward to stop it. [This is where the Moussaoui defense and the airlines aligned against gove some – there are cases against the airlines that said they should have been better geared for protection against something like 9/11 and the airlines are saying that, no matter how much info they might have had, there would be no way to have prevented 9/11 so they were not negligent – – and Moussaoui’s defense was to the same, that his ramblings about al-Qaeda wanting to use planes againt the US couldn’t have been enough info to have stopped 9/11 since it was no more than what was already known and what didn’t stop 9/11]

So Judge Brinkema’s orders in 2003 and 2005 were pretty important with respect to when and how Moussaoui might be able to defend himself with exculpatory evidence. Eventually, Moussaoui prevailed on the use to which that evidence was going to be put – – avoiding the death penalty. So the obstruction gets less clear. OTOH, his guilty plea on some of the non-death penalty aspects may well have been prompted (his lawyers will argue) by frustration and fear based on inability to get access to the exculpatory info from the specific half dozen or so terrorists he requested. I don’t think we know who those are other than by speculation and press reports, but there’s no way Zubaydah wouldn’t have been on there, since Moussaoui made very public calls that were openly reported for Zubaydah to be allowed to come testify and, again IIRC, M called Z his “commander” or some kind of militaryish title.

CIA spokespersons have already been trying to say that, as with the Kennedy case, the tapes destroyed here did not specifically include the terrorists named to Brinkema, but the leaks that the tapes included Zubaydah’s waterboarding are cratering that. So the DOJ agents who went back to the Judge in Sept with the “found” tapes, are now going to have to go back again I would guess re: the destroyed tapes (or will be ordered to by the Judge if they don’t make the contact voluntarily) and we will see if they continue on the “it was someone else on the tapes we destroyed” argument or if they will call Hayden and his direct spokesperson, Gigliamo, (sp?) liars or if they will just sit mum and invoke state secrets/national security in connection with the destruction of the tapes. That’s the step I’m anticipating – a claim that the Article II nat. sec. powers control over court orders with regard to what intelligence info is preserved or destroyed. Which, IMO, takes us to the case that brings the court’s power against such a claim to its hightest grounds:

4. Padilla. This is where things get very clear on the obstruction front IMO. Without regard to any court orders to preserve. Padilla was originally picked up on a (misused) material witness warrant that was issued by Judge Mukasey based upon a declaration filed by the FBI for gov (Enis? Ennis? was the agent’s name). Very soon after Padilla’s initial arrest as a mat. witness, his lawyers filed to have him released and directly attacked the Ennis declaration and the sourcing on the arrest warrant. The issues was directly and specifically framed to the court and made that the two sources on which the warrant was based were Zubaydah and Binyam Mohammed and that both of those men had been tortured and the warrant was therefor invalid.

At that point, anyone destroying tapes about Zubaydah’s questioning were destroying evidence of deceptions used to obtain judicial process and as Padilla was disappeared, evidence used to send a US citizen on US soil into black hole torture. Also evidence that may (or may not) have been concealed from not just the SD NY and Second Cir in their habeas proceedings, but from the Fourth Cir in their detention rulings. And when Padilla was sent from years of blackhole abuse to Florida for the Zuchinni Trials, the issue of his arrest warrant was AGAIN raised, directly tied to the government’s inculpatory actions against Padilla and whether or not they were based on torture, and no one told the Judges of the destroyed torture tapes.

To me, this is the case where obstruction looms largest. I have a hard time believing that, with the years of heated discussions regarding the tapes, McNulty (who had been in charge of the Moussaoui case)knew nothing when he was coming on as DAG (with the tapes destroyed soon after his nomination annouced), but more importantly, what did the engineer of the Padilla disappearance and later Padilla “press conf” know? James Comey was directly involved in picking up Padilla as a material witness.

Prior to the FBI giving its declaration to Mukasey, you have FBI agent Dan Coleman who was involved in the Zubaydah interrogation making no bones about it to anyone who spoke to him that the CIA was torturing a crazy man. It’s hard to believe that Comey had no knowledge of this. Go look at the overlaps with those guys. Or that Comey and FBI had no knowledge that an FBI agent threatened to arrest the Z “interrogators.”

Even if they didn’t, though, go look at the Comey presser he gave on Padilla. The whole first part of it is all about how he has reviewed all kinds of things and that there has been unprecedented cooperation by the CIA etc. and then he goes on and on and on about Zubaydah. OK – by then, who thinks he and Goldsmith would have been out of the loop on the “heated debates” between DOJ and CIA and WH on destroying the tapes? Or that he would know nothing about them before he gave that presser? Or that he would know nothing about Coleman’s information when he gave that presser?

Why isn’t anyone asking McNulty and Comey to come back and talk a bit more to the Judiciary Committee or Intel committee?

Wow this got long – Sorry.

But as a quickie thing – you also have the tribunals and CSRTs that are tainted by the destruction of evidence; you also have Zelikow (who I do, reluctantly, think well of) who is saying that the 9/11 commission specifically requested this info and never got it; you also have the Congressional inquiries into Abu Ghraib where the issues of US policies re: torture were raised and where there were repeated assurances that Abu Ghraib was not “bleed through” of CIA approved and military intel approved policies, but just some rogue soldiers. BTW – I left out their criminal cases, but if I were there lawyers I would be demanding some reopening baesd on destruction of evidence that torture WAS US policy and US President/Commander in Chief approved.

must
stop
now *g*

66 – So Nancy’s briefings on this stuff actually largely STOPPED when she became minority leader in 2003. And Reid’s have never been that detailed

That’s my point EW. Those things don’t make sense I quite frankly I do not believe them, but they would certainly, if nothing else, make it seem exceedingly odd that Pelosi and Reid are not standing up and demanding to know why they were NOT briefed, when the Nat Sec. Act REQUIRES – as law of the land – that the full gang of 8 be briefed on those kinds of activities. It especially does not make sense that the CIA and DOJ and VP and Pres would not brief the full gang of 8 AFTER a part of the gang of 4 moved over to “8″ status and would have know that half of those required by law to be briefed were not being briefed.

Why isn’t anyone demanding an investigation into that breach? Why isn’t Reid banging his fist and saying: why were only ranking intel members briefed and why wasn’t *I* briefed as minority leader? Why isn’t Pelosi doing the same and why did Pelosi say she knew all about Harman’s letter (after Pelosi was supposedly no longer being briefed?)

And why didn’t Pelosi tell them to brief the full gang of 8 as required by law or that she would stand up on the floor and, without revealing sources and methods (except as she damn well decided too since she has absolute immunity for what she says on the floor) say that she knows as a former Intel member that the Admin is illegally engaging in activities without breifing either the full intell committees or the full gang of 8, and so was violating the Nat Sec Act??

I think it’s because, despite the NYT reference, the full gang of 8 was being briefed on torture (likely domestic surveillance as well IMO). And of that Gang of 8 at the applicable time periods, the only members of the 8 who are still in office and looking at running again are Pelosi and Reid. If they knew and were briefed, they have about as much interest as Bush in making sure that who knew and when never gets very thoroughly addressed. If they were not being briefed, they should have been IMMEDIATELY raising that as a violation of law once it came out – which would look very disingenuous from Pelosi, wouldn’t it? After all – she knew, but never demanded more briefings when she became minority leader? She wasn’t briefed after 2002, but knew all about Harman’s 2003 letter?

The smell test is invoked so often for good reason. Not one thing about Pelosi or Reid’s reactions to this – or to domestic sruveillance for that matter – smell right. How do we know for sure they were not briefed before March 2004? Has anyone asked them, under oath?

It’s all pretty good reason for Reid and Pelosi to not want thorough investigations that might show, going into elections in 08, that top Dem leadership knew a whole lot and went along. Maybe even, as the one article implied, encouraged more.

How is it that we hear over and over that there are no torture and FISA real investigations and follow up bc the American public doesn’t want it, they want bipartisan kumbayahs, but something quite a bit more “off the public’s radar” like the US atty situation has had full steam ahead treatment? Maybe bc there is a BIPARTISAN interest in covering up the torture and domestic surveillance, but the USAtty scandal is one that Dem leadership really wasn’t involved with and are pissed off by?

I dont’ know, don’t claim to know, but do claim none of it smells right. I approach the Constitution right now like it’s my client, and I would not be entering into a joint defense agreement with Pelosi and Reid, even just based on the smell test. Bc it’s a pretty strong smell IMO.