Cheating Justice (23 page)

These are not trivial matters. The Watergate investigations of President Nixon were rocked by two key instances of evidence destruction. One was the “18½-minute gap”—a portion of a taped conversation between President Nixon and his aide H. R. Haldeman that was erased. The second involved a White House safe that was emptied and the contents burned. Both were part of the overall Watergate cover-up and stand as enduring symbols of criminality by a president and co-conspirators.

Hiding or mutilating federal records may be considered a crime under federal law in some cases. For example, under U.S. Code Title 18, Section 2071, it is a federal crime if anyone “willfully and unlawfully . . . mutilates, obliterates, or destroys any record . . . paper, document or other thing . . . filed or deposited in any public office, or with . . . any public officer.”
22
Violation of the law carries a prison term of up to three years and a fine. Other laws, such as obstruction of justice, might come into play as well.

Among the missing records are videotapes of interrogations of detainees that were destroyed by the CIA. Some of the tapes were of interrogations of Abu Zubaydah, who was subjected to waterboarding and other cruel and inhuman interrogation techniques, as noted by the
New York Times.
The tapes could have shown criminal liability. The CIA destroyed ninety-two tapes in 2005, even though a federal court, ruling in a Freedom of Information case brought by the ACLU, had ordered the agency to retain all the tapes. “The tapes were destroyed in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks,” according to the
Times.
In 2008, Assistant U.S. Attorney John H. Durham was assigned to investigate the tape destruction, but did not file any charges.
23
The Justice Department should require Durham to report findings from his investigation.

In addition, it's imperative that courts apply sanctions when evidence is demolished. “The C.I.A.'s decision to destroy the tapes—rather than submit them to the judge for a decision on whether to order their public release—was a serious affront to the court and the rule of law,” wrote the
New York Times
editors on January 25, 2011.
24

Right after the Durham decision, the National Archives renewed a 2007 request to the CIA seeking an explanation about why the tapes were
destroyed, reported Michael Isikoff for NBC News.
25
Under the Federal Records Act, “no federal records may be destroyed” without prior approval of the National Archives and Records Administration—and the archives obviously had not approved the destruction of the tapes.
26
While the power of the National Archives to enforce the law is limited, it could call for the CIA inspector general to do a complete investigation, or it could hold public hearings on the videotape destruction and create a public record of their contents by verbal testimony. In the future, tougher remedies, including personal fines, should be enacted to help people think more seriously about the possible consequences before destroying similar federal records.

E-mails from the Bush administration during critical time periods are also missing. One batch includes millions of White House e-mails that Special Prosecutor Patrick Fitzgerald discovered were missing in his investigation of the “outing” of CIA agent Valerie Plame. In connection with his 2006 prosecution of White House aide I. Lewis Libby, Fitzgerald revealed to the court that there might be e-mails missing from both the vice president's office and the executive office, as described in a 2010 report by Citizens for Responsibility and Ethics in Washington (CREW), “The Untold Story of the Bush White House Emails.”

“The Bush White House had little or no interest in preserving emails that likely would cast a less than favorable light on its actions,” wrote CREW. Along with the National Security Archives, CREW sued the Bush White House to recover the missing e-mails. The Obama White House eventually agreed to restore ninety-four days of Bush e-mails and to turn them over to the National Archives so it could determine public accessibility under existing laws.

Overall, the Bush White House had a very poor system for backing up and retrieving data. Even though the National Archives, which was responsible for the preservation of presidential papers, pointed out problems, nothing was done to correct them, CREW said.
27
Because of this, Congress should pass legislation to permit the National Archives to install and implement a proper electronic data retrieval system for the White House. In that way, future presidents will not be able to thwart accountability by hiding or destroying the public record.

The third area of missing records concerns John Yoo's e-mails during the key period in which he wrote the torture memos. The e-mails were reported “deleted” and supposedly “non-recoverable,” according to the
Office of Professional Responsibility in an investigative report written on July 29, 2009.
28
In February 2010, the National Archives asked the Justice Department to explain the deletions of Yoo's e-mails, and some, but not all, were subsequently recovered, according to CREW.
29

To resolve the matter, the inspector general for the Justice Department should also begin a full investigation to determine what happened to the e-mails and if any misconduct was involved. Recovering all of Yoo's e-mails might show whether the White House participated directly in writing the memos on enhanced interrogation techniques.

The government should take whatever steps are possible to find and release missing documents and e-mails. Missing Bush records, or some of them, might be retained in computer files, archives, electronic backup systems, or backrooms. Thorough and sophisticated searches for them might yield results. Only with records accountability can the public begin to understand firsthand the truth about the “decision points” that led to war, torture, cover-ups, perjury, and other misconduct by President Bush and his team.

A president probably cannot be prosecuted while in office—impeachment is the only remedy during that time period. What has not been tested is when the statute of limitations would begin to count down for presidents—from the time of the commission of the crime, or the last act in a conspiracy? Or does it only begin on the date that the president leaves office?

For the gravest crimes, a ticking clock should not govern whether or not accountability is applied. A change in the federal statute of limitations laws could adjust this. Congress should pass a law holding the statutes of limitations in abeyance while the president is in office, and extending it for another five to eight years after tenure in office has ended. The statutes of limitations should be abolished for certain crimes, such as illegal surveillance, torture, war crimes, and lying to embroil the country in war, when committed by presidents, vice presidents, and other top officials of the government. These officials should not feel that they can be free of the law simply because they successfully block prosecutions while they are in office, and then claim that the time has expired when they are out.

Quite simply, waiting out the statutory time period and writing a memoir
to confess—or celebrate—law breaking is unacceptable; top officials must be held accountable for grave crimes whenever they are discovered.

Civil lawsuits offer a routine but powerful means of accountability. When people whose constitutional rights have been violated by the government sue those responsible, the lawsuits serve important functions. They may secure financial and other redress for the victim. They also reveal governmental misconduct, and public attention may force reform. And they educate the public about government misbehavior, in this way playing a vital role in democracy.

A number of civil lawsuits filed in American courts have attempted to seek accountability from the Bush administration, particularly on allegations of torture and illegal surveillance. Other civil litigation matters have addressed telecom collusion on wiretapping, freedom of information, conditions of detention, retaliation against whistleblowers, and the constitutionality of new laws or executive orders by the White House. But with some rare exceptions, cases that would shed light on accountability for the stark breach of the law by the president, vice president, and others—particularly on war crimes, torture, and illegal surveillance—haven't gotten very far in the United States. In fact, legal actions by torture victims have gotten nowhere. Most have been stopped dead in their tracks at the earliest stages of the proceedings, especially because of the Bush administration's constant invocation of the “state secrets” privilege, which I describe in the next section. Courts have retreated behind the skirts of “national security”—even though the claim of national security may be bogus. During Watergate, President Nixon repeatedly raised fake claims of national security to cover up criminal misconduct.

But the court deference to national security claims in recent years has been exceptionally high, even in situations where the claim seems invalid because the “secret” has become public. For example, a claim that the CIA's program to turn people over to other countries for torture is a state secret is peculiar, at best; it is especially odd when the program has been documented in books, films, television programs, and government reports that have become public, and even in lawsuits filed in other nations. As a result of the extremely expansive use of the state secrets doctrine, President Bush, Vice President Cheney, and others have managed to escape facing the accountability
that comes from depositions, document discovery, testimony, and trials, and civil litigation, for the most part, has been shut down.

And yet, lawsuits seeking information about missing e-mail and unreleased documents, sometimes incident to another case, have succeeded in bringing forward information that can help the public piece together some of the criminal actions of the Bush administration. Other lawsuits have provided insight into government practices, such as extraordinary rendition to black-site prisons in other countries.
Arar v. Ashcroft
was filed by the Center for Constitutional Rights on behalf of Maher Arar, a Syrian-born engineer and Canadian citizen who was traveling back to Canada from a trip to Tunisia in September 2002 when he landed at JFK Airport to change planes.
30
Based on a faulty tip from the Canadian police, U.S. officials detained him. After being questioned about ties to al Qaeda, he was forcibly transported to Syria.

Arar's treatment was described later in an appellate court opinion: “During his first twelve days in Syrian detention, Arar was interrogated for 18 hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a 2-inch-thick electric cable. His captors also used their fists to beat him on his stomach, his face and the back of his neck. He was subjected to excruciating pain. . . . He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a ‘spine breaking chair, hung upside down in a tire for beatings and subjected to electric shocks.'”
31
He was finally released with no charges.

Arar's lawsuit, brought against Attorney General John Ashcroft and other Bush administration officials in the federal court for the eastern district of New York in 2004, was dismissed and the Second Circuit Court of Appeals upheld the dismissal in 2008 and reaffirmed that decision in 2009. The appellate court said that the case could “affect diplomacy, foreign policy and the security of the nation” and that “providing a damages remedy” against government officials would enmesh the courts in assessing the rationale of their policies, “matters that directly affect significant diplomatic and national security concerns.”
32

In a fierce dissent, Judge Barrington D. Parker confronted the majority, saying: “Our role is to defend the Constitution. We do this by affording redress when government officials violate the law, even when national security is invoked as the justification.”
33
In June 2010, the Supreme Court refused
to hear the case, letting the appeals court decision stand. Fortunately, Arar has had better treatment in Canada, which I describe in
chapter 5
.

Another case,
El-Masri v. Tenet
, involved Khaled El-Masri, a German citizen of Lebanese heritage who brought a lawsuit in federal district court in Virginia in 2006 against CIA director George Tenet and U.S. officials for his detention and mistreatment.
34
In late 2003, while traveling in Macedonia, he was removed from a tourist bus and turned over to CIA agents, who sent him to a prison in Afghanistan, where he was beaten and tortured. When CIA officials realized that they had kidnapped the wrong person, he was flown to Albania and unceremoniously dumped on a roadside in a remote part of the country.
35
According to Chancellor Angela Merkel of Germany, Secretary of State Condoleezza Rice privately admitted to her that the United States made a mistake in kidnapping El-Masri, according to a report by the BBC on December 7, 2005.
36

In his lawsuit, El-Masri asked for damages and an apology. Claiming that national security information would have to be revealed, the district court dismissed the suit on grounds of state secrets in May 2006. In 2007, the ruling was upheld on appeal and the Supreme Court declined to hear the case. El-Masri was left with no legal remedy in the United States.

El-Masri wrote an essay, “I Am Not a State Secret,” published in the
Los Angeles Times
on March 3, 2007, after the Supreme Court ended his quest. He wrote: