Not Three Branches, Not Two Branches, Just One Branch of Government

Apparently, in addition to sending out a chain letter stating "butt out" to five or six members of Congress yesterday, DOJ also sent a letter to Judge Henry Kennedy, telling him not to get involved in the torture tape question (h/t Scarecrow).

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.

In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

Now, BushCo is apparently claiming–to Kennedy, at least–that the CIA was free to destroy the torture tapes since the tapes didn’t come from Gitmo.

Kennedy ordered the administration in June 2005 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 recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Of course, such sophistry won’t work for Leonie Brinkema–whose questions about interrogation tapes would seem to have included the Abu Zubaydah tapes. Nor should they cover the FOIA court battle in Alvin Hellerstein’s court, which pertain to all detainees held abroad.

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

That is, either Kennedy’s order or Hellerstein’s order must have applied to those tapes when they were destroyed.

But apparently, DOJ is going to tell every other branch the same thing: interviewing people from the CIA might complicate the joint DOJ/CIA investigation of the torture tape destruction.

Funny. Less than a decade ago, I seem to remember, we had three full and independent branches of government.

  1. nolo says:

    i suspect this won’t gain much
    traction in kennedy’s court room,
    and i am certain it would be seen
    as potential obstruction of justice
    in judge brinkema’s court room for
    exactly the reasons EW has laid out.

    there will be one branch, only if we
    lie down, and let it be so
    . . . the a.c.l.u.,
    the e.f.f., c.r.e.w. and many others
    will not go so quietly. . .

    great reporting/dot-connecting here, EW!

    p e a c e

  2. OldCoastie says:

    how come, every time I turn around, the admin is telling someone somewhere to “f*uck off”?


  3. NCDem says:

    The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists

    We are suppose to allow the DOJ to continue its investigation into the destruction of the tapes without interference from Congress or the courts. Why? According to an above statement, there is no need to investigate. There will be no investigation. A decision has been made already. Bush, Cheney, and Mukasey have decided already that the CIA was not obligated to preserve the tapes.
    Based upon this statement by Assistant Attorney General Jeffrey S Bucholtz, I would suggest that Congress haul his butt up to Congress and read the Constitution to him. It sounds like a decision has been made and Mukasey must now either stand with Bush and Cheney or stand with the Constitution. Unless he didn’t know that Bucholtz was filing this with Kennedy’s court, he has already made this political just by making the filing. If I were in Congress now, I would have Mukasey in front of the Judiciary Committee so quick it would make his head spin. Thank you DiFi and Chuck Schumer.

    • emptywheel says:


      If, as Phred suggests (and I’ve been wondering) BushCo sent similar letters to Brinkema and Hellerstein, then I would agree with you. But the reason they said they were not obliged by Kennedy’s order has to do with the location of the interrogations.


      I’ve written the ACLU for an answer on Hellerstein. For Brinkema, the ED VA courthouse may know, Brinkema’s clerk.

  4. phred says:

    EW, it seems to me that if a letter was sent to Kennedy, then letters probably went out to Brinkema and Hellerstein as well. Is there a handy place to look for those additional letters?

    Also, given the Savage article in the Globe this morning (h/t BayStateLibrul, in the thread below) about Bush’s attempt to stifle legal dissent within the ranks, it also seems to me that now that BushCo has brought the legislative branch to its knees, it’s now in a full court press to subdue the Judicial Branch.

    This again raises the question of why the Judicial Branch is will to defer to the state secret argument. Surely the court must realize it is in their own best interest to adjucicate whether the executive branch is conducting the affairs of state lawfully.

  5. behindthefall says:

    Does some organization evaluate the workings of the various national governments around the globe, paying attention to how closely the actual practices adhere to the stated ideals? By now, we must be in the slop bucket at the bottom of the list. Bush does a pretty good version of an absolute monarch — “I am The State!” — which has nothing whatsoever to do with what we thought we were, sadly.

  6. LS says:

    I’ve been listening to the Gitmo detainee hearing again – it’s on CSPAN right now….

    I caught something that Thomas Hartmann said. He said that there is a facility being built in Puerto Rico that will be opened in March, and it will “house classified information“…

    Now…to me..that signifies the same thinking as used to put Gitmo on Cuba; i.e., classified information will be stored outside of the reach of American courts….

    Also, yesterday, on my surfing travels around the net, I came across a discussion in a PDF (I just can’t remember which one) about the “agencies” looking for a secure location to store classified information. I’ll try to find it. Anyway, I thought this was a pretty devious development, and I don’t know how extensive, but I suspect they are planning to offshore “all” classified information somehow, so that no one in the courts in the US can access it for, say, war crimes…

    • emptywheel says:


      Have you got a time frame for us? Could it have happened around September 13 or thereabouts? That might explain why they suddenly found the other three responsive tapes.

      • phred says:

        How do you figure EW? If they were/are building an out-of-bounds spot to hide classified material, why not just chuck the “found” tapes down the rabbit hole and never acknowledge their existence?

        • nolo says:

          i don’t want to get us
          side-tracked here, but i
          think the reason the CIA
          did not just put the tapes
          down a rabbit-hole is that
          they knew the tapes were
          originally digitized, and
          sent over a secure line,
          electronically, from gitmo, or
          elsewhere, to the CIA here in
          the US. that created multiple
          electronic copies. lord knows
          how many right-thinking CIA
          people now possess a “back-up”
          copy somewhere. . . and those
          may yet leak out.

          just my WAG.

          we now return you to your thread.

      • LS says:

        Well, he was talking about upcoming military tribunal cases (about 80 of them)…and then he started talking about all this stuff at Puerto Rico, which is where the tribunals will take place, as I understood it…I think…then he suddenly blurted out about this new facility that will be completed in March ‘08, and he specifically said to house classified information…not just classified information in relation to these cases..he said classified information. Well, the materials that are classified that they are using in the military tribunals must be kept somewhere right now, and I’m guessing that it is being kept either at Gitmo for now, or already in P.R. I also thought that they looked through their stuff and found the other evidence there. I’m pretty sure the torture info is being kept “offshore”. Hartmann alluded to access to evidence having been obtained by torture, but he wouldn’t be explicit obviously, but he did say that such evidence would be evaluated as being admissible in the tribunals. I got the feeling that he’s on our side.

        • PetePierce says:

          If I remember correctly, and I’m having trouble with links I make adding onto both sides of the url once they are made or I’d try to show this, Hartman explicitly testified he thought there was nothing wrong with destroying tapes implying illegal activity as long as U.S. agents were doing the illegal activity outside the U.S.

          Can that get any crazier? What am I missing here. People are prosecuted regularly for offshore illegal activity.

          I understand the premise is that this administration basically has a firm belief that they are beyond good and evil for the “greater good” and it’s hardly an abstract concept.

          I’m sure Cheney would say that the only thing wrong with Nixon tapes or Deep Throat or anyone who implictated Nixon was that they were found out.

  7. LS says:

    Now, it occurs to me that it was perhaps Hartmann who brought forth the other tapes…not the CIA, because he heads Gitmo tribunals and has access, presumably to the evidence, and he kept saying that he has changed the way things were done previously…he told Cardin, I think, that he would be “proud” when he found out how things were being handled once the information comes out…

    Who knows.

    I want to read the transcript.

  8. BayStateLibrul says:

    Bush pushes the Easy Button…. “That was easy… we will just tell
    the Federal Court to cram it…

    Remember Bush said he learned of the tapes destruction… a week ago

    How come the MSM is not all over this?

  9. LS says:

    Now this is weird…this article is saying that the “facility” for the tribunals is being built on the runways at Gitmo…to be completed in March; whereas, Hartmann definitely said a facility to be built to house classified info to be built in P.R….to be completed in March.

    So, I’m guessing, they’ll keep the info in P.R., and the prisoners will be tried at Gitmo.…..bunals.php

    (note the article originates in P.R.).

  10. JohnJ says:

    I smell FEAR in the air. Moving stuff overseas to keep it from their own government is pure panic.

    This whole thing is looking like, not a centralization of our government, but the formation of an alternate government.

    I’ve seen this tactic used within a business before:
    – Quietly start an “accidentally” redundant service,
    – Pretend that if both service suppliers do the same thing, they must be equal and start taking resources from the legitimate service.
    – Relentlessly take power and resources from the legit until they can no longer function.
    – ta dah .. a new service without any inherited rules or limitations.
    – Management for whatever reason won’t stop it.

    They are not subjugating our government; they are distracting us while they replace it.

  11. marksb says:

    So the courts cannot view or have knowledge of the contents of the tapes because it would interfere with the Congressional and DOJ investigation. Congress cannot talk to anyone who has anything at all to do with this thing, as it might interfere with the DOJ/CIA investigation into itself. And if something does come out or get leaked, no investigation will happen because the administration will not cooperate, since laws and EO’s don’t apply to this president or his VP anyway.

    Woke up this morning and found myself down the ol’ rabbit hole. Might as well try some of these mushrooms, huh?

  12. Richmond says:

    Puerto Rico is part of the U.S. so there may be something here on states &/or congressional representation and off-shoring documents. Ditto on Halliburton & Dubai. I assumed that was for tax reasons principally, but perhaps there is something linked to classified materials too.

  13. Richmond says:

    Maybe, assuming that one can get around the pixie dust, Congress should intervene in where classified materials can be stored, and where businesses doing contract work for the U.S. can have their headquartrs.

  14. marksb says:

    JohnJ, if a criminal or civil matter is brought against an on-shore corporation, the fact that some of the company is of-shore doesn’t let them off the hook, right? Seems to this bear-of-very-little-brain that if Congress (like that’s gonna happen) or some court requires a document or tape/digitized media, just because it’s stored off-shore doesn’t stop the requirement, right?

    • JohnJ says:

      The more I look at it, the documents to PR doesn’t seem to do much. Just getting contracts to cronies makes more sense.

      The scenario of replacement more applies to the Intelligence services and the Big Dick’s operation.

    • phred says:

      rosalind, thanks for the link. I’m puzzled though, I thought there was a private aviation firm (I forget the name) based out of Tennessee that was reported to have been the private airline for CIA renditions. Am I mistaken? Or are there more than one of these handy little private aviation firms swimming in CIA contracts? From the article you link, it sounds as if the San Jose company was doing them all.

  15. earlofhuntingdon says:

    “Implicate?” I’m sure that’s a DOJ typo. It’s “incriminate,” as in, “might tend to incriminate me.” But I don’t think the Fifth Amendment defense is available to an entire branch of government.

  16. LS says:

    Sec. 2001.43 Storage [4.1].
    (a) General. Classified information shall be stored only under conditions designed to deter and detect unauthorized access to the information. Storage at overseas locations shall be at U.S. Government controlled facilities unless otherwise stipulated in treaties or international agreements. Overseas storage standards for facilities under a Chief of Mission are promulgated under the authority of the Overseas Security Policy Board.”……

    “Sec. 2001.46 Destruction [4.1, 4.2].
    (a) General. Classified information identified for destruction shall be destroyed completely to preclude recognition or reconstruction of the classified information in accordance with procedures and methods prescribed by agency heads. The methods and equipment used to routinely destroy classified information include burning, cross-cut shredding, wet-pulping, melting, mutilation, chemical decomposition or pulverizing.
    (b) Technical guidance. Technical guidance concerning appropriate methods, equipment, and standards for the destruction of classified electronic media and processing equipment components may be obtained by submitting all pertinent information to the National Security Agency/ Central Security Service, Directorate for Information Systems Security, Fort Meade, MD 20755. Specifications concerning appropriate equipment and standards for the destruction of other storage media may be obtained from the GSA.”…..ctive.html

  17. LS says:

    “The Destruction Evaluations and Guidance Branch of the NSA has determined that High Security Disintegrators listed on the Evaluated Products List (EPL) provide adequate security for the destruction of paper, optical media (CDs and DVDs) and punched tape as annotated on the EPL. The list of evaluated High Security Disintegrators includes the model numbers, capacities, manufacturers, and distributors. When destroying optical media in disintegrators, it is recommended that paper be mixed with the optical media during destruction. Please contact the manufacturer to determine if a specific product is mechanically suited for optical media destruction.”

  18. bmaz says:

    Ok folks. Puerto Rico doesn’t help the Administration as to secreting information. Not only do courts have reach there; they ARE there. There is a United States District Court in Hato Rey, a district in San Juan. Secondly, Richmond above is correct in that if US governmental agencies are in possession of things, US courts have the power to order them produced.

  19. JodiDog says:

    Again, the Magic Rabbit has disappeared!
    Oh, where, oh where can it be?

    Is Karl Rove behind the curtain?

    Remember, all, that legalities turn on a phrase,
    a word, a punctuation mark.

  20. bmaz says:

    nolo – From the last thread – What interview under oath of Jose Rodriquez? Are you nuts or what (heh heh said with complete respect and affection)? Rodriquez, at this point anyway, is the one with the most body parts in the wringer. He has lawyered up big time; Bob Bennett no less. Now, I don’t know what Bob will do; but if Rodriquez were my client, he wouldn’t be doing any interviews, under oath or otherwise, without every ounce of immunity I could humanly accumulate for him and even then, only after direct order of a court and interlocutory appeal therefrom.

    • PetePierce says:

      Bmaz and anyone else good enough to clarify me.

      I have three questions I hope you can help me out with, and any other Congressional aficianados who might be around.

      I am a little embarassed that I have them, but I’d be a lot worse offif I was dumb enough not to try to learn the answers.

      1) I really don’t understand the procedure or rationale that occurred at all yesterday orchestrated by Harry Reid. I fully understand the capitulation that’s occuring with the Dems and S. 2248 but why the Dems are voting with and for Bush and then trying to believe the public is too stupid to figure out the Dems don’t have the votes because they have stolen them–kind of like someone who sets their house on fire and then tries to collect insurance. (Less than great analogy but make no mistake. The dems are putting the wind in Bush’s sales on the FISA act and every thing else.

      I need help understanding what happened proceedurally.

      1)I don’t understand why he made the cloture motion signed by 16 or so Senators and then withdrew it. I also don’t understand the mandate business that was the topic of discussion on the thread yesterday.

      2) There is another aspect of Rule 22 I don’t understand. It goes like this. I haven’t been able to link since this morning because after I use the script engine or make an html link, something gets added to both ends of the url and I’ve emailed FDL help for help. If I could I’d link the url, but the url is…..Filibuster

      After I make the link, and/or name the link it turns into


      file://%22http:// and ” automatically add onto my link urls after I use the script box to make html links and I can’t stop this. I’ve scanned for spyware, viruses, and browser hijackers.

      Prolonging a filibuster after successful cloture vote
      While sixty votes is enough to bring a measure to the floor, a determined minority of senators can still delay a vote for about two weeks. Once a motion to invoke cloture passes, a group can still filibuster the bill itself, requiring an additional cloture motion. At that point, the Senate has another thirty hours to consider the bill again. Rule XXII limits the use of this tactic, however, for a vote must occur on either the 11th day of consideration or the 15th day after a motion to proceed was made.[38][39]

      Could any of this part of Rule 22 figure into S. 2248 or have you ever seen this?

      3) My last question is on the Nuclear Option and the gang of 14 that occurred when Bill Frist was SML.

      I never understood what was so special about the Republicans invoking a nuclear option if both sides of the aisle new nothing could stop the Democrats from doing the same thing if they gained control. I mean theoretically the Democrats have numerical control (not as much as the Republicans did when they threatened the nuclear option, but numerical control although in reality there is one party in Congress now and it’s All for Bush All the time.

      Thanks for any help with these.

      • bmaz says:

        Pete – You got me; the intricacies of parliamentary procedure in Congress is not something I know a lot about, and your question isn’t an exception to that general rule. No clue. Kagro X is the man for this; he is quite good at it. As to the nuclear option, it strikes me that it was such a concern because the GOP was sure they were going to be the majority for a long time, and the Dems thought so too; so the nuclear option terrified them.

        LS – The Pixie Dust Pipsqueaks probably have a different legal theory, but my interpretation is that coerced (i.e. torture) evidence is not ethically or morally admissible irrespective of it’s source. It is not where it came from; it is how it was obtained that makes it not credible.

  21. RodUnderleaf says:

    It is important to understand that Hellerstein thwarted the lawsuits of 9/11 victims. Like Mukasey, Hellerstein got alot of 9/11 judicial work for a reason. But it is not permitted to look further- investigations into these matters will be shut down.

    There are aspects to reality that even the best and brightest are best off to ignore.

    • PetePierce says:

      Does the link feature add on the same things before and after the url that I just posted I was having trouble with by any chance? I don’t think Safari should matter, but I’m using IE7 on Vista. I attributed my problem to some spyware or hijacker I can’t find, but if you’re having the same problem that changes things.

      • LS says:

        Just highlight the URL at the top of the page, and cut and paste it directly into the comment. That is the easiest way.

        • PetePierce says:

          L.S. lol thanks –that’s what I was doing, but the problem is the craziness doesn’t happen until after the link is made. I’ve been seeing this in Preview which is why I haven’t posted any links. In other words, I’m making the hyperlink correctly–never had a problem until this morning when the extra junk is added on to both ends but you only see it when the hyperlink is made by clicking the hyperlink and getting an error message saying the link is no good or rt. clicking the hyperlink and clicking properties and seeing the screwed up link that it has then made.

          This never started happening until this morning, and I have scanned for spyware and browser hijackers and looked for them in most of the ways there are to do that.

          • Stephen Parrish says:

            I don’t think it’s spyware or browser hijackers; I’m encountering similar problems with copying and pasting links using Firefox on my iMac.

            • PetePierce says:

              Stephen my problem didn’t start until early this morning, and it’s as I posted above with the “prefix” and “suffix” to the url showing only after you see the named link in Preview or would send (I didn’t send of course because the links are no good. I’m on a Windows box–I help an awful lot on the MSFT Vista groups, etc. but I can’t solve this one. If it were something with FDL, I’d expect many people to crop up with it.

              I love FF but I’ve been using IE7 lately. I gather then there is some FF problem that you’ve been having consistently before today. Maybe the FF groups could help. Then I’d wonder if you’re seeing what I’m seeing which is this.

              I’ll try to make a link. I suspect it won’t work for anyone but it’d be helpful for me to see.


              Rt. Click: Type COM////%22 File (instead of html)
              Rt. Click for link:

              The first looks normal, but it won’t make a hyperlink. Now I’ll type FDL in the brackets and it will show as a hyperlink but it will read out when you right click properties or try to click the link as shown:

              What normally happens and does happen until I hit preview or send:


              Link appears in Preview:

              Rt. Click: Type COM////%22 File (instead of html)
              Rt. Click for link:

              As you can see I’ve aquired file://%22 instead of (url in quotes) in front of the link

              and in back of the link I’ve acquired ////%22 (instead of /”>FDL

              I’m trying to figure out if it’s a file association problem, but most of my file associations work. I had to redo a couple of them this morning. For whatever reason,Vista lost my restore points so I didn’t have an SR point to try.

              Thanks much

            • PetePierce says:


              I help a lot on the Vista groups and XP groups when it was the latest Windows OS for years. LOL thanks but I tried that and it doesn’t work.

  22. Hugh says:

    Hartman was a corporate lawyer who was brought in relatively recently to the Guantanamo process. He is supposed to be part of the convening authority whose job is to approve or reduce charges or sign off on plea deals. It is not an arm of the prosecution but is supposed to be an impartial monitor to the proceedings. Hartman first came to my attention when Morris Davis the chief prosecutor resigned citing specifically Hartman’s inappropriate efforts to push the prosecution into making the most serious charges possible against detainees.

    In his Congressional testimony, Hartman refused to say that waterboarding was torture even if it was used by a forein government against US service men and women. He also said he had no problems with evidence based on torture being admitted (if it was approved by the commissions). Since there are no real safeguards in the system with habeas removed, this is tantamount to an endorsement of the use of such testimony.

    Hartman is very much not on our side.

    • PetePierce says:

      Interestingly Hugh many of the best pro bono lawyers besides the excellentlaw professors and terrific lawyers from constitutional law foundations who have been working these Gitmo cases are from silk stocking corporate law firms–and a little bit ironically the same firms that are on Verizon’s roster of law firms and lobbyists to gain Telco immunity and any other provisions favorable to them.

      They have complained bitterly in the press and in briefs that Hartman is blocking access to their Gitmo clients and many other tools normally part of a routine defense that they need to use to defend the Gitmo clients not to mention the components of the insane and clearly illegal Military Tribunal system.

    • PetePierce says:

      I looked all over the place L.S. and couldn’t come up with one except for a paid sight. I’ll continue to try. Sometimes there are streams of the hearings posted and sometimes not.

      If *selise comes on a thread, he’s pretty resourceful at hawking links to Congressional hearings, etc.

  23. LS says:

    Here’s what I was thinking…contractors who are not US citizens are not prosecutable under US law if they conduct torture when they are not on US territory. The question is, if a detainee is tortured by a Syrian in Syria, having been rendered there for interrogation by the US, and then the US tries to use the “product” in the military commissions tribunals….is that admissible, and does that depend on whether the detainee is a US citizen or not (considering Hamdi and Padilla…I guess it doesn’t matter anymore)…because they were charged as being enemy combatants rather than US citizens charged with treason…they should have been charged with treason, except W “determined” personally by order, that they were enemy combatants…at least he did with Padilla. I’m not even sure if Hamdi is American or not. Just thinkin’

  24. Hugh says:

    Re Hamdi, On June 28, 2004 SCOTUS 8-1 ruled that U.S. citizens can not be detained indefinitely as enemy combatants without due process. Hamdi was released to Saudi Arabia on October 9, 2004 on condition that he give up his US citizenship.

  25. Rayne says:

    Good God, I just had a horrible thought after reading LS’ hypothetical about Syria…

    What if the bombing in the desert was a black site?

    • LS says:

      They destroyed the tapes…why not destroy the entire “evidence”…to protect everyone involved from international war crimes.

      Who knows…that certainly could explain the “silence” from the US, Syria, and Israel. If that had been a nuke facility, they would have capitalized on it, wouldn’t they?

      I put nothing past these people, absolutely nothing.

  26. LS says:

    I’m still very concerned about what happened to the 400 plus that were “released” from Gitmo. Dead or alive?

  27. Mary says:

    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.

    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.

    now *g*

  28. emptywheel says:


    Need to go back and read the rest of your post.

    But the Gang of Eight WASN’T briefed on FISA–not until the March 10, 2004 briefing. And they weren’t briefed again until January 11, 2006–after the Risen/Lichtblau revelation. 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.

  29. nolo says:

    a “reprint” here to bmaz:

    . . .Are you nuts or what (heh heh said with respect and affection)? Rodriquez, at this point anyway, is the one with the most body parts in the wringer. He has lawyered up big time; Bob Bennett no less. Now, I don’t know what Bob will do; but if Rodriquez were my client, he wouldn’t be doing any interviews, under oath or otherwise, without every ounce of immunity I could humanly accumulate for him and even then, only after direct order of a court and interlocutory appeal therefrom. . .

    hey bmaz — again, i’ve emphasized the part
    of yours, where i think our views depart
    from one another.

    i think he’ll sing — under oath, and
    with immunity — and soon. as you point
    out, he has, essentially, life in prison to lose.

    i knew of bennett’s retention — but let’s remember
    that what everyone says rodriquez did, constituted
    multiple felonies. i guess you think he wouldn’t be
    immediately indicted, were he to decide not to
    cooperate. mukasey strikes me as the kind who
    will act quickly and decively to have him wearing
    orange, especially if he doesn’t roll-over. there
    is more than enough sworn testimony to win a life-
    sentence conviction against him, right now.

    so i think bennett will have to
    deal — a smallish plea, perhaps
    failure to preserve records, for immunity.

    yep — you are right:
    bennett will get him immunity,
    but then he’ll sing.
    loud and long, and
    indeed quickly, i suspect.

    again, we’ll see.
    so we’re clear, i meant no disrespect.

    and bmaz is right about the whole
    puerto rico being subject to all
    federal law — i’ve been to the
    federal court house in hato rey. . .

    p e a c e

  30. LS says:

    This is a piece that extracts out the names that come together via Mary’s comment….the usual players…interesting to see the pattern, even though it looks like gibberish:

    Padilla’s – Judge Kennedy Judge Kessler detainees at GITMO -black sites – the US detention of Zubaydah HAD been acknowledged. Bush – 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. – Hellerstein is a FOIA request case. Hello Mukasey – Hayden stressed was that the tapes were no longer relevant to any internal investigation either. Moussaoui case. terrorism affiliations in general front, and his “aspirational” terrorism aspects and more than aspirational ties to al-Qaeda. McNulty, Bush, Ashcroft, Cheney etc. wanted to kill Moussaoui. “knowledge of” and “failure to come forward to stop” 9/11 as grounds for the death penalty. Judge Brinkema’s orders in 2003 and 2005
    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, Hayden and his direct spokesperson, Gigliamo, (sp?) Padilla. FBI for gov (Enis? Ennis? was the agent’s name). Binyam Mohammed and that both of those men had been tortured –

    Padilla was sent from years of blackhole abuse to Florida for the Zuchinni Trials – McNulty (who had been in charge of the Moussaoui case)-James Comey was directly involved in picking up Padilla as a material witness. – FBI agent Dan Coleman who was involved in the Zubaydah interrogation – Goldsmith9/11 commission Abu Ghraib – destruction of evidence that torture WAS US policy and US President/Commander in Chief approved.

    And don’t forget Gonzo.

  31. Mary says:

    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.

  32. Mary says:

    63 – mostly alive. There was an article, I’m pretty sure it was AP but I tried to do a google to find it and can’t, from several months ago, maybe a year or so now even (I’m awful at time)that was from the “well, I guess someone is watching closely to see what all these dangerous terrorists are doing when they are released, aren’t they” approach, and with the “SURPRISE!! No one is paying any attention to them or tracking them” response. It went through how only a very small handful faced charges in their countries, many were outright and joyously released, and IIRC had the Afgah gov in particular, that was still trying to get some of its people released, saying very forthrightly that most of the ones at GITMO were not terrorists but were just poor people who were sold for the bounties. Still, the AP guys (if it was them – I think it was) did do follow up.

  33. emptywheel says:


    I think there’s a simpler reason.

    After the Shelby leak of NSA data, the Administration got really stingy with briefings–of any sort. And they, above board and in conjunction with Congress, seriously curtailed the Gang of Eight briefings. That was reported contemporaneously, so I have no reason to doubt it.

  34. Mary says:

    75 – doesn’t matter. The law was and is – brief the gang of 8 or the full intel committees. If you want to go after someone like Shelby for misuse of classified info, not privileged, do it. But the Nat Sec Act only gives two alternatives, and anyway, why brief the “4″ but not the “8″ if you think members of Congress are just loose cannons? If you are going to violate the Nat Sec Act , why brief anyone? And if you trusted Pelosi to brief her as a member of the 4, why not brief her as a member of the 8?

    It’s not making sense to me – but I’m heading out to do some stall mucking – which isn’t pretty but usually does make sense. *g*

    • phred says:

      EW, I think Mary’s thinking may be running along the right lines here. Reid’s treatment of Dodd’s hold and the Intelligence v. Judiciary versions of the FISA revisions does not make any sense. But what if, in the course of a court case brought against the telco’s, it came out that Reid approved of BushCo’s surveillance? That may be something he would just as soon not have come out. So, he puts forward the Intel version knowing the votes will come down in favor of telco immunity. And poof, no court cases get certified by the AG, and no one is the wiser.

      I’ve mentioned this before, but I’ll mention it again. A friend made a comment in passing to me at a party over the summer, that her sister, working in AGAG’s office, told her that behind closed doors the Dems and Rethugs agreed, but when the cameras were rolling it was a different story. I have wondered since then what specifically they agreed on.

      In any event, it is abundantly clear that Congress is doing BushCo’s bidding and I believe it is because it serves the self-interest of the leadership.

  35. Mary says:

    before I leave, and so I don’t lose it, I came across this with my keywords for my google search for the old GIMTO released detainee story:…..803-02.htm

    I wonder who is on tapes from blacksite detention whose names should have been disclosed as per Kessler’s order in connection with this case? I think she also had an abuse case with some preservation orders, but did the tapes show that names were not released, despite her order, bc they were disappeared to blacksites instead of at GITMO?

    really gone now.

  36. BayStateLibrul says:

    Gonzo can’t catch a break…
    Remember Bushie saying it was all theater?
    OLC bring on the final act..

    “On Friday, Editor and Publisher of the American Bar Association Journal Edward Adams released a statement saying that fallen Bush Attorney General Alberto Gonzales, previously named “Lawyer of the Year,” will now be known as “Newsmaker of the Year.”

    “The Journal regrets that we did not make this theme clear,” clarifying that the Journal article in question meant to highlight Gonzales’ status as a “newsmaker,” and their story on him will remain unchanged otherwise.”

  37. kspena says:

    It seems to me that Mukasey has chosen to be part of the conspiracy and coverup and is obstructing justice. He, too, then can become a target of investigation 1 year, and 1 month from now.

  38. JodiDog says:

    It is one of those “you have to have been there” type statements from the old (and still thriving) TNH.

    Still next time I use it, the Magic Rabbit, over here I will be clearer.

  39. MrWhy says:

    If I understand your government structure correctly, replacing Pelosi as Speaker is difficult practically, whereas replacing Reid as Majority leader is straightforward practically. May not be easy, or practical in reality, but if there were a will within the Senate Democratic caucus, he could easily be replaced. Are there, or have there been, any efforts in that direction?

    • PetePierce says:

      There is no will within any State democratic caucus nor within the Democrats by and large in the Senate (with the exception of Dodd, Feingold, and Kennedy) to do anything but strip the Americans of the Constitution and vote however Bush tells them to vote.