Torture Tape Destruction Accountability: How It Is Done

images5thumbnail1.thumbnail1When the government possesses videotape evidence of the torture of subjects under its dominion and control, there is only one reason to destroy the tapes. That reason is not because they possess no evidentiary value; in fact it is the direct opposite, it is because they are smoking guns. Videotapes are definitive for one of the two sides; they either prove the subject was tortured, or they prove that he was not.

Either way, videotapes of detainee treatment are of paramount evidentiary value where there are allegations of torture. It would be insane to argue that such tapes have “no possible evidentiary value”; yet that is exactly what the United States government has officially claimed as their rationale with respect to the infamous destruction of the “torture tapes” depicting the treatment of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were wantonly destroyed by the CIA in 2005, news of the destruction became public via a December 6, 2007 article in the New York Times and the DOJ specially assigned a prosecutor, John Durham, at the end of December 2007.

In the nearly two years that have elapsed since the appointment of Durham, he and the crack US Department of Justice have apparently not been able to find anything wrong with the destruction of the torture tapes. But, once again, US Federal courts have demonstrated the dithering perfidy of the Executive Branch, whether it be that of George W. Bush or, in many key Constitutional respects, his clone, Barack Obama.

From the Kansas City Star:

A Missouri prison inmate claims he was restrained for 17 hours without breaks to get a drink of water or use the bathroom.

But videotape that could prove or disprove Darrin Scott Walker’s allegations of abuse cannot be found.

And a federal judge this week concluded that prison officials intentionally destroyed the tape “in a manner indicating a desire to suppress the truth.”

U.S. District Judge Richard Dorr made the ruling in a lawsuit Walker filed alleging that he was subjected to cruel and unusual punishment.

The case is Darrin Scott Walker v. Michael Bowersox, and is filed in the Western District of Missouri (WDMO) in Case No. 05-3001-CV-S-RED. Here is a copy of Judge Dorr’s Order.

First off, it should be noted that as bad as the alleged torture of Walker is, it is nowhere near the the sadistic and egregious conduct performed upon Zubayduh and al-Nashiri. Secondly, in Walker, the court was confronted with a tape that was “lost”, maybe taped over. In the cases of Zubayduh and al-Nashiri, the US government, with malice aforethought, wantonly and intentionally physically destroyed the evidence; light years worse conduct than that in Walker. Yet Judge Dorr blistered the state for its acts in destruction of evidence:

For all of the following reasons, this Court agrees with Walker that the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth. The prison had adopted a policy that required episodes on the restraint bench be videotaped. The Defendants offered no explanation of what happened to the tape, other than the fact the tape could have been taped over, which indicates intentional destruction. The videotape was delivered to a responsible person for safekeeping by people who believed the videotape should have been kept in case of litigation. The Defendants were on notice to keep the videotape because prison officials knew Walker was considering a lawsuit the night of the incident. Lastly, the loss or taping over of the videotape was not a first time incident.

You have to wonder what Judge Dorr would think of the acts of Jose Rodriquez, the CIA and the highest levels of authority in the Executive Branch in destroying the “torture tapes” if this was his opinion in Walker. Dorr went on to hold that there should be a presumption that the destroyed tape was negative to the interests of the government in Walker and cited strong authority for said holding.

The Walker v, Bowersox case, and the strong foundation it is based on, just adds to the curiosity of the lack of ability of John Durham to find addressable conduct in the case of the torture tapes. Granted, one is a civil rights lawsuit, and one is a criminal investigation for obstruction, but the theory of culpability is the same.

Hey John Durham, where are you and what say you? Or are we just going to be peddled a bunch of Bull by Durham?

31 replies
  1. al75 says:

    EW, I remember references to people clowning around on the destroyed tapes – i.e. in addition to depicting torture, the tapes appeared to illuminate a kind of perverted frat-boy state of mind among some of the operatives.

    Do you – or the rest of you – know anything about this?

  2. tjbs says:

    The truth is out there . In this day and age of cellphone cameras and video, that someone there in the torture crew or in the room reviewing the tapes made a copy.
    Somewhere someway they will turn up.
    Imagine being tortured and waiting two years for a charge to be filed, by someone who’s only job for two years to investigate this, how much faith would you have in the court system to redress you, an innocent torture victim. I guess they will get their justice after they are dead and gone.

  3. Jeff Kaye says:

    The CIA has long made a practice of destroying evidence. They operate outside the law, and their crying about how they are hamstrung by various laws and such is simply a bunch of hooey.

    At bottom, the issue is still an out-of-control executive branch. The inability to prosecute CIA officials for destruction of evidence is the flip side of the Obama administration’s “state secrets” campaign in the courts. Underneath it all is the executive branch’s desire to have exclusive control over a paramilitary outfit that exists to do its bidding, whether it be subverting a foreign election, organizing a coup, assassinating “terrorists” or foreign oppositionists or politicians, or even spying against domestic targets. — Over time, given the power invested in the CIA, some confusion has occurred, as the individuals involved forget who is the dog and who is the tail in that dynamic.

    Thank god for the Church and Pike investigations, because we depend upon whatever fear of oversight those investigations placed in high IC officials. That and a once more vibrant press. But with greater time and distance, even those safeguards are fraying badly at the seams (witness what happened to FISA).

    The Durham “investigation” was, as so much that goes on around the spook community, a misdirection. Nothing will be accomplished there. It’s a dead letter.

    Good catch, bmaz. Fascinating reading. Perhaps somewhere, some politician will get a spine and make a point of going after the Intel community and their crimes, unafraid of the fusillade of faux-patriotic BS that will be thrown their way.

  4. Hmmm says:

    To extend your logic one step, bmaz, since only a 100% video record of a detainee’s entire time in custody could prove the absence of torture, the only kind of evidentiary value that shorter tapes could have in re torture would be to show instance(s) of torture.

    • bmaz says:

      However you look at it, if they were not harmful, or even if they were somewhat harmful, but demonstrated that usable intelligence was obtained, they not only are not destroyed, they are paraded around in glory. They were killers against the government and that is why they supposedly no longer exist. Any other argument is just crap (ask Judge Dorr!).

  5. Mary says:

    @6 – yeah, you would always tape over a tape that was specifically handed off to a major in the system because of litigation/constitutional violation concerns. ;)

    Nice post bmaz. I keep wondering whatever happened to the lawsuit that Sean Baker filed against Rumsfeld et all, 4+ years ago now (in 2005). Maybe it’s even been settled? I probably should find a time to go look in the ED some time to see a status. Of course, with Obama settling Horn and Higazy this one may be in the works for settlement too, but if not it poses a nify little dilema. Do you rule along the lines of Judge Dorr that the destruction of the tape – an almost immediate destruction – of Baker being beaten into disability by an extraction team is grounds for sanctions and negative inferences, etc. – and have that as precedent when “teh terrorists” make their same claims about destroyed tapes from their treatment at GITMO, or do you support a soldier by allowing evidence of him being beaten into disability to be destroyed with no consequences?

    Maybe someone could ask Dana Perino to chime in?

    Or not.

  6. Peterr says:

    As good as the quote above from Judge Dorr’s order is, what immediately follows it in the order is even better:

    In Lawrence v. Bowersox, the Eighth Circuit stated:

    We pause here to note a disturbing tendency by units within the Missouri Department of Corrections to “misplace” videotapes of prison incidents. In addition to the missing original videotape in this case, in Estate of Davis, 115 F.3d at 1392, the court noted that a videotape from the Potosi Correctional Center was “lost after it was forwarded to the Missouri Department of Corrections.” Furthermore, in Foulk, 262 F.3d at 702, an official from the Moberly Correctional Center admitted that a videotape had been “destroyed or taped over.” We are aware that large bureaucracies cannot have a foolproof system for preserving records. However, three missing videotapes in approximately five years of incidents giving rise to litigation within one prison system strikes us as more than mere coincidence. Perhaps it is time to remind the Missouri Department of Corrections that Rule 37 of the Federal Rules of Civil Procedure allows a court to strike pleadings and enter a default judgment against parties that fail to comply with discovery orders, fail to disclose information required by Rule 26(e)(2), or provide false or misleading disclosures.

    Lawrence v. Bowersox, 297 F.3d 727, 732 n. 2 (8th Cir. 2002).

    Here there is a continuation of the pattern the Eighth Circuit discussed in Lawrence. The Walker incident occurred a mere seventeen months after the Eighth Circuit issued its warning. The Missouri Department of Corrections’ history is a strong indication the Walker videotape was deliberately destroyed with an intention to suppress the truth. Accordingly, there is sufficient evidence showing the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth.

    That was from 2002. Perhaps it is time to remind Main Justice as well as the DOD, DNI, and others in the executive branch about Rule 37. They certainly have exhibited a history of behavior at least as egregious as the MO Dept of Corrections.

    • bobschacht says:

      I suspect that there are those in gov’t who would prefer an adverse Rule 37 judgment to having the actual contents of those tapes revealed to the public.

      In any case, thanks for pointing to Rule 37 and these precedents.

      Bob in AZ

  7. bobschacht says:

    Thanks for this!
    However, I find fault with your conclusion about “…the lack of ability of John Durham to find addressable conduct in the case of the torture tapes.”

    I doubt that this is a matter of “ability.” It may be that “desire” is what is lacking, but it also may be that timing is an issue. To quote The Philosopher, for everything there is a season. We won’t see anything on this until Obama has a Health Care bill to sign. But I still suspect that next year, the tide will turn.

    Bob in AZ

    • bobschacht says:

      David Shuster is reporting on the Ed Show that the FBI interview is the basis for perjury charges. But Fitz didn’t pursue it because he’d need to get someone like Scooter Libby to flip.

      And I suppose to put scooter on the stand again, as a felon convicted of perjury already, his testimony re: Cheney would not be credible.

      Of course, that would set up an interesting case: If Libby told the truth, Cheney’s defense team’s strategy would be to accuse Libby of perjuring himself again. Given Cheney’s persistent defense of Libby, wouldn’t that be a big shift for him?

      On the other hand, Libby could explain away his testimony and perjure himself by claiming that Cheney didn’t know. In that case,could Libby then be charged with perjury again?

      Bob in AZ

  8. alinaustex says:

    bmaz in your opinion when can we say definitively that the Durham investigation is a “dead letter ” ? And since you are clearly the legal scholar and attorney here can you cite any other investigations that may have had this complexity that went beyond the two years that you say Durham has wasted– that eventually did bring criminals to justice ? Moreover maybe you know when USA Attorney Durham is going to call it quits and issue the whitewash apologist findings that you so confidently predict he will ? Do you have access to secret grand jury testimony that we do not ? What is the basis for your pronouncements that Durham and his team will not bring indictments against Principals ?
    Certainly bmaz I am not an attorney -but it seems to me we need to allow more time for Durham to wend his way through this legal thicket that is created by the tape destruction.
    It ain’t over bmaz til its over -and right now I daresay its only your opinion that the Durham investigation appears to be fated to be the official papering over of the criminal wrongdoing committed by gwb43 ,,,
    Our $ 200 bet still stands sir …

    • bmaz says:

      Oh, it is not over, you are correct there. It is complete bullshit that he has not been able to hand up an indictment yet though. Until he proves otherwise, I will treat Durham just the same as the other corrupeted horse manure that has served as a Justice Department for the last several years. That is a presumption both he, and they, have fully earned.

  9. earlofhuntingdon says:

    “In a manner indicating a desire to suppress the truth”.

    Mens rea, malice aforethought, guilty knowledge: knowledge that the acts documented by the tapes was unlawful or could reasonably be believed to have been unlawful, and knowledge that the destruction of the tapes would hinder the discovery of that unlawful conduct, which makes the destruction itself unlawful.

    For Mr. Durham not to conclude that destroying the tapes was routine or otherwise not harmful, he would have to show that the tapes recorded activity no more novel than the behavior of midnight shoppers at a 7-Eleven. For that to be true, the shoppers would have to be Steven Seagal, Jet Li and Jackie Chan, and a dozen bookies they owed money to.

    In reality, we know that the activity being taped was so novel and of such importance that it was authorized by and the tapes themselves were viewed by senior administration officials inside the White House. Millions were spent on the “arrest”, detention and interrogation of prisoners. The interrogations were “experimental”, outside the norm both intrinsically and legally. The interrogations were used to elicit information deemed vital to the United States – or to establish that the subjects knew nothing or no one of value (itself valuable information) – and to gauge what “techniques” worked and how, so that the techniques could be modified or replicated for use on others over an extended period of time.

    One possible saving grace is the existence of OLC “legal opinions”, which purport to sanction specific behavior. The problems with it are many. Only a small, uncertain number of officials saw them and, hence, had actual knowledge of the acts they claimed were legal – were not torture – when done in a certain fashion.

    At best, only those who saw those opinions or somehow otherwise learned of and followed their precise terms could rely on them. Even then, their legal claims were highly controversial and poorly argued. Moreover, at the time the tapes were destroyed, it was unclear, but doubtful, that the acts they documented remained within the limits set forth in those opinions. Which made the tapes essential evidence in determining whether the behavior they record was legal, or whether it was criminal behavior and possibly a war crime, punishable by death or a lengthy term of imprisonment.

    Nevertheless, the tapes were intentionally destroyed. The only conclusion possible is that the tapes documented behavior outside the scope of protection offered by those opinions. Or, notwithstanding that the behavior was within that permitted scope, the opinions themselves were recognized as obviously and fatally flawed and that they offered no protection.

    Something else to consider is the talent pool whose behavior is in question. The interrogators and those who made and viewed the tapes were the best and the brightest the Cheney administration could find. They were exceptionally politically and legally sophisticated. They had detailed knowledge of torture and the laws that apply to it. They also knew that obstruction of justice makes all other crimes harder to prove and carries a much lighter sentence then death or lifetime imprisonment.

    At a minimum, Mr. Durham should be able to make a convincing case for obstruction. If he wants to. Why doing so should be feared as a political “distraction” rather than looked upon as the routine enforcement of the law – one of the executive branch’s few, explicit constitutional duties – is hard to fathom.

  10. alinaustex says:

    bmaz @ 17
    Very well bmaz , you are entitled to your presumptions and opinions – and me to mine . (But on what specific basis is Durham equal to corrupted horse manure – ?)
    OT but good report on the Fisker , glad they got that deal – hope you all make automotive history …

  11. alinaustex says:

    earlofhuntingdon@ 18
    “in a manner indicating a desire to suppress the truth ”
    Is it a fair critique that USA Attorney Durham should have brought indictments against someone by now because the evidence is so abundant to do so ? Or could it be there is so much wrong doing done by several Principals that it might just be taking awhile to bring the first indictment – because it could be several indictments at once ?

  12. earlofhuntingdon says:

    The most that can be said for Durham is that he may need more than circumstantial evidence for a conviction. If no one who has first-hand information blabs, it would be hard to get a conviction.

    He would be taking an almost unprecedented step. Almost in that Nixon resigned rather than face impeachment, trial, loss of office and possibly criminal prosecution thereafter. One of his VP’s, Spiro Agnew, left office under a similar cloud, in his case of corruption. But Nixon’s case comes closer in that his was corruption in the service of staying in power. Cheney’s was too, but he’s alleged to have committed far worse crimes, such as authorizing state-sanctioned torture, a national and international crime with severe penalties. Hence, the political tentativeness.

    To be fair to everyone else, this Democratic administration is so tentative about everything, it wouldn’t bet that the sun rises in the East without first asking Joe Lieberman or Olympia Snowe their opinions.

  13. timbo says:

    There is another area of interest in those tapes in that they might show direct evidence of many different kinds of violations of various Geneva treaties. Not to mention direct evidence of government contempt for US courts…oh, wait, let’s mention that too.

  14. alinaustex says:

    earlofhuntingdon @ 23
    And would that we would be blessed by Statesman like Howard Baker – that would be prepared to be defend Our Constitution first . Recall Senator Baker went up the Whitehouse driveway to tell President Nixon resign or be impeached . Perhaps its time for a third political party -one that would put defending the Constitution first .
    Also as an ironic aside the speechwriter for Agnew – Pat Buchanan who had that wonderful gift of alliteration in speeches written – (‘the nateering nabobs of the press’ )-well Pat is doing a lot of nateering himself these days on the MSM -Wonder what Mr Bucahanan’s position on the Plame illegal declassification would be if it had been a Democratic VP that outted Brewster Jennings for political reasons -ie to push back on charges that the same VP had started an illegal occupation of a soveriegn country.
    Maybe we should call the third party the ‘ Sam Rayburn- Howard Baker Constitutionalist”
    And to wind up where we began I still have faith in Durham and his investigation –

    • PPDCUS says:

      Redefining Accountability

      Sam Ervin & Howard Baker have no peer in today’s congress. Russ Feingold can’t move anything through judiciary when he’s flanked by whores like Lieberman, Specter, and Graham.

      What we’re left with is the Roberts Star Chamber and our Constitution hanging by a thread called Justice Kennedy.

      And President Change We Can Believe In can’t distinguish Make No Mistake from Preserving, Protecting and Defending the Constitution of the United States.

  15. rafflaw says:

    John Durham is the brother of Bull. There is no way that the CIA can destroy those tapes for any reason other than to cover their backside. I am of the opinion that there are still tapes that the CIA is not admitting to. We need a real investigator to dig deeper.

    • PPDCUS says:

      By this logic, a refusal to destroy those tapes showing their violations of law and human rights would amount to backtricide. Wouldn’t it?

  16. busboy33 says:

    I have never understood the “they have no value so we destroyed the tapes” argument.

    Absolute best case scenario, the tapes show absolutely nothing, and the answers contained on them are utterly worthless (which as an aside demonstrate we got the wrong guys). Why not save them anyways? How much possible physical space could the videos hold? 2 DVDs? It’s not like they are shot in 1080p Hi-Def. Seems like it takes more time, effort and resources to destroy them than to archive them.

    Just because they appear to have no evidentary value today doesn’t mean they won’t in the future. We’re (allegedly) talking about terrorists here. What if in the future technology is developed that can discern if someone is lying from their vocal patterns? Thank God we got rids of all those tapes. Blood evidence that has been “useless” in rape/murder cases for decades has suddenly become valuable thanks to advances in DNA analysis. Why risk not having access to potential evidence in a potential terrorist attack case?

    . . . y’know, aside from the obvious answer.

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