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Published on Saturday, December 8, 2007 by Salon.com

"Missing" Evidence Is Familiar Bush Pattern

by Glenn Greenwald

The New York Times' revelation that "the Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency's custody" conclusively demonstrates obstruction of justice which, if Michael Mukasey has an ounce of integrity or independence, will be the subject of a serious and immediate criminal investigation. While the revelation is obviously significant, it is also is part of a long-standing pattern of such obstruction.

In April, I compiled a long list of the numerous court proceedings and other investigations which were impeded by extremely dubious claims from the Bush administration that key evidence was mysteriously "missing." Much of the "missing" evidence involved precisely the type of evidence that the CIA has now been forced here to admit it deliberately destroyed: namely, evidence showing the conduct of its agents during interrogation of detainees.

The most glaringly similar case was when, during the trial of Jose Padilla, DOJ prosecutors told the federal court that key videotapes of Padilla's interrogations by DOD agents, including the last interrogation they conducted of him, could not be located, a claim which -- for obvious reasons -- prompted expressions of incredulity from the Bush-appointed federal judge and virtually everyone else:

A videotape showing Pentagon officials' final interrogation of al- Qaida suspect Jose Padilla is missing, raising questions about whether federal prosecutors have lost other recordings and evidence in the case. The tape is classified, but Padilla's attorneys said they believe something happened during that interrogation that could explain why Padilla does not trust them and suspects they are government agents. . . . .

U.S. District Judge Marcia Cooke was incredulous that anything connected to such a high-profile defendant could be lost.

"Do you understand how it might be difficult for me to understand that a tape related to this particular individual just got mislaid?" Cooke told prosecutors at a hearing last month. . . .

Miami criminal defense lawyer David O. Markus said the missing tape makes the government agents look like "Keystone cops."

"You can't help but be suspicious," Markus said. "It's the government's burden to prove a case beyond a reasonable doubt. When it 'loses' evidence, defense lawyers are right to cry foul."

Not even the Bush administration could be so inept as to "lose" videotape records of the interrogations they conducted with one of the highest-profile "War on Terror" detainees, whose case had been the subject of intense judicial proceedings from the early stages of his lawless detention in 2002. The revelations yesterday of deliberate destruction of interrogation videos by the CIA obviously compels an investigation into how such videotapes in the Padilla case disappeared as well. There is another aspect of this pattern of lawlessness highlighted by yesterday's revelations: the endless complicity by two key Democrats on the Intelligence Committees -- Jay Rockefeller and Jane Harman -- in many, if not most, of the incidents of Bush law-breaking. As the ranking Democrats on the Intelligence Committees (Harman's tenure as such ended this year when Nancy Pelosi wisely refused to name her as Committee Chairman), both have been notified of most of these abuses, and in virtually every case, they have done nothing to stop them.

Both lawmakers were, for instance, briefed about the administration's illegal warrantless eavesdropping long before it was revealed. Rockefeller's reaction was confined to a pity-inducing, hostage-like, self-protective handwritten letter of meek protest he sent to Dick Cheney in 2003. He did nothing else.

Harman was even worse. Upon disclosure of the lawbreaking, she quickly turned herself into the leading Democratic defender of Bush's warrantless eavesdropping program -- and a leading critic of the NYT for having reported it. From Time in January, 2006:

G.O.P. strategists argue that Democrats have little leeway to attack on the issue because it could make them look weak on national security and because some of their leaders were briefed about the National Security Agency (NSA) no-warrant surveillance before it became public knowledge. Some key Democrats even defend it. Says California's Jane Harman, ranking Democrat on the House Intelligence Committee: "I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities."

The same exact enabling behavior occurred with the CIA's destruction of these interrogation videos. In his confession letter yesterday, CIA Director Michael Hayden said that "the leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency's intention to dispose of the material." Rockefeller admits he learned of this in November, 2006. And he did nothing. Identically, AP reported: "Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee and one of only four members of Congress informed of the tapes' existence, said she objected to the destruction when informed of it in 2003." But as was true with Rockefeller's "objections" to the NSA lawbreaking, her objections were confined to private expressions of "concern" to the CIA, and she took no steps -- no press conferences, no investigations, no demands for a criminal referral, no court action -- to impede this destruction-of-evidence plan in any way.

Clearly, it is the Bush officials who have engaged in this chronic lawbreaking and subsequent obstruction of justice who bear primary responsibility. But it is the complete abdication by Democratic intelligence "leaders" in Congress of their oversight duties which have played an indispensable enabling role in all of it. The administration knows that there will be little meaningful opposition in Congress to anything they do, little willingness to investigate it or hold them accountable, which is why they have been so brazen in doing these things. As former OLC official Marty Lederman put it:

Jay Rockefeller is constantly learning of legally dubious (at best) CIA intelligence activities, and then saying nothing about them publicly until they are leaked to the press, at which point he expresses outrage and incredulity -- but reveals nothing. Really, isn't it about time the Democrats select an effective Chair of the Senate Intelligence Committee, one who will treat this scandal with the seriousness it deserves, and who will shed much-needed light on the CIA program of torture, cruel treatment and obstruction of evidence?

And beyond all of that, Rockefeller is, of course, currently working with Dick Cheney to lead the effort to vest lawbreaking telecoms with amnesty, which will result in the complete stilfing of any investigation and adjudication of Bush's surveillance lawbreaking. And his partner in lawbreaking acquiescence, Jane Harman, co-signed a letter (.pdf) to Mike McConnell in August on behalf of the House "Blue Dogs" assuring him of their commitment to obtaining amnesty for telecoms (what they called "our private sector partners"). And, as former intelligence officer A.J. Rossmiller noted this week, the recent release of the NIE on Iran showed that Democratic Intelligence Committee leaders have "no idea what's going on" with those issues either. The country has stood by while one incident after the next of deliberate lawbreaking and cover-up at the highest levels of our government has been revealed. It is just axiomatic that when high government officials can break the law with impunity, the country no longer lives under the rule of law. That has been the United States for the last six years.

A key ingredient in that pattern has been the ineptitude and outright consent of the leading Congressional Democrats on the Intelligence Committees, particularly Jay Rockefeller. Lawbreaking of this sort will stop only once those with the ability to do so decide to impose real consequences and accountability for it. Until that happens, it will continue. Why wouldn't it?

UPDATE: Jane Harman's office emailed this:

Several blogs are reacting to incorrect information about Jane Harman's position on the videotapes destroyed by the CIA. The original AP story, which reported that Harman was informed of the tapes' destruction in 2003, was wrong and has been corrected. Harman was never informed of the tapes' destruction (reported to have occurred in 2005) and made clear to the CIA that any proposed destruction would be a bad idea. Her 2003 letter to the CIA General Counsel which she has urged be declassified has never been responded to. The updated story is here.

Duly noted, but that changes nothing of what I wrote. Harman was notified of the CIA's plan to destroy the videotapes and did nothing other than send a private message to the CIA advising them not to do so. There are all sorts of mechanisms available to the ranking member on the Intelligence Committee to investigate and expose illegal conduct on the part of the intelligence agencies (as I set forth here). That's the whole reason why the Intelligence Committees were created. Harman invoked none of those mechanisms. Quite the contrary, upon learning of the CIA's intent to obstruct justice and destroy evidence, Harman did nothing other than privately ask them not to do so (and presumably never bothered to follow-up to receive any commitment from them that they wouldn't destroy that evidence). In other words, upon learning of the CIA's intent to commit a criminal act, she pointlessly (and self-servingly) put herself on record as being opposed and then went about her business -- exactly as Jay Rockefeller did upon learning that the Bush administration was illegally spying on Americans. That isn't why we have Congressional oversight of the intelligence community, and it speaks volumes that Harman's office apparently thinks this version of events reflects well on her at all.

UPDATE II: This post by Jonathan Schwarz, regarding a highly revealing interview given by Sen. Rockefeller earlier this year to Charles Davis, explains much of this.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

© Salon.com

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