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Context of 'December 19, 2007: Law Professor Outlines Six Possible Criminal Offences in CIA Tapes Scandal'

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National Security Council lawyer John Bellinger.National Security Council lawyer John Bellinger. [Source: New York Times]The CIA meets three White House officials to discuss what to do with videotapes it has made of detainee interrogations (see Spring-Late 2002). The CIA wants to destroy the tapes, so it briefs the officials on them and asks their advice. The officials are:
bullet Alberto Gonzales, White House counsel until early 2005, when he will become attorney general;
bullet David Addington, counsel to Vice President Dick Cheney;
bullet John Bellinger, senior lawyer at the National Security Council;
There are conflicting accounts of the advice the lawyers give the CIA. One source will say there was “vigorous sentiment” among some unnamed top White House officials to destroy the tapes. They apparently want to destroy the tapes in 2005 because they could be damaging in the light of the Abu Ghraib scandal (see April 28, 2004). Other sources will say nobody at the White House advocates destroying the tapes. However, it seems none of the lawyers gives a direct order to preserve the tapes or says their destruction would be illegal. [New York Times, 12/19/2007] A source familiar with Bellinger’s account will say, “The clear recommendation of Bellinger and the others was against destruction of the tapes… The recommendation in 2003 from the White House was that the tapes should not be destroyed.” [Associated Press, 12/20/2007] When CIA Director Michael Hayden informs legislators of these discussions in late 2007, he will say that upon being informed high-ranking CIA officials are demanding the tapes be destroyed, the lawyers “consistently counseled caution.” The Washington Post will comment: “The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed. Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.” [Washington Post, 12/20/2007] Another White House official, Harriet Miers, is also consulted around this time and is said to advise against the tapes’ destruction (see Between 2003-Late 2005). [New York Times, 12/19/2007] When it is revealed that these officials were consulted, Law professor Jonathan Turley will comment: “[T]his is a very significant development, because it shows that this was not just some rogue operator at the CIA that destroyed evidence being sought by Congress and the courts. It shows that this was a planned destruction, that there were meetings and those meetings extended all the way to the White House, and included Alberto Gonzalez, who would soon become attorney general and Harriet Miers, who would become White House counsel. That’s a hair’s breath away from the president himself.” [CNN, 12/19/2007]

Entity Tags: Alberto R. Gonzales, David S. Addington, Central Intelligence Agency, Jonathan Turley, Michael Hayden, John Bellinger

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The Justice Department urges a federal judge not to begin an inquiry into the destruction of CIA videotapes in a case involving 11 Guantanamo Bay detainees. The judge in the case, Henry Kennedy, had previously issued a ruling that evidence related to the detainees should be preserved (see June-July 2005). After attorneys for the detainees file a motion saying the CIA’s destruction of the tapes “raises grave concerns about the government’s compliance with the preservation order entered by this court,” the administration argues it was not under an obligation to preserve the videotapes and tells US District Judge Kennedy that asking for information about the tapes’ destruction could “potentially complicate” a Justice Department inquiry into it. The Justice Department also says the judge lacks jurisdiction and is worried he will compel CIA officers to testify. In addition, the destroyed tapes were made outside Guantanamo, whereas the order previously issued by the judge only directly affected material in Guantanamo. However, evidence from “a senior al-Qaeda lieutenant” is being used against one of the detainees, and this lieutenant may have been shown on the destroyed tapes, making them relevant to the case. The Associated Press calls the Justice Department’s request “unusual,” and law professor Douglas Kmiec comments, “It’s hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry.” [New York Times, 12/11/2007; Associated Press, 12/15/2007] Another law professor, Jonathon Turley, comments: “The Justice Department insists it will essentially investigate itself and then tells the court that because it is investigating itself it won’t turn over evidence of its possible criminal misconduct. It’s so circular, it’s maddening.” [ABC News, 12/15/2007] In early January 2008, Kennedy will decline to hold a hearing into the destruction, saying that the destroyed tapes were not directly related to this case, as they were not made in Guantanamo. He is also “influenced by the assurances of the Department of Justice” that its criminal investigation will cover the issue of whether the tapes’ destruction “was inconsistent with or violated any legal obligations.” [New York Times, 1/10/2008]

Entity Tags: US Department of Justice, Jonathan Turley, Henry H. Kennedy Jr., Douglas Kmiec

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Speaking on CNN, George Washington University law professor Jonathan Turley outlines the criminal offenses that may have been committed in the scandal surrounding the destruction of CIA videotapes showing detainee interrogations: “There are at least six identifiable crimes from obstruction of justice to obstruction of congress, perjury, conspiracy and false statements. What is often forgotten, the crime of torturing suspects. Now, if that crime was committed, it was a crime that would conceivably be ordered by the president himself, only the president can order those types of special treatments or interrogation techniques.” [CNN, 12/19/2007]

Entity Tags: Central Intelligence Agency, Jonathan Turley

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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