Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.



If there is any worthwhile or meaningful response, I will advise.

  1. phred says:

    How quaint bmaz, you still think we live in a country governed by the rule of law ; )

    Those were the days, eh?

      • Mary says:

        You and bmaz and your straightforward questions. You need to send them something like this – “My niece is a recent graduate of Regency Law School. She is very interested in pursuing a career in torture facilitiation. Can you provide an address where we could forward her resume or contact person? She’d be particularly interested in torture that could generate false information that would be presented to the UN and used to start a war that would leave thousands lifeless, thousands more limbless, and millions as refugees. If you could direct us to the correct department, I’m sure she would have a bright future with your institution.”

        The people who have been handpicked to work on the already shallowly and narrowly limited topics were picked bc they were the right people. They aren’t going to answer questions or lose sleep. They won’t flinch over the torture, they won’t flinch over the body bags from the wars the torture was used to justify, and they won’t flinch over their roles in desecration of justice. Not to be oversimplistic, but in the end, it boils down to – they aren’t good men and women. That’s why they were picked.

        • liberaldem says:

          It’s also worth remembering that DOJ has a percentage of ideologues who were hired under the Bush administration who have burrowed in, and will work from within to undermine any feeble efforts by the Obama DOJ.

        • bmaz says:

          Um, that really has close to zero to do with any of this; it is entirely a matter of choice by Obama and his political appointees. To the extent any “burrowers” were involved, it was because their principles, or lack thereof, aligned with the Obama crew.

        • Mary says:

          That is a part of it, but it’s more a non-ideologic (as in, amoral v. immoral) approach to a) career enhancement without concern for human, institutional and national cost and b) a games playing mentality common in the legal field where it becomes an “us” v. “them” approach, especially when the investigations are inhoused, so that the “us” is the investigators AND those they are investigating and those who structured the investigation to accomplish a preordained end result, and the “them” are the victims of actions that are being investigated or those who are calling for truth and transparency and responsibility. The “team” for the inhouse investigators is the admin they are investigating and especially the superiors who gave them the wink and nod in how they set up the investigation parameters.

    • phred says:

      Of course not, no comment until next Tuesday. Then they will have all the time in the world to make their excuses. And no one will be able to do a damn thing about it.

      Since bananas don’t grow well in the continental US, we need to coin a new name for our corrupt republic… How ’bout a “corn republic”?

    • bmaz says:

      Funny thing about that; once the statute has run, they can no longer hide behind the “pending investigation” baloney. Wonder what they will say then?

      Yeah, I know, same baloney….

  2. Jeff Kaye says:

    Great letter, bmaz! and thanks, Jason, for asking and reporting what DoJ/Durham’s office had to say.

    It will take some real social outcry before we get anything out of the government. Torture is institutionalized now, so they can do nothing without calling great swaths of the bureaucracy itself into question.

    This goes hand in hand with the failure of Congress to initiate an investigation into the war crime of handing over prisoners for torture, as recently revealed in the Wikileaks Iraq logs, in the sense that the non-responsiveness of the oversight functionaries (picked, as Mary said, b/c they are not nice people) is generic to their office at this point.

    How far we have come as a nation since even 2002. (And by far, I mean, in the downward direction.)

  3. pdaly says:

    What rescues the situation from the expiring SOL? an arrest? or the beginning of a prosecution.
    If an arrest is adequate to rescue the expiring SOL from expiring in the short run, why not sponsor a citizen’s arrest of the do-badders?

    • bmaz says:

      Nope, nothing short of indictment or direct complaint, i.e. the formal filing of charges with the court. Other than that, poof!

      • pdaly says:

        That if the law if followed. Do you think law breaking politicians would notice if the law is not being followed? Tee Hee.

  4. rosalind says:

    another OT: speaking of popcorn, “Fair Game”, based on Valerie Plame & Joseph Wilson’s books, opens this Friday (tomorrow). From Mick LaSalle’s SF Chronicle review:

    “Penn plays Joseph Wilson with a good eye for the real Wilson’s two-fisted intellectual quality and for the way his veneer of calm persuasiveness barely covered his outrage. He’s effectively contrasted with David Andrews, who plays Lewis “Scooter” Libby as the worst kind of bully, an amoral weakling hiding behind his boss’ skirt.”

    heh. i am so there friday.

  5. bobschacht says:

    y’know, I’m beginning to think that the only way we’re going to get justice on this front is when the Republicans decide that it’s time to pin the blame for torture, warrantless wiretaps, etc. on *Obama*. Help me with the timing here: At what point will the SOL run out on all the Republican administration’s involvement, but will not have run out on stuff done during the Obama administration?

    What we seem to have here is that the Democrats are scared of impeaching anyone on any grounds, no matter how heinous, but the Republicans are eager to launch impeachment investigations on the flimsiest of pretexts. They obviously learned different lessons from the Clinton impeachment proceedings than the Democrats did.

    Bob in AZ

  6. dopeyo says:

    IANAL, but i work down the hall from some lawyers. while durham et al might plead incompetence upon letting the SOL run out, is there a case to be made for malpractice that could be initiated by others? i’m thinking of the ethics complaints against john yoo.

    second question: does the ICC in The Hague recognize the SOL which runs out monday in the U.S.? or does that door close on tuesday, too?

  7. klynn says:

    bmaz thanks for your efforts.

    And may I remind all of a fantastic piece bmaz wrote that should be printed off and sent with any letter you might write to the DOJ and Durham.

    Now, I remember the letter the Judiciary committee signed about this investigation. Wasn’t there a letter signed by top law professors around the nation? I cannot find it. Which law school has been investigating torture — I forgot which one.

    And to Mary— You have a great mind. Your thoughts @ 7 were spot on.

    • skdadl says:

      klynn, are you thinking of Seton Hall? They did the investigation into the deaths at Camp No at GTMO, eg — EW had great discussions last December, I think. I vaguely remember the letter you refer to, but I’m not sure who organized that.

    • Mason says:

      From a report at Democratic Underground 4/3/2009:

      Newark, NJ /PRAvenueNW/ — Today Seton Hall Law delivered a report establishing that military officials at the highest levels were aware of the abusive interrogation techniques employed at the detention camp at Guantánamo Bay (GTMO), and misled Congress during testimony. In addition, FBI personnel reported that the information obtained from inhumane interrogations was unreliable.

      Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented on the findings: “Who knew about the torture at GTMO? Turns out they all did. It’s not news that the interrogators were torturing and abusing detainees. We’ve got FBI reports attesting to this. But now we’ve discovered that the highest levels knew about the torture and abuse, and covered it up.


  8. Mason says:

    Here’s a link to the 40 page report on torture produced by Professor Denbeaux and the Seton Hall Law Center for Policy and Research.

    It’s a PDF file.

    • Mason says:

      The title of the report is,

      An Analysis of the FBI and Department of Defense Reactions to Harsh
      Interrogation Methods at Guantanamo

        • Mason says:

          I understand why you thought I made it up. The administration has turned a fetish of excusing wrongdoers and stupidity into an incredibly bad joke by repeatedly saying “Who could have known?” in circumstances where a PB&J sandwich would have known.

  9. Mason says:

    Somehow I missed signing the original letter. I’d be delighted to sign one now.

    I’d also like to send my own letter anyway. Bmaz, what are the email addies for Holder, Durham, Boyd, and Schmaler?

  10. wigwam says:

    Barack Obama took at oath to uphold the Constitution, Article 2 of which requires, him as president, to take care that the laws be faithfully executed, i.e., that crimes be punished. He has broken his oath.

  11. tjbs says:

    Torture/ Murder/ Treason will Durham chose what’s legal or caste his lot with the traitors.

    If this isn’t treason then there is no treason.

  12. MadDog says:

    Late to this post, but hopefully not irrelevant – just out via the AFP:

    US still investigating waterboarding torture: official

    A senior US official said on Friday that waterboarding was clearly outlawed as torture, with an investigation still under way to see if those who ordered such a practice could be prosecuted…

    …Harold Koh, legal adviser at the US State Department, said…”I think that the Obama administration defines waterboarding as torture as a matter of law under the convention against torture and as part of our legal obligation… it’s not a policy choice,” Koh told journalists after being asked about the report.

    Asked whether the United States was still considering investigation or federal prosecution of those who might have ordered such a practice in the past, Koh said the matter was being examined by Special Prosecutor John Durham in Connecticut.

    “Those investigations are ongoing. So the question is not whether they would consider it, they’re going on right now,” he explained…

    Who knows whether Koh is in the loop on this stuff, but I thought I’d pass it along.

  13. Mason says:

    Here’s a copy of my letter to Eric Holder, John Durham, Tracy Schmaler, and Dean Boyd. I just emailed it to the four addressees.

    I’ll post any response that I receive.


    Mr. Eric H. Holder, Jr.
    Attorney General of the United States
    United States Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530-0001

    Mr. John Durham
    First Assistant United States Attorney
    District of Connecticut
    450 Main Street
    Room 328
    Hartford, CT 06103

    Ms. Tracy Schmaler
    Deputy Director
    Office of Public Affairs
    United States Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530-0001

    Mr. Dean Boyd
    Public Affairs Specialist
    Office of Public Affairs
    United States Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530-0001

    Dear Mr. Attorney General Holder,

    The five-year statute of limitations, within which to initiate a prosecution against a person who intentionally destroyed CIA tape recordings of individuals who were being tortured by U.S. officials while in U.S. custody, expires on Monday, November 8, 2010. As a retired law professor, former criminal defense attorney, and defender of the Constitution, Bill of Rights, and the Rule of Law for more than thirty years, I am extremely concerned by the absence of an indictment or complaint charging anyone with destroying the 92 missing tapes and the absence of any official explanation regarding why.

    I should not have to remind or explain to anyone at the Department of Justice that “looking forward, not backward,” is a political policy and not a rule of law. I am not alone when I characterize the policy as an intentional obstruction of justice by concealing evidence of a crime, which is the same crime, by the way, that was committed by the person or persons who destroyed the tapes. As you well know, obstruction of justice and conspiracy to obstruct justice are federal felonies and impeachable offenses.

    The Department of Justice’s silence is deafening. I cannot think of any reason why the department has not indicted anyone yet or officially announced why it decided against seeking an indictment. Under the circumstances, I cannot imagine that a grand jury would have refused to return an indictment, so what is going on?
    A little over 60 years ago, Justice Jackson of the United States Supreme Court prosecuted and convicted German officials for war crimes, including torture, and crimes against humanity. He did not “look forward, not backward,” to avoid his responsibility to uphold the rule of law. He accepted the responsibility and so should the Department of Justice.


    Professor of Law

  14. xargaw says:

    We have a collection of people in government that are only concerned with personal career security and advancement, and feel no moral obligation to their craft or sense of duty to those they are supposed to serve. Shame and outrage for the horrific is dead. There is only indignation for personal slights.

  15. fatster says:

    Iraqi prisoners were abused at ‘UK’s Abu Ghraib’, court hears
    Detainees were starved, deprived of sleep and threatened with execution at JFIT facilities near Basra, high court told