Unto Their Own Hands
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
So it has come to this in a nation governed by the rule of law: an agency of the executive branch, apparently advised by the White House and Justice Department not to destroy vital legal and historical evidence, does so anyway, in its own name, for its own purposes and without first taking it to the courts.
Already we are hearing familiar justifications for why the Central Intelligence Agency evidently took it upon itself to destroy tapes of terror interrogation sessions. Even though the tapes at the time were material to a pending capital case and had enormous historical value, the CIA now claims it trashed them in the name of national security, for the safety of the interrogators (whose identities our best spies apparently were unable to conceal) and to eliminate potentially incriminating evidence against the men.
But, as the investigations heat up and as the legislators cry foul, there is no spinning the irony in the fact that the people who may have covered up a crime by destroying evidence are much more likely to get into much more trouble than are the men asking the questions on those tapes. This is so even if some unknown lawyer at the CIA gave agency officials permission to eliminate the tapes.
Let's look at the underlying "crime" first. Even if intelligence officials or military personnel "tortured" certain detainees - and, really, does anyone anymore believe they did not? - a virtual fortress of legal and political precedent would have protected them from prosecution in our civilian courts (or anywhere else). Just look at how hard it is proving to prosecute civilian contractors whose conduct allegedly resulted in mass murder. No national security defenses there, right?
Indeed, military law would have firmly protected interrogating soldiers who were following orders from the Pentagon and Justice Department. Civilian law would have protected the spies for their conduct. It would have taken a significant shift in legal precedent to change all that. Remember the White House's infamous "torture" memo? It was designed in large part to give legal cover to the very interrogations the taping of which led us to this.
Now, let's look at the so-called "cover-up" - the destruction of the tapes. And let's for the moment discount any warnings or legal advice offered by the White House or Justice Department - circa Miers and Gonzales we may never really know what went on. By the time the tapes were destroyed - sometime in late 2005 - the federal judge in the Zacarias Moussaoui terror conspiracy trial had asked government lawyers to turn over for review evidence about terror interrogations.
It's true that the federal government is notorious for cognitive dissonance - and any U.S. Attorney you will ever meet will tell you a story about how officials in another department or branch refuse to turn over (or failed to acknowledge the existence of) requested evidence. But this is not the Federal Deposit Insurance Corporation failing to turn over a box of bank documents to a federal prosecutor. This scenario is at the extremely harmful end of the scale which weighs justice against bureaucratic intransigence.
Here we seem to have the purposeful destruction of potentially exculpatory evidence needed for a pending death penalty trial (Moussaoui's). And we have it, apparently, without any sort of prior legal authorization offered by the Justice Department. No one at Justice, in other words, even took the time to gin up the equivalent of the infamous "torture memo" as a legal excuse to destroy the tapes. Such a memo, in fact, would have made the "torture memo" itself seem as reasonable and rooted as the Magna Carta.
To me, all of this sounds like a textbook case of obstruction of justice. Really, you can't obstruct justice much more than intentionally getting rid of material evidence that might have saved a man's life (without the tapes to help him, Moussaoui eventually was convicted and sentenced to life in prison). And it's hard for me to believe that a trial judge would accept any justification offered by a federal official who destroyed evidence instead of turning it over to that judge for an in camera (private) review.
If indictments do arise from all of this, I would welcome a trial at which CIA officials and their lawyers come to court to explain the agency's conduct. Indeed, I would have welcomed that explanation during the Moussaoui trial, when it might have made more of a difference. But the CIA wanted no part of that fight then and certainly won't be eager for it now. That's why its agents, quite literally, took the law into their own hands - and destroyed it. Of all the constitutional shortcuts our government has taken in our name in the war on terror, this one ranks among the most disturbing.