Wednesday, December 12, 2007

Jack Bauer and Fuji Watch Day 8

CIA Destroyed Two Tapes Showing Interrogations -Jack Bauer needs a critical piece of information - right now- to prevent terrorists from exploding a dirty bomb in Los Angeles. Without regard for the consequences (Jack's not worried about going to jail or getting sued), Jack kneecaps the terrorist, gets the information, saves LA and ends the season in a blaze of glory, just like the real CIA except for, well, everything. The real CIA has time to shop and shop for a legal opinion until they find John "Anything Goes" Yoo at the Justice Department who tells them torture is OK. The real CIA has time to tape its interrogations. Nobody knows if the CIA learned anything useful or did anything with whatever they learned. Then the real CIA realizes it has a problem, oops, what do I do with the tapes?

White House and Justice Department lawyers say it's not advisable to destroy the tapes. This seems to be what every lawyer will always say when asked whether a specific, potentially controversial record should be destroyed. It's always a problem to destroy evidence of a crime. Records that are relevant in a civil suit can't be destroyed once a claim is made. Destruction before a claim is made may be technically legal in some situations, but gaps in the evidence can do more harm than the record itself at trial, so the cautious lawyer always answers that destruction of problematic records is not advisable, the only safe destruction is routine file clearance as part of a regular records maintenance program.

This is not what the CIA wants to hear. They know they look like criminals on some of the tapes and they know the advice from John Yoo is too good to be true. The head of the CIA's Directorate of Operations, Jose A. Rodriguez, Jr. finds an unlucky internal CIA lawyer and ask the same question every day, "what is this not advisable crap, why can't we get rid of these tapes?" Eventually the unlucky CIA lawyer cracks. It's possible there was some waterboarding involved in the conversations Mr. Rodriguez had with this unlucky lawyer, but it wasn't caught on tape. After two years of constant badgering, the unfortunate CIA lawyer grudgingly concedes that there is no pending proceeding in which the torture tapes would be evidence and mumbles that there is probably no absolutely clear legal prohibition on destroying the tapes, provided they are not evidence of a crime. Mr. Rodriguez destroys the tapes before the CIA lawyer can blink, reminding everyone, as the fumes of the burning tapes fill the room, that they can't be evidence of a crime because John Woo told us everything was legal. The CIA lawyer didn't expect anything to happen so fast, but it's done.

When CIA torture eventually does become the focus of Congressional and judicial proceedings, everyone seems to be running away from claiming any involvement with the destruction of the tapes. In the absence of the tapes people will assume the worst. If individual CIA operatives eventually face criminal charges or civil suits they may actually wish they had saved the tapes.

Peru's Ex-President Gets 6 Years for Illicit Search Fuji gets 6 years in prison for ordering an illegal search of the home of Mrs. Montesinos, the wife of Peru's corrupt spy chief. This is an extraordinarily harsh punishment for illegal search in Peru, more than the prosecutor requested. Fuji ordered the search in a crisis, as the extent of Montesino's corruption became publicly known and Fuji's government was in peril. Fuji should have been searching Montesinos' house every day for twelve years, the problem is not that he finally did it, it's that he waited too long. He wasn't worried about Montesinos' corruption, only about retrieving the evidence of his own complicity. If the harsh sentence reflects judicial recognition of Fuji's corrupt, self-protective motives in ordering the search, kudos. If the harsh sentence is to take the heat off conviction and sentencing in the other, more serious, charges Fuji faces - then the Peruvian judicial system is playing politics as usual. The illegal search was a discrete charge involving a very limited number of people. Other charges against Fuji will implicate individuals who are still active leaders in the Peruvian government, military and business communities. Watch out, the court may be using the illegal search case as the first step in a plan to give the major charges short shrift and keep some of Peru's current leading lights out of the trial headlines.

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