Is This Why Rosenberg Recused?

The AP reveals that prosecutors in the Alexandria US Attorney’s Office–including the lead prosecutor in the Moussaoui case–did know of the torture tapes in early 2006, before Moussaoui was sentenced.

The lead prosecutor in the terror case against Zacarias Moussaoui may have known the CIA destroyed tapes of its interrogations of an al-Qaida suspect more than a year before the government acknowledged it to the court, newly unsealed documents indicate.

The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui’s attorneys to send the case back to a lower federal court to find out whether the tapes should have been disclosed and whether they would have influenced his decision to plead guilty.

In a Dec. 18, 2007, letter to the appeals court’s chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA’s tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.

The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes’ destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible to face the death penalty.

Spencer, who was one of three prosecutors on the government’s team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.

Another prosecutor in Rosenberg’s office in Virginia’s eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.

That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.

It is unclear what that project was. [my emphasis]

Mind you, Spencer was informed about the tapes in early 2006, several months after he represented to Leonie Brinkema that there were no tapes of interrogations. But he would have you believe that he was told this fact just before the hearings on Moussoui’s sentencing, but forgot (I almost feel as if I should add, "as if it were new," from Libby’s dubious claims). When exactly does he suggest he forgot this information that would have been immediately pertinent to the Moussoui case? Immediately? Just before he started ‘fessing up that there were other interrogation tapes they hadn’t disclosed? And we’re to believe it never came up again during this period?

And what was this "special project" by which the other prosecutor learned of the tapes? Was it, perhaps, a response to the CIA IG report?

Spencer’s convenient forgetfulness and the involvement of his prosecutors in this "special project" may well be the reasons Chuck Rosenberg, the USA for ED VA, recused himself from this case. But it sure raises questions why the investigation is still being conducted out of that office.

Mukasey has an oversight hearing before the House Judiciary today. I imagine we’ll be hearing a lot more about this there.

Update: Via How Appealing, here are the documents: 

Moussaoui motion, limited remand

US opposition to motion

Supplemental US letter

Moussaoui response

38 replies
  1. MadDog says:

    I’ve been googling like mad to see if I could find the material that the 4th U.S. Circuit Court of Appeals released about this, but no luck so far.

    If it is here, I can’t get access to the docket:

    No. 06-4494, United States v. Zacarias Moussaoui

    In 06-4494, Zacarias Moussaoui noted an appeal from the district court’s May 4, 2006, judgment of conviction and imposition of a sentence of life imprisonment and from the district court’s May 8, 2006, order denying his motion to withdraw his guilty plea.

    Docket The appellate docket for 06-4494 is updated whenever new activity occurs and contains links to court documents.

  2. selise says:

    on specter’s forgetting, this time i’m not completely comfortable concluding that his forgetfulness was faked – at least not yet.

    to consider in the timeline – didn’t specter have chemotherapy for stage IVB hodgkins through, i think the end of july 2005? how long does chemo brain last?

    • MadDog says:

      I’m guessing by now you have realized that it is US Attorney Spencer and not Senator Spector who has “forgotten” about the tapes.

      Though now that I think of it, Senator Spector probably has forgotten as well. *g*

  3. AZ Matt says:

    I would guess that Spencer was told to shut up about the tapes. AGAG had no problems with torture afterall.

  4. Jeff says:

    So the idea is that Spencer has to simply deny any recollection whatsoever of having learned of the tapes and their destruction, because the moment he acknowledges having been told, his failure to go to the court constitutes, in essence, malfeasance, correct?

    Which brings me to Mazzetti’s article on the latest developments, which highlights the fact that in late November 2005 prosecutors were still producing documents from Abu Zubaydah’s interrogation to Brinkema, which would appear to necessarily mean that in fact the tapes were still at issue in an ongoing legal proceeding at the time of their destruction earlier that month.

    But the larger question Mazzetti’s piece raises is that, since it appears that AZ’s torture was in fact relevant to the Moussaoui proceeding, why did the prosecutors’ letter from last October make no mention of the desroyed tapes and refer only to the still-existent ones? Are they really go to depend on the notion that since the tapes were destroyed, they were all being honest in saying that the CIA had no such tapes in their possession, with regard to the destroyed tapes, and it was only wrt the undestroyed tapes that they were being dishonest back in 2005?

    • bmaz says:

      Quite frankly, William Ockham is absolutely right in his response @5. If I ever did something as malodorous as this in conjunction with any case I have ever tried, I would be disbarred and in jail so fast your head would spin. They will undoubtedly get away with it, but this is absolutely stunning ethical malfeasance.

      Going back to something MadDog raised at the bottom of the last thread, in relation to the Administration claim that a full quarter of their HumInt, human intelligence, was obtained through the subjects they tortured. Assuming arguendo (Latin legalese meaning “for the sake of argument”) that the figure of 25% is true, the salient question is what percentage of that was obtained through standard interrogation and what percentage through impermissible physically coercive techniques? The corollary question is what percentage of false, bad, information resulted from the torture. If you recall some of the previous reporting, there seems to be some basis that, at least as to Zubayduh, he talked before they tortured him. Bottom line: to what extent did they get the usable information through acceptable techniques and then torture these (and undoubtedly many other) subjects trying to extract even more. I am willing to bet that most of what they got from the torture was unusable, or false, and that anything useful they got was obtained under standard techniques.

      • TheraP says:

        And don’t forget that there is always the possibility that they “showed videos of torture” to others… and that was enough to convince them to talk. Which would up your percentage even more.

      • rapt says:


        This is just the issue, or the point, at which you should aim your digging. As a lawyer you know very well that such behavior indicates a very powerful, even deadly influence coming from somewhere. It isn’t simply evil ideology although that may be where it originates. The influence is broad and strong, enforced by I would imagine some nasty threats & blackmail. Enforced on a large and diverse group (not all lawyers of course).

        Question for you bmaz, is how and why is this done. It has been going on for quite a few years now and so far I hear “incompetence!” or “bush family!” or other similarly irrelevant exclamations. For what cause do these corrupt bosses work? Greed is the answer I get most often but it doesn’t fit.

        I direct this question at you bmaz only because you are the one pointing out the bad odor today. And I might add that your second paragraph, on the 25% of humint, is just the kind of niggling detail that frustrates me when I read EW & comments. Sure its a good legal point blah blah blah, but all these details I take as a GIVEN; we see them every day. Face it, you’re not going to impeach or convict based on any of it. If one doesn’t seek and eventually find the basis of the power behind this puppet regime and the stream of crimes it commits with impunity, then seek and find the inevitable weaknesses, and then exploit them, them you and we will ALWAYS be the victim.

        It is becoming more evident all the time that “rule of law” isn’t the final answer here; it goes way deeper than that. Perhaps this is why lawyers and legislators have such a hard time cutting through the bullshit fog on this particular case.

        • bmaz says:

          It is not just greed for financial gain, although there is certainly that, it greed for raw power as well. I have seen your comments before on the insufficiency of what we do here; and take strong issue with them. It is easy to sit back and carp, but I fail to see that you are particularly doing anything more valuable. And if you advocate addressing our ills outside of the rule of law and the Constitution (impeachment); then you are proposing action just as, if indeed not more, violative of what this country is supposed to stand for than the Bushies.

          • rapt says:

            I reread #28 to see where I had been offensive and yes the comment sounds like an insult to you and to lawyers in general. I apologise for that; it certainly wasn’t my intent. For the record, this is my favorite blog and I learn more here than anywhere, so earnest kudos to you and Marcy and Mary and all the other smart folks here.

            I will stick with my claim that something more serious than lawbreaking and corruption is going on out there; you are right, I do no more than comment about it occasionally and join up with protest gatherings in DC. It would be nice to do more if there were legal and effective alternatives; I agree to disagree with you on that point. EW is the wrong forum to dig in that direction (outside the established structure) and I promise to keep my suspicious opinions about that to myself in the future if you will refrain from comparing me to bushco.


  5. AZ Matt says:

    From the NYT’s: C.I.A. Destroyed Tapes as Judge Sought Interrogation Data

    In that letter, prosecutors acknowledged that two declarations filed in the case by C.I.A. officials were inaccurate. The C.I.A. officials had denied the existence of video or audiotapes of interviews of certain Qaeda suspects, but the letter said the C.I.A. in fact had two videotapes and one audiotape of interrogations.

    Bunch of liars they are.

  6. klynn says:

    “Good” news comes in threes…(emphasis on news)

    1)Admission of waterboarding three detainees

    Same week…

    2)Admission of knowledge of torture tapes before ZM’s sentencing

    Same week…

    3)We do warrantless wiretap citizens and will continue to…

    And we have not made it to Friday of “that” week. Today should start round two of “news in threes”…hmmm…

    Forgot and then remembered…oops meme…What “forgot-remembered-oops” is next?

    When I read this headline last night(shaking my head in disgust), I wondered, “What will EW write about THIS? Again, great work EW! Thanks.

    Feingold’s been my highlight of the week… Maybe this is a lottery week?

  7. TheraP says:

    Information that “shocks the conscience” is not something that one forgets.

    If one ‘forgets’ it, I guess you’d have to conclude they lack a conscience

    (not a scientific study, mind you. but that’s the way our brain works!)

  8. AZ Matt says:

    Sorry I won’t be here when EW blogs the HJC/Mukasey, got to run to town, so give him Hell in the Blogs!! Don’t be shy about it ya hear!!

    • TheraP says:

      The mere fact that so many are “watching” has got to now be getting through to those doing the testifying, asking the questions, giving speeches.

      Little by little the netroots will make a huge difference here. And credit goes to so many. FDL. EW. TPM. Kos. GG. Too many to name. I applaud across the miles.

  9. klynn says:

    ”Another prosecutor in Rosenberg’s office in Virginia’s eastern district who was not involved in the case ”recalls telling (Spencer) on one occasion,” the letter said.”

    ”Another prosecuter” would be who? And, how did he know about the tapes?

    bmaz, what is the legal liability regarding the two unnamed and the recused? Knowing the case went forward with unmentioned (forgotten)destroyed evidence?

    • bmaz says:

      Well, normally, it would be quite substantial. Obviously, it would depend entirely on how the full facts fleshed out; but potentials include contempt, criminal contempt, false statements, Perjury (if sworn pleadings or submissions were made), obstruction of justice and, of course, action by any bar entities you were licensed by. Now, of course, wearing my more natural defense hat, there are a lot of affirmative defenses that could be fashioned for such individuals on such charges; such as necessity, justification, duress (that would be kind of weak), and, of course, legality under the President’s orders.

      • masaccio says:

        bmaz, you forget disciplinary proceedings, where the standards of proof are theoretically lower. The threat of losing one’s license for lying to the court is real in some outlying states, like yours and mine.

  10. klynn says:


    Additionally, everything is in the context of ”telling”. Where does that put all of this legally? Is not ”telling” different from ”documented”.

    Are we being set-up here?

    • bmaz says:

      Yes, we are absolutely being set up here; that is why they are starting to affirmatively dribble this crap out. This is their first act in trying to establish legality for their illegal actions after the fact. It is a clear pattern evolving; they are trying furiously to clean up all of their ills before they leave office because they are terrified of criminal prosecution for their, you know, crimes.

      • klynn says:

        Thanks for the detail.

        I’m still concerned about the “telling” language versus any written documentation. And having this come from a US AG’s office, where one would expect vital information to be in some written format unless…there’s a plan…

        I’m still reeling from the “we don’t do systematic torture” comments from yesterday.

        If there are no written documents on the destruction of the tapes, systematic is definitely on the table…

  11. Sedgequill says:

    I don’t know anything about the mechanism for moving a case at whatever stage from one prosecutor’s office to another’s, but that needs to be done more than it is when there’s even a credible appearance of misconduct.

    • bmaz says:

      But where do you move it to if the leadership of the entire set of offices is complicit in the crime? This is what is wrong with all of this; there is no provision for a truly independent counsel in the law anymore, and while a special prosecutor, if he were truly ethical (which we would not see happen again) is better, it still doesn’t fully remove the appearance of impropriety if they are tethered to the DOJ.

      DeadLast @22 – Of course. See my comment @21

      KLynn @26 – You can take it to the bank that it was a premeditated systematic action. It may be a limited “system” because of secrecy and compartmentalization, but knowing and systematic nevertheless.

  12. kspena says:

    OT-ME communication. A hmmmmm factor.

    Gunmen set eight communication towers ablaze in Mosul

    Ninewa – Voices of Iraq
    Thursday , 07 /02 /2008 Time 5:38:25

    Mosul, Feb 7, (VOI)- Unidentified gunmen set eight communication towers ablaze in the city of Mosul, a police source said on Thursday.

    “Unknown gunmen set fire to six communication towers in al-Ghufran, Karama, Mithaq, al-Nour, al-Qadissiya al-Thaniya neighborhoods in eastern Mosul and al-Sedeeq neighborhood in the northern section of the city,” the source told Aswat al-Iraq – Voices of Iraq – (VOI).

    “They burned also two more towers in 17 Tamouz and Senaat Wadi Ekab regions in western Mosul, he added.

    “The burnt towers belong to AsiaCell, Fanous, Iraqna mobile companies,” the source explained, adding no further details.
    Mosul, the capital of Ninewa, is 405 km north of Baghdad.

  13. Mary says:

    The question of why Rosenberg recused is basically easy and doesn’t need lots of digging. As USA for EDVA, he’s been signing off on Moussaoui pleadings since McNulty left (was that Oct of 05?) How much he was actively v. constructively involved in the case may be at issue, but there’s no way the head of an office who has participated in the case where the office’s conduct is being examined can legitmately head that investigation. So there doesn’t really need to be any “other” or “more” than we knew as soon as we knew Brinkema had been on the hunt.

    Mores interesting to me – what did McNulty know about the torture tapes and when. Even after he left he EDVA slot, if he found out via his position as DAG (or if he knew from another ‘project’ his office was working on) about the torture – even without the concomittant knowledge of the torture tapes – he had some duties to the court. Once you’ve made reps to the court, your duties are ongoing. If I were Brinkema, I’d be interested in having a discussion with Mr. McNulty.

    BTW – if you dig through at Balkinization, there’s a link to a podcast of a luncheon speech Brinkema gave at a seminar on trying to start up a gulag of secret courts into which people can be disappeared “legally” It’s pretty interesting stuff on how the Moussaoui caee’s “classified” info seemed to get leaked (without any investigations for violations of classification rules) whenever there was something good that gov wanted to hit the press to make them look better – things that made them look bad, not so much. Therein being the problem, in part, with letting prosecutors pick and choose what journos they go after, as it becomes not only economincally, socially and politically expedient to print party line propaganda only, but even in your best liberty and criminal liability interests as well.

    Another interesting component is that much of what the DOJ is facing in the Moussaoui case now ties back, directly, to the Bush/Ashcroft/Gonzales decision to really blow out the boundaries on death penalty and seek the dp against Moussaoui on some very bizarre legal theories. But for a jury that scattered off in lots of different directions for different reasons, we could have some very bad and frightening law from that case. In any event, all the access to prisoner info and interrogation info pretty much ties, not to the underlying case that was sending him to jail for life, but to the dogged press to create a way to get the death penalty on the case.

    On the Moussaoui case – and Judge Roberts’ case as well – I think a little reference to due diligence and constructive v. actual notice would probably be helpful.

    When your client is the whole of the US government – as it is in a “United States v. …” case, particularly a criminal case filed by a USAtty’s office, you do not get to file discovery responses based solely on your own personal knowledge as a lawyer when the court directs you to turn over all XYZ that THE GOVERNMENT (your client) has. At that point, you actually have a charge to go out and FIND what is requested from YOUR CLIENT. That means that you contact all the appropriate heads of agencies, or supervisors, or field agents as reasonable and prudent. It means you circulate memos regarding what is being sought and requesting responses. It means you dig. It also means that anyone in “your firm” i.e., DOJ, that knows a court has a request out for information and knows that information exists has a duty to tell you about it so you can get it to the court – and if you don’t, they have an independent duty themselves to the court, with respect to the information being provided to the court.

    This is why discovery is time consuming, costly, voluminous, tedious, etc. It is not a matter of saying to one person – here perhaps Spencer – “hey, why don’t you make a list for me of what you know about interrogations done of Zubaydah and KSM and Padilla and …” and we’ll just go with what you jot down.

    Instead, it involves the attorney sitting down with representatives of his clients agencies that might have relevant information, getting their general counsel’s offices involved as necessary, and finding out from the client what the hell has been going on and what exists. It’s called due diligence and its a requirement. You go and look. And from the very beginning of the time when you know that litigation is touching an area of information, you contact everyone involved with that information and make sure they know they are not allowed to destroy anything.

    So in not just the Moussaoui case, but multiple other cases, from Padilla’s lawyers objections to the sourcing of arrest warrant info, to the allegations of GITMO detainees about either exculpatory info or the fact that inculpatory info might be based on coercion and torture, or the Moussaoui death penalty case based on a similar grounds, – there were a plethora of cases where a plethora of DOJ attorneys should have been going up and down chain, intra-agency and inter-agency, making requests for production and preservations. All kinds of people in ED VA and DC Cir, in the Crim Div at Main Justice, at the CIA, at the FBI, in counterterrorism and upper adminsitrative positions, at the DAG and AG levels —- at the Solic. Gen’s office once assertions were going to be made to the Sup Ct about lack of torture or things like torture —- all kinds of lawyers and FBI investigators and CIA agents and tech/data specialists and clerks, probably even a fair amount of Pentagon and JAG people, should have all had lots of notice as to production and preservation.

    For that matter, any DOJ lawyer who picked up a newspaper and, with acutal knowledge of torture or torture evidence or coercion or interrogation taint, reads that a judge is demanding production – they are on notice of a duty to the court to preserve and ultimately – if their colleagues will not, to produce.

    And face it – clients never want to turn over the bad stuff. This isn’t some completely new problem. A 3L knows that once they hit the real world, clients in litigation will want to hide and destroy incriminating or embarassing evidence. And they know what their duty is. They can fight like hell through lots of mechanisms to keep things out and not produce – especially if they have some of the tools of Gov attys at their fingertips. But they can’t just hide and destroy.

    Except, of course, now we know that IF you go to work for the US Dept of Justice, you can. You can hide and destroy evidence in direct defiance of court orders and nothing will happen. Because if you work for the US Dept of Justice, you aren’t really a lawyer anymore. You’re an executive branch goon, with a get out of jail free card in your pocket.

    In any event, if a little bit of reasonable and prudent due diligence – actual looking – would have shown the Gov lawyer that info requested by the other party existed, but the Gov lawyer decided to just not look and not conduct any due diligence, there are things that the lawyer will be deemed to have constructive knowledge of (because anyone making any moderately reasonable effort would have found this info), even if they did not have actual knowledge (because they never looked).

    It will be interesting to see what happens, but I pretty much expect nothing much, except possibly from Judge Roberts, who doesn’t really seem to care for the concept of having goons instead of lawyers trying cases in his courtroom. But while the focus may be on just Spencer and just the Moussaoui case, the real scandal (isn’t that a tired, used up word these days?) is how many lawyers in how many cases knew about torture and coercion and evidence of torture and coercion and knew about the DOJ’s duties to many different judges in many different cases — and all sat quiet.

    It’s sobering and horrible.

  14. Mary says:

    27 But where do you move it to if the leadership of the entire set of offices is complicit in the crime?

    And there goes bmaz, condensing my ramble into a sentence. A pretty short sentence.

  15. Hugh says:

    I would love to say that I am surprised by this, but I’m not. I have a lot of problems with how Brinkema ran both halves of the Moussaoui trial, but the prosecution was way beyond inept. They never made their original case and they were only saved by the nutty Moussaoui obligingly pleading guilty for them. In the penalty phase, similarly their argument was blown apart after it came to light that a government attorney at one of the agencies had been coaching witnesses. So knowing about the torture tapes and lying about them, with these clowns it would have been more surprising if they hadn’t.

  16. masaccio says:

    bmaz, I see you mentioned disbarment in an earlier comment. And now that I think of it, that is the perfect mechanism for getting rid of Bush maggots. The new team will just look through the files of all the lawyers, and report them to the proper disciplinary board. Poof, gone.

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