CIA Refuses to Turn Over Torture Tape Library

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The CIA has been making an inventory of its torture tape library. It is supposed to hand over an inventory of the library for the judge to review next Thursday, March 26, including:

  • A list of any summaries or transcripts describing the destroyed records’ content.
  • A list of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Only, the CIA says the ACLU can’t have any of these lists. 

Here’s the letter DOJ gave Judge Hellerstein explaining the CIA’s reasons why ACLU can’t have the torture library.

The CIA has generated the lists contemplated by Points 2 and 3 of the Order. As instructed by the Court, the CIA will provide the unredacted lists for the Court’s ex parte, in camera review on March 26, 2009 at 2:30 p.m.  There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

In spite of the fact they’ve given us a hugely redacted copy of the CIA OIG report on torture and a torture tape inventory itself, they claim they can’t reveal any of the 3,000 documents discussing the torture tapes. None of them. We’ll see whether Judge Hellerstein agrees with them…

What I’m most fascinated by, though, is the explanation that CIA can’t turn over the list of those who watched or retained the torture tapes because the list "is either classified or otherwise protected by statute." That suggests they’re invoking FOIA exemptions other than classification to withhold the identities of people who watched those tapes.

Take a look at this list of FOIA exemptions, and you’ll see why that may be rather interesting. For example, trade secrets might protect the identities of contractors who had viewed or retained the torture tapes. There’s the physical safety exemption that they earlier cited in regards to their destruction of the tapes–but if they invoked this exemption, it might reveal that they’re worried about the identities of non-CIA employees being released. There are law enforcement exemptions they might invoke if DOJ had reviewed these torture tapes in 2004 in response to a criminal referral by CIA’s Inspector General.

Or the truly interesting possibility–that CIA might claim some identities are exempt from FOIA because they are presidential records more generally exempt from FOIA, which would come into play if someone at the White House had watched the torture tapes. 

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91 replies
  1. Ishmael says:

    From Michael Beschloss, The Conquerors, describing Hitler watching the executions of the Valkyrie plotters……

    “… A motion picture of their execution was rushed to the Wolf’s Lair for the Führer’s enjoyment. By one account, Hitler and his chief propagandist, Joseph Goebbels, watched in the Führer’s private theater as the shirtless men on the screen swung from piano-wire nooses, writhing and dying while their carefully unbelted trousers fell off to reveal them naked.”

    Godwin’s law does not apply in this case.

  3. acquarius74 says:

    We owe a lot to ACLU for knowing what we do about the detainee torture program. They won’t give up, but congress is derelict in their duty by not demanding full records and witness testimony from the CIA, the private torture contractors, and all high government officials who authorized this shameful program.

  4. Peterr says:

    Or the truly interesting possibility–that CIA might claim some identities are exempt from FOIA because they are presidential records more generally exempt from FOIA, which would come into play if someone at the White House had watched the torture tapes.

    The likelihood of this possibility is not “highly likely” or “approaches 100%” but is exactly 100%.

    The question is “who?”

    My fab five on the torture team: Dubya, Cheney, Addington, Gonzales, Card, and Rice. Coming off the bench as the sixth man on this team: Rove.

  6. Hmmm says:

    There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time.

    Probably nothing, but that strikes me as an odd, hedging construction. Why would the set of information “that can be produced” vary over time? (Or, in the alternative if you prefer to parse the sentence the other way instead, why would the set of documents containing the info “that can be produced” vary over time?) Could there be more available at a certain time or times in the future? Have more been available at a certain time or times in the past? Could some temporary classification currently be in effect that prevents the disclosure to ACLU?

      • Hmmm says:

        That would be very satisfying, but may I humbly suggest we begin by simply ensuring via new law that they can NEVER, EVER BE USED in any election, anywhere, for evermore?

        • bobschacht says:

          No, I don’t think that electronic machines should be banned forever. *Diebold* machines, maybe. The problem with Diebold machines is
          1. They use proprietary software, so that only Diebold technicians can tell if they’ve been hacked or not.
          2. Nevertheless, their machines can be hacked– by intruders, or company technicians.
          3. Most Diebold machines do not produce a paper track, so their votes can’t be recounted.

          It is not necessary for electronic machines to have these features. Well-designed electronic vote-counting machines can be designed and made.

          Bob in HI

          • newtonusr says:

            Well-designed electronic vote-counting machines can be designed and made.

            And it’s up to states to certify such things, and we know how that would have worked in Ohio (and Dog knows where else) had Blackwell not been exposed.

            Even electronic paper trails are subject to fraud.

            Some things are best done the old fashioned way, and well worth the expense. Pen to paper.

            • PJEvans says:

              There are ATMs out there that scan checks – no envelope – and produce a receipt with a readable scanned image of the check printed on it.
              It ought to be possible to make an electronic voting machine that can produce paper prints for both the voters and the officials. Count the official paper copy, not the bits in the machine, if need be.

              • Gitcheegumee says:

                It strains credulity to beyond the breaking point that one cannot make ANY retail purchase,even as small as a pack of chewing gum, without a paper receipt being generated;yet, we cannot obtain an official receipt of our vote?

                Are our votes truly LESS important than a pack of chewing gum?

                • PJEvans says:

                  Well, you don’t have to get a receipt out of an ATM – that’s done by request.

                  But voting machines damned well ought to produce an accurate, usable, paper trail so that, for example, ballots can be recounted. And any state that won’t use paper ballots for a recount gets told that they’re disenfranchising voters.

                  • Hmmm says:

                    The new Congress badly needs to repeal the sham that is HAVA in light of the huge number of truly shocking electronic voting debacles that have befallen us since that time, and take a fresh run at the problem. A pen-and-paper-based run. Get Ed Felten and like-minded serious analysts on board.

              • quake says:

                The problem is that if the voter has a printed receipt anyone (like his boss, for example) can demand that he show it (this would be illegal of course…..). Thus the only practical solution that maintains a secret ballot is writing the votes on a piece of paper and putting it into a ballot box. Of course this can be a marksheet (like the SAT test), as it can be machine counted with random sampling manual recounts (and the possible of a full recount if needed).

          • Lindy says:

            We could stand to take a close look at Germany’s High Court ruling on electronic voting machines. Via Brad Blog:

            ..Germany’s highest court has ruled that the use of electronic voting in the last general election was unconstitutional.

            September’s upcoming elections looks set to see a return to the more traditional pencil and paper countrywide.

            Constitutional judge Andreas Vosskuhle said that the judgment did not rule out digital voting for once and for all, but added that the equipment used four years ago did have shortcomings.
            …

            The use of electronic voting was challenged by a father-and-son team. Political scientist Joachim Wiesner and son, physicist Ulrich Wiesner complained that push button voting was not transparent because the voter could not see what actually happened to his vote inside the computer and was required to place “blind faith” in the technology.

            In addition, the two plaintiffs argued that the results were open to manipulation.

          • Hmmm says:

            2. Nevertheless, their machines can be hacked– by intruders, or company technicians.

            Oh, it’s way worse than that. The folks arrested in Kentucky were actual local election officials including a Country Judge, not Diebold techs. This case points up that there are fundamental trust issues implicated by all electronic voting systems, and to a lesser extent by all electronic tabulation systems. As a result, even if open-sourcing and peer-reviewing the software before the next election were a practical option, it wouldn’t necessarily constitute a comprehensive fix because any machine (or software) could still be undetectably misused to steal votes, just so long as enough of the people operating the system and controlling its environment were crooked. (This is a different kind of attack from what Mike Connell is alleged to have done in Ohio, intercepting electronically transmitted tabulated voting results and altering them en route before they were reported by the state.)

            Dependence on voting and/or tabulation machines always facilitates human attacks on an election, and any technical countermeasure to try to thwart such attacks can always be overcome by turning the right combination of people. That’s one reason why hoping for a perfect electronic voting system is in many ways like the DRM arms race in digital recorded music: a fool’s quest.

  8. bobschacht says:

    So, let me get this straight. The CIA has (already?) provided the lists, etc. to the Judge for ex parte, in camera review on March 26, but is saying that it won’t provide any such lists to the ACLU?

    Does this mean that the Judge’s ruling cannot be expected until after March 26?
    Can the judge make his own judgment (heh) about what, if any, of the information can be released to the ACLU?

    Bob in HI

  9. Sara says:

    As to who may have seen the torture tapes — I would add Ashcroft to the list. He is the one who apparently complained about “discussing such things in the White House” in a summer, 2002 meeting in the Situation Room.

    I wonder if they served Popcorn with their Flicks?

  10. plunger says:

    I’m sure the list of those in the White House who sat around viewing the torture tapes while masturbating includes Rove, Matlin and the rest of the team from the http://en.wikipedia.org/wiki/W…..Iraq_Group">White House Iraq Group, plus for their Zionist co-conspirators at the Office Of Special Plans like Wurmser, Feith, Libby, Wolfowitz, Zakheim, Pearle, Kissinger, (and of course the traitorous Larry Franklin) etc., and surely the offices of PNAC held nightly screenings hosted by Joe Lieberman and Bill Cristol – while AIPAC and ADL ensured distribution of the home DVD version to the true seat of power (thanks to their blackmail of the 9/11 co-conspirators), their overlords in Israel.

    When you encourage rhetoric that reduces an entire race of humanity to sub-human status, shit like this is the inevitable result.

    “The Palestinians are like crocodiles, the more you give them meat, they want more”…. Ehud Barak, Prime Minister of Israel at the time – August 28, 2000. Reported in the Jerusalem Post August 30, 2000

    “[The Palestinians are] beasts walking on two legs.” Menahim Begin, speech to the Knesset, quoted in Amnon Kapeliouk, “Begin and the Beasts”. New Statesman, 25 June 1982.

    “The Palestinians” would be crushed like grasshoppers … heads smashed against the boulders and walls.” Isreali Prime Minister (at the time) in a speech to Jewish settlers New York Times April 1, 1988

    “When we have settled the land, all the Arabs will be able to do about it will be to scurry around like drugged cockroaches in a bottle.” Raphael Eitan, Chief of Staff of the Israeli Defence Forces, New York Times, 14 April 1983.

    “We have to kill all the Palestinians unless they are resigned to live here as slaves.” Chairman Heilbrun of the Committee for the Re-election of General Shlomo Lahat, the mayor of Tel Aviv, October 1983.

    “One million Arabs are not worth a Jewish fingernail.”     — Rabbi Yaacov Perrin, Feb. 27, 1994 [Source: N.Y. Times, Feb. 28, 1994, p. 1]

    AND LESS THAN ONE MONTH AFTER 9/11 – THIS:

    “Every time we do something you tell me America will do this and will do that . . . I want to tell you something very clear: Don’t worry about American pressure on Israel. We, the Jewish people, control America, and the Americans know it.” – Israeli Prime Minister, Ariel Sharon, October 3, 2001, to Shimon Peres, as reported on Kol Yisrael radio.

    Certainly the FBI’s cover-up of the Israeli spy ring/phone tap scandal and the “Dancing Israelis,” caught red-handed on 9/11, suggests that Mr. Sharon was not joking. When sadistic racists overthrew the US Government, torture, mayhem, displacement and the death of Arab peoples was the inevitable result – all to facilitate the creation of Eretz Israel,” and you paid for it.

  11. JamesJoyce says:

    CIA refuses to release tapes?? Sound like something the SS would do? Violations of constitutional law and self serving fucking scumbags protecting their loser ass from prosecution using the facade of law, advancing an agenda just like fucking Nazis.

    There are many Americans dutiful and loyal to the constitution whose reputations suffer now as a result of the illegal action of institutional criminals.

    The people of America who have no clue what has been done in our name inconsistent with every value, that so many Americans died protecting. Yet the limp dicked press fails to follow the important stories.

    Whether one views the War in Iraq, or the Bailout for AIG, one common thread runs through both…….. Lies, Misrepresentations, a failure for full disclosure of facts and a complicit press aiding in the “brainwashing” of America.

    Just a question for the able readers here, How much is AIG paying out to destroyed property in Iraq in Insurance claims? I realize war is an exception, not to pay! However, is this bailout another underhanded way to shift the cost reconstruction of Iraq to the American people, who will later buy Iraq Oil via corporations here in America? America’s rape, by corporate aristocrats continues, as forewarned by Jefferson. Yet so many of the “American people” fail to listen being, Deaf Dumb and Blind! Conditioned brainwashed minds………

    • Leen says:

      they seem to have learned a great deal from the ss

      So the tapes have allegedly been destroyed, can’t see the list of who viewed, those who possibly did the torturing, the contractors who were involved etc etc.

      Why in the hell do they (OBAMA, HOLDER, LEAHY, WHITEHOUSE, FEINGOLD ETC) keep repeating NO ONE IS ABOVE THE LAW? It is oh so obvious that there are plenty of people ABOVE THE LAW.

      What would happen to peasants who destroyed such critical evidence? Bingo any peasants ass would all ready be in prison.

      NO ONE IS ABOVE THE LAW (cough)

  12. plunger says:

    In May of 2006, Cheney appeared on Larry King. He stepped in it big time, but few people caught it. I alerted Rude Pundit and he wrote about it.

    an excerpt:

    Then Cheney made this statement: “In a sense, when you’re at war, you keep prisoners of war until the war is over with.” So, like, if, in a sense, the Gitmo campers are “prisoners of war,” then, in a sense, don’t they get Geneva Conventions protections?

    Cheney and Gonzales have been playing a semantics game to justify torture, since “war” was never formally declared. It’s pretty obvious why they chose to embark upon the path of war without ever formally declaring it – so they could not be held accountable for the War Crimes they knew they’d be committing.

    Bush told us every day that we were at war. Cheney and Gonzales told us that we were not REALLY at war.

    Problem is, Cheney is on tape stating not only that we are at war, but that we are holding “prisoners of war.”

    The Geneva Conventions DO APPLY, and Cheney is guilty of war Crimes.

    http://transcripts.cnn.com/TRA…..kl.01.html

    KING: They specifically said, though, it was Guantanamo. They compared it to a gulag.

    D. CHENEY: Not true. Guantanamo’s been operated, I think, in a very sane and sound fashion by the U.S. military. Remember who’s down there. These are people that were picked up off the battlefield in Afghanistan and other places in the global war on terror. These are individuals who have been actively involved as the enemy, if you will, trying to kill Americans. That we need to have a place where we can keep them. In a sense, when you’re at war, you keep prisoners of war until the war is over with.”

    So this is the war without end, and these prisoners will be held forever?

    http://www.newyorker.com/fact/…..0227fafact

    New Yorker

    From the article:

    Yoo believed that the President’s role as Commander-in-Chief gave him virtually unlimited authority to decide whether America should respond militarily to a terror attack, and, if so, what kind of force to use. “Those decisions, under our Constitution, are for the President alone to make,” he wrote in a law article.

    A top Administration official told me that Yoo, Addington, and a few other lawyers had essentially “hijacked policy” after September 11th. “They thought, Now we can put our views into practice. We have the ability to write them into binding law. It was just shocking. These memos were presented as faits accomplis.”

    In Yoo’s opinion, he wrote that at Guantánamo cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.

    “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority,”

    So this same approach was used across the board. Addington effectively sought to obtain “legal opinions” which were in fact illegal, with the specific intent to provide Bush and Cheney with sufficient legal cover to behave as Dictators and Kings, as there were virtually no laws that applied to them, as determined by edict.

    This is where we stand today. There is not one single law that applies to Bush or Cheney. They have found lawyers who were willing to craft opinions stating that they were above the law, and in so doing, have subverted the Constitution of the United States.

    This activity was intentional, willful and treasonous. They were sworn to uphold the constitution.

    Given this information, others in a position to do something about it (who also swore under oath to protect the Constitution against all enemies Foreign and DOMESTIC) now have an obligation to fulfill.

    Time to choose sides, Mr. Obama.

  13. wavpeac says:

    Most sociopaths and anti socials do not choose to go to therapy. So I guess there is a factor of self selection in my client population. But honest to god, this makes me sick. I have a hard time accepting that so many depraved individuals exist. I know how naive that sounds. But there is not one part of me that understands this attraction to torture on an emotional level.

    I get it intellectually. I can guess to lots of different influences as to why. And my theory about Germany really has to do with that black and white dichotomous thinking. I swear it is related to alcohol/drug abuse, brain damage neglect. It’s emotional thinking…and somehow these depraved folks play out their invalidated pain to see it on the faces of those they torture. They project every judgment about being human and tell themselves these folks deserve it.

    I just think that if we humans do not soon, learn what to do about this mechanism in humans we cannot survive. It’s contagious, we are often blind to it, and it is so destructive. It allows us to kill in masses. We humans have a mechanism that allows us to kill and torture.

    But not all of us. For those of us, who do not share that mechanism, and are disgusted by it…there is a dilemma. What do you do with those who have it? The anger in me says revenge, but that takes me to same disgusting place. No, that’s not the answer. Jail, yes. court rooms, yes. truth seeking yes.

    I guess the only answer is to open my eyes…but it really makes me sick to see it.

    I can’t even read about this stuff…tears now. I felt the same way about the hitler’s germany, about war. It makes me sick to think of humans doing this to each other for pleasure. Something in me is drawn to understand it, and yet it disgusts me.

  14. Leen says:

    so who wrote those FOIA exemptions? Have those always been around or was this list something Addington or Yoo came up with?

  15. Leen says:

    the physical exemption.

    message…we can torture anyone we want and never have our names released and NEVER EVER BE HELD ACCOUNTABLE. diabolical

    These thugs seem to dance with the devil

  16. Mary says:

    17 – Can the judge make his own judgment (heh) about what, if any, of the information can be released to the ACLU?

    That’s going to be the issue and the United States Department of Justice has made it very clear that our law enforcement, our prosecutors, put Presidential whim above law – they are happily collecting checks for telling the courts that evidence of Executive branch crimes is “classified.” Especially in this setting where the crimes were committed against non-US citizen and not on US soil (although in al-Marri and Padilla and other cases they’ve been happy to argue the same theory re: crimes committed on US soil against US citizens)

    They are telling the court that there is no depravity the President can’t cover up on whim. And a court that disagrees has no hammer.

    That was what Judge Keith dealt with when there were similar assertions in the White Panther case (not all that similar, even Mitchell and Nixon would have blanched a little at telling a court their torture information was secret) and it comes down to a game of chicken.

    • Leen says:

      hey can the ACLU bring in J William Leonard (the former director of the government’s Information Security Office) to argue the classification of the torture info is over classified? You know the same expert who will be testifying that Rosen and Weissman were just doing what everyone in D.C. does.(knowingly handing over classified intelligence to other countries officials)

      http://www.washingtonpost.com/…..02130.html
      The immediate purpose of Ellis’s opinion was to settle whether to permit expert testimony on behalf of the defendants by J. William Leonard, a retired Defense Department senior security official. Leonard, who retired last year, had been director of the government’s Information Security Office responsible for oversight of the entire U.S. classification system.

      Bush administration lawyers tried to block Leonard’s appearance by arguing that he had participated “substantially” in the case. They contended that he was barred by law from testifying because he had met with a number of the Rosen-Weissman prosecutors in March 2006. Ellis, however, noted that the meeting lasted only one hour, during which they discussed the classification process generally and Leonard “shared his own general view regarding the government’s over-classification of information.”

  17. Mary says:

    I took a quick look a the letter and surely DOJ isn’t telling the Judge that they can just make the blanket assertion on all items that they are “classified or otherwise protected by statute” without making per item, specific claims of exemption?

    Even if the courts are going to substantively roll over and die, they could at least have the decency to make the lawyers follow procedural requirements.

    • BoxTurtle says:

      That looks like exactly what they’re doing. And I’ll bet, if pushed, they’ll say that the reason for classification is itself classified.

      They certainly seem to manage to get different judges than the kind I’ve met. Most judges get really upset when someone tries to game them. These judges must be paid by the hour.

      Boxturtle (Your honor, the evidence is classified but the defendant IS guilty)

      • Leen says:

        Box Turtle you must be running into the same Judges that Christy Hardin Smith has run into during her law career. The ones who do not like being “gamed”

        • BoxTurtle says:

          I wasn’t aware there was any other type. These judges the Government gets confuse me. IMO the Government lawyers have clearly crossed the line repeatedly, yet no sanctions are forthcoming. It amazes me that Judge Walker has not gaveled them into pulp, for instance.

          Boxturtle (He must have raised a large number of badly behaved children himself to be so tolerant)

          • macaquerman says:

            Gavel-pulping, while long popular, has sometimes been held to be inconsistent with the Constitution.

            (where still applicable)

            • BoxTurtle says:

              Huh? Gavelpulping doesn’t violate the 2nd amendment and all the others are optional.

              Boxturtle (Have I lived under republican rule too long?)

            • bmaz says:

              The Plame civil suit was lost because it was poorly pled and because sovereign and qualified immunity is an affirmative defense that is extremely difficult to overcome in any case against the federal government. Legally, Bates’ decision in Plame was extremely predictable; in fact, it was exactly what I predicted at TNH as soon as I completed reading the complaint after it was filed. It really had nothing in the least to do with “being gamed”.

  18. pdaly says:

    I remember during the Libby trial learning that ‘cable’ in CIA parlance meant ‘email’. Not sure if ‘cable’ is specific only for email crossing countries or if it can also refer to email sent from one worker to a nearby worker in the same building or same country.

    If ‘cable’ is merely CIA email, then this list below, which includes cables and emails implies communication from non CIA types.

    roughly 3,000 documents, including cables, memoranda, notes and emails

  19. bmaz says:

    That’s going to be the issue and the United States Department of Justice has made it very clear that our law enforcement, our prosecutors, put Presidential whim above law – they are happily collecting checks for telling the courts that evidence of Executive branch crimes is “classified.” Especially in this setting where the crimes were committed against non-US citizen and not on US soil (although in al-Marri and Padilla and other cases they’ve been happy to argue the same theory re: crimes committed on US soil against US citizens)

    Is this where we will really see that argument pled and a dogfight on it?? Because it is time that ground is fought on. Seriously. Especially after Obama’s big alleged whoop de doo about his new executive orders etc.

  21. BoxTurtle says:

    OT: The Fed took last Friday off because they had three to close yesterday.

    Boxturtle (Looks like some of the hefty depositers actually lost money on one)

  22. Mary says:

    35 -maybe. I think they might more directly cite the AG’s testimony on waterboarding (and cases) and tell the court that since Executive order prohibits classification of info on criminal act AND since that order is merely consistent with common law requirements in any event AND since there is no Constitutional grant to the Executive of rights to engage in crimes AND since the courts are the appropriate venue in gov to determine whether or not something is evidence of crime – that the President’s “preliminary” determinations of classification and unavailability due to “other statutes” falls before a court’s determination that the info is evidence of crimes.

    34 – I can see it happening here, or just not ever happening. Unfortunately, since we have pretty much no one worth having (please God don’t anyone give me a “Fitz”) in DOJ, the real impact of the evidence being evidence of crimes is kind of ameliorated by the fact that the proceedings where the info is sought are civil proceedings by and large.

    And a court is obviously not going to be particularly happy about having to make the sole call on outing info relating to CIA agents and “govt methods” and participation by guys like Cheney. The CIA has gone out of its way, too, to make sure that unwinding will be problematic. For example, the CIA chick who went to watch waterboarding for fun (and even eventually was reprimanded that the torture sessions weren’t actually for her personal pleasure according to Mayer’s book) was also the same CIA chick who headed up the kidnap to abuse of Khalid el-Masri, and she really didn’t care that much when what seemed likely from the beginning became crystal clear – that they had the “wrong” el-Masri.

    So what did the CIA do with someone that amoral and that obsessed with torture? Well, as info came out about some of her pecadillos, they gave ehr a covert assignment so that anyone talking about her would now be violating the IIPA. Why would you take someone who kidnaps innocent people, holds them forever in abuse until forced to release them then arranges for a release in a place where they will likely be killed anyway, and schedules torture entertainment trips for personal pleasure and give them free rein to operate “covertly?” The only sane rationale would be to try to attach privilege to the crimes.

    And the Judge is supposed to make all the determinations on how to proceed in ex parte, non-advocacy settings.

    As much damage as has been done to this country, no one has damaged it as mortally as the lawyers from the Dept of Justice.

  24. Mary says:

    37 – most judges are operating in a setting where they have a DA or USA’s office to back them up (not go after their throats and their families) and US Marshalls who have a clear duty to the court (as opposed to a setting where they have no clear duty to the court over the Executive) When ALL the enforcement mechanism is in the Executive, to the point where the Executive branch lawyers lie and destroy evidence with abandon bc they KNOW there will be no consequences (a conclusion Obama has backed up, by demonstrating that not even a capitol “c” Change in administrations has any effect of any kind) – well, it makes it hard to be the “tough” judge.

  25. Mary says:

    46 – well, kinda sorta Marshall, but more bc of the State of Georgia acquiescing than bc of the Feds moving in to enforce his ruling.

    Imagine if, instead of handing over the Nixon tapes (even with missing info) he had just destroyed them despite the court order out for their production. What then? Would the court have issued a contempt citation against the President?

    In any event, that’s what happened here – the Executive knowingly destroyed evidence it was under a duty to preserve. That’s why IMO no one has to muck around in the quagmire of “how bad is too bad” on the Yoo, Philbin, Goldsmith etc. opinions to have them disbarred. They all have refused to preserve evidence and helped to obstruct justice and disregard court rulings – all without disclosing to the court what was being done. Whether they were directly handling the cases or not, they had the duty to preserve and deliberately disregarded it. That’s something the courts could accomplish, but they don’t seem interested in even that effort.

    BTW – Canada recently had the “let’s see him enforce it” case before their courts and their courts crafted a response that allowed citizen self help to orders that gov wouldn’t enforce.

    http://www.mccarthy.ca/article_detail.aspx?id=4186

    • Ishmael says:

      Glad to see that our SCC decisions are getting a broader and thoughtful audience, but I have to say that the Holland case was rather puzzling to me – it was not so much a recognition of a “self-help” right, but more a statement that in certain cases, the govt risks liability for negligence based on the problematic “operational v. policy” dichotomy our SC has established in public liability cases. We do not have the same separation of powers in Canada as is familiar to Americans, so the analysis is somewhat different than in the US. Essentially, the court said you can sue the govt in negligence for failure “to implement an adjudicative decree”. Personally, I think the court dodged the issue by calling it negligence and making the remedy a new cause of action – the whole point of the case is that the govt knew exactly what it was doing in this case by stonewalling, in other words intentional action vs failing to meet the standard of care, but the courts would not call foul directly. I did not understand why mandamus or some other admin remedy would not work – to my mind the SC just muddled existing admin law doctrine and further complicated the state of government liability law in Canada by cloaking this case as a negligence claim.

    • macaquerman says:

      Going back and doing a little reading, it looks like it was barely, sorta at best. Marshall only took the first round.

      The Canadian case was fascinating. If I understood it slightly, the Court went quite a bit further than issuing a compliance decree.

      Thx

    • bobschacht says:

      This is unbelievable. Non-compliance must have consequences. Automatic disbarment? What would it take to give judges more power to enforce compliance– new laws? Is this something that the “founding fathers” did not foresee?

      Bob in HI

  26. WilliamOckham says:

    Here’s what I find weird about this. On Mar. 6, the DOJ said this about the documents:

    Point 2 requires the production of a “list of any summaries, transcripts, or memoranda regarding the records, and of any reconstruction of the records’ contents.” The CIA will complete this list on or before March 20, 2009. On that same date, the CIA will provide a public version of the list to the Court and Plaintiffs and, if necessary to explain fully the records at issue, will make available a classified version for the Court’s ex parte, in camera review.

    and this about the witness list:

    Point 3 requires the “[i]dentification of any witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.” The CIA will complete this list on or before March 20, 2009. To protect classified information and information otherwise protected by statute, the CIA contemplates producing a redacted, public version of the list to the Court and the Plaintiffs. The CIA will make available an unredacted version of the list for the Court’s ex parte, in camera review.

    [My emphasis]

    Just two weeks ago, the DOJ was setting the expectation that they would provide a public listing of the documents at issue and a redacted version of the witness list. Now they’re saying all the info on the document list is covered by FOIA exemptions and the witness list is all classified or protected by statute. Here’s what they aren’t saying:

    1. How many of the documents were already included in their previous FOIA list? If they are still working from FOIA rules, these documents may already have been identified and they should say that. On the other hand, if they are now searching operational records (something they don’t have to do under a normal FOIA search, but presumably should be doing now that they are responding to a contempt motion), these 3000 documents may be mostly or all newly added.

    2. The claim that the witness list is classified or “otherwise protected by statute” is interesting. I don’t think they’re talking about the FOIA statute because it really doesn’t apply. They didn’t say privilege either. So, what statute could they possibly be talking about?

  27. WilliamOckham says:

    Question for the lawyers (and anybody else with an opinion):

    Do you suppose they are going to argue that the witness list is protected grand jury information?

  28. foothillsmike says:

    What I don’t understand is can the judge look over this material to make an impartial decision as to whether it should be classified. If the judge needs a security clearance get him one.

    • frandor55 says:

      Judge Hellerstein is a “fixer” judge. He’ll keep things the way the DOJ wants it. He’s been the go to guy in keeping 9/11 under wraps.

  30. foothillsmike says:

    Everyone on the list should be deposed. Their identity can be protected. For the records identify them by number. Answers need to come out. Unless of course they all have the number 007/s

  35. JohnLopresti says:

    I think the DoJ shield addresses more than the instant matter of metadata and witnesses in the FOIA request. That there is going to be a dawn in FOIA responsiveness was apparent in the transparency executive order the new administration issued soon upon entering office. However, the entrainment of organized torcha was the second phase of the asymmetrical war counteroffensive mounted by the prior administration; its first defense seemed to be one of simple denial of laws of war by redefining war as civil society beset by individuals organized in asymmetrical arrays; the first defense, then, was as the IG report on the FBI’s course thru the mire depicted, albeit couched in terms in many passages, namely, permitting ‘heat’ of battle comportment ubiquitously globally by all US elements involved, military, intell, mercenaries. The intell history of experimentation and giving short shrift to convention was a natural fit for the early sallies into lawlessness, a reference organization with a history, probably much like many other ‘nations” intell outfits’ records and methodologies. What I see in DoJ’s advocacy is an interesting exercise in a zone in which some history might be told, but, it has to engage congress in more ways, if US is going to construct safeguards from the abuses which occur in strong executive governments which are operating outside law. In other words, putting the reckless abandon of AbuGhraib into the museum of history is going to take reconstituting how intell works. Intell is going to want Yooish a priori exonerations. The process extended back to the recartography which followed the end of hostilities in Europe and the Pacific in the last widespread conflagration. There is ample technology now to accomplish much that formerly might have involved ‘experiments’.

  36. randiego says:

    Where’s Marcy and Freep?? Oklahoma and Michigan are in a dogfight…

    I took Teh Sooners in my bracket, which means Teh Wolverines should be in good shape…

    • bobschacht says:

      They were in good shape until the last 5 minutes, but then their starters started to foul out, and Oklahoma solved the 1-3-1 and that was all she wrote.

      But how about this: if you had bet on Michigan to advance in the first round, but Ohio State and Illinois to lose, you coulda made a pile of money.

      Bob in HI

  37. Gitcheegumee says:

    I would be curious if some of these alleged statutes refer to torture conducted on international water,i.e.,torture ships.

    Sounds like a LOT of legal parsing going on there,imho.

    Here’s a few links:

    One Guantanamo detainee victim describes the “kinder, gentler” torture imposed by the Americans he thought he would be safe with: While staying at … more → …
    en.wordpress.com/tag/torture-ships/ – 12k – Cached – Similar pages

    Prison ships, torture claims, and missing detainees | World news … Jun 2, 2008 … America may have held terror suspects in British territory, despite UK denials.
    http://www.guardian.co.uk/world/2008/……terrorism – 85k – Cached – Similar pages

    OpEdNews » Will McCain Name Torture Ships for Big Donors? The United States maintains secret prisons on ships in the ocean in order to detain people outside the reach or even the knowledge of any …
    http://www.opednews.com/articles/Will…..2-303.html – 68k – Cached – Similar pages

    American Torture: U.S. Secret Prison Ships Hold Untold Number of … Jun 2, 2008 … So, now we will have to add secret prison ships to what Reprieve at their website calls the “global matrix of CIA torture flights and secret …
    http://www.americantorture.com/2008/0…..ntold.html – 27k – Cached – Similar pages

  38. Gitcheegumee says:

    I don’t use ATM’s.

    Nonetheless, my point is that the most miniscule transaction ,especially involving BUYING a good or service requires a paper receipt to validate an exchange,i.e., the transaction-especially to provide proof of purchase should you wish a return,or to balance the books at the end of the day.

    If you stop to think about it,even in this day of e-everything,when it comes down to actual legality,a signature and/or a piece of paper are required.

    Hard copy,PJ,hard copy.

    • Hmmm says:

      (Still wildly OT, but:) The worth of receipts for electronic voting has been disputed by analysts as a red herring. A receipt showing the details of how you as an individual voted does not help the election workers tabulate a re-count because they don’t have it, you do. If they print two receipts, give you one and keep one in case recounts are needed, then yes, they have one to use for any recounts… but how can it be proved that the votes that got electronically recorded are the same as those shown on the recount receipt? Computers and memory operate invisibly, it doesn’t do to simply trust the systems to do the right thing any time there’s any chance that they may actually be doing some wrong thing, whether through error or by some bad actor’s deliberate plan.

      Another problem with a receipt showing how you voted is that it makes you vulnerable to pressure to vote in certain ways, the classic example being an employer demanding to see how you voted on something that affects the company, and threatening you with dismissal if you vote contrary to the company’s desires.

  39. Gitcheegumee says:

    Vote quote:

    “Those who cast the votes decide nothing. Those who count the votes decide everything.”________Josef Stalin

  40. Valtin says:

    The first thing the Bolsheviks did when they took power is open up the Russian governments secret vaults and publish for the world to see all the secret agreements and treaties that had been made by the Czarist government with and between the “democracies” to divide up countries and split war spoils after WWI would end.

    Just sayin…

    (Will it take a revolution to pry the secrets out of the snaky hands of these criminal torturers?)

  41. Mary says:

    49-48 Ishmael spells it out. I didn’t know why the didn’t go for mandamus either, but I thought it might have to do with how that writ is recognized and applied under Canadian law. Self-help was a bad reference, it kind of brings car repo to mind.

    50- IIPA might be one of them. I’d say one argument they could make is that even if someone is engaging in criminal activity and so their participation can’t be properly “calssified” under Exec order, if they are “covert” then it is still against the IIPA to give the info on the identity.

    Unless, of course, you are Karl Rove.

  42. Mary says:

    75 – and somehow identity protection wasn’t a bar to trotting a CIA agent in to testify in Padilla’s trial about the “interesting” story of the documents, or for that matter, the Israeli agents that Fitzgerald used in his Saleh trial. Amazing how DOJ manages to get around that little problem when they want to.

  43. Mary says:

    OT but related

    Panetta goes on site to explain why we’ll keep bombing Cambodia Pakistan. Apparently he’s heard the US press version that Pakistan is worried that the CIA is killing “too many” innocent civilians and he’s going to help negotiate the acceptable number of civilians the CIA can bomb.

    However, Pakistani leaders publicly protest the strikes, arguing that they kill too many civilians, stoke anti-American sentiment and undermine the government’s own efforts to neutralize extremists.

    The New York Times reported this past week that U.S. officials are weighing extending the missile strikes into Baluchistan province in pursuit of insurgent leaders who have moved south in search of safety.

    emph added

    It’s so great, having guys with integrity, like Obama and Panetta, figuring out how many civilians we get to bomb in Pakistan. I hear they’ll be consulting with Palin – not only will it be a nifty kumbayah bipartisan moment, but she has experience with estabilishing kill limits for licenses. It’s a comfort to know that it won’t be “too many.”

    And I’m sure Panetta having to go over directly had everything to do with the CIA drones (weren’t other reports that these were US military drones?) and nothing to do with this:

    On Saturday, the retirement of Supreme Court Chief Justice Abdul Hameed Dogar opened the way for the reinstatement of a judge ousted by former military leader Pervez Musharraf and championed by opposition leader Nawaz Sharif.

    That ousted Judge, Chaudhry, was ousted for ordering that Mussharaf ante up with the names of people it had disappeared for the US, tortured for the US and/or sold to the US. Binyam Mohamed, whose treatment may be getting a second look in Britain (or no), had his story start in Pakistan. Aafia Sidiqui may – or may not – have been originally disappeared by Pakistani authorities for the US. Her trial is due up any time.

  44. macaquerman says:

    I am having difficulty getting any news about Siddiqui or her trial. (surprising, no?)
    Is it happening soon and where?

  45. Mary says:

    79 – It’s interesting the stories that you know were reported and that don’t come up on google all that easily any more.

    I don’t know that much has happened in the last couple of weeks unless they’ve kept it pretty under wraps.

    The end of February, two new lawyers entered appearances for her (from a firm of 2 – I think it was these guys but now I’m relying on a kind of unreliable search http://www.cardilaw.com/attorneys.htm) Right after that, the prosecutors revoked their earlier assent that she was unfit to stand trial and cited “new” and “not public” psychiatric evaluations in a motion.

    The court has probably allowed the new lawyers some time to get up to speed and to get their own evaluations, but when something will happen (or if it has happened and is being kept under wraps) I dunno. The first part of March, there was also some kind of activity in Pakistan, where the court there did something like ruling that the Pakistan gov needed to formally request her return and if they didn’t get a satisfactory response they needed to make a filing with the UN. But I don’t know enough about how the Pakistani courts work or the UN procedures to really put what they did in any kind of perspective, but it might be the reason for some silent running for awhile, as maybe some negotiations are going on.

    So far only 1 of 3 kids is accounted for – that’s not a great scorecard. imo

  46. macaquerman says:

    No, ! of 3 is pretty sad and finding out where the kids are is probably central to understanding what happened.

    I, too, couldn’t find anything beyond the early March Pakistani call for her return and some speculation that she might be in NY.

    • macaquerman says:

      4B ‘teenaged boy’?
      Does entering the complaint in SDNY mean she’s likely to be here and be tried in this district?( As per usual, pardon my ignorance.).

  50. Mary says:

    88 – getting way EPU’d but yep,she is likey to be tried in the district. My understanding is that some treatment was ordered for her earlier and I’m not sure that it was all done in SD NY, so she might not have been there the whole time. She was in a hospital type setting, IIRC, when the contingent from Pakistan came over to view her circumstances.

    And also yep – a reference to teenaged boy, no reference to him being her son or a US citizen or barly a teenager (13 or 14) and oh yeah, again, no reference to him being her son and a US citizen or that they separated them and left the teenager, by himself, to be disappeared in Afghanistan – with things going well for a few days (the US claiming no one knew where he was) until Pakistan made requests and had him reappeared and turned over.

    It’s like the early war tactics of kidnapping wives to get husbands to turn themselves in (and of course, have to kill the wives later since they had been dishonored) – the tactics of disappearing children don’t rate much of a mention by the “liberal” US press – or the radically liberal, weatherman jr., US President.

  51. macaquerman says:

    If she gets a trial here, which, apart from some quick declaration of her incompetence, would surprise me, I would think that the subject of her children would hit the media.

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