Sunday, December 23, 2007


By William Fisher

A former U.S. Department of Justice ethics adviser who came to prominence as a whistleblower after she objected to the government's treatment of John Walker Lindh -- the "American Taliban" captured during the 2001 invasion of Afghanistan – has joined leading members of the U.S. legal community in calling on Congress to investigate the destruction of tape recordings of interrogations carried out by the Central Intelligence Agency.

Jesselyn Radack told a news teleconference last week that the destroyed tapes are “part of a pattern.” She said, “There are some 5 million missing White House e-mails. No one knows where the hit lists are from the U.S. Attorney massacre. And now the CIA interrogation videotapes have been erased. This is criminal.”

She added, “Remember when the Justice Department prosecuted Enron and Arthur Anderson for destruction of evidence and obstruction of justice? Now the Justice Department is trying to block congressional oversight and legal proceedings involving this latest scandal.”

Radack’s comments came during the launch of a new campaign, “American Lawyers Defending the Constitution.” The effort is backed by a statement signed by more than 1,300 lawyers and law students around the country, including former New York governor Mario Cuomo, former Reagan administration official Bruce Fein, leaders of legal organizations and more than 100 law professors in the U.S.

Their statement calls on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to hold wide-ranging hearings to investigate “unconstitutional and potentially criminal activity by the Bush Administration.”

The “TapeGate” furor erupted after the New York Times revealed in early December that the CIA in 2005 had destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, “a step it took in the midst of Congressional and legal scrutiny about its secret detention program, according to current and former government officials.” An announcement was subsequently made by the CIA.

The videotapes showed agency operatives in 2002 subjecting terrorism suspects — including Abu Zubaydah, the first detainee in CIA custody — to severe interrogation techniques. In a message to his staff, CIA Director Gen. Michael V. Hayden reportedly said the tapes were destroyed in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks. He also said the tapes no longer had intelligence value.

The destruction of the tapes has raised questions about whether CIA officials withheld information from Congress, the courts and the Sept. 11 commission about aspects of the program.

The CIA program that included the detention and interrogation of terrorism suspects began after the capture of Mr. Zubaydah in March 2002. The CIA has said that the Justice Department (DOJ) and other elements of the executive branch reviewed and approved the use of a set of harsh techniques before they were used on any prisoners, and that the DOJ issued a classified legal opinion in August 2002 that provided explicit authorization for their use.

Other participants on the telephone press conference included Michael Ratner, president of the Center for Constitutional Rights, a legal advocacy group, and Marjorie Cohn, president of the 6,000-member National Lawyers Guild.

Ratner, whose organization has played a major role in providing defense lawyers for detainees in Guantanamo Bay and elsewhere, underscored the importance of congressional action. He said, “For far too long Congress has been the handmaiden of the Bush administration’s undermining and subversion of basic constitutional rights. The right to be free from torture; warrantless wiretapping; jailing without habeas corpus; and disappearances into secret sites. Principles going back to the Magna Carta are at stake.”

He called on Congress to “do its job: defend the Constitution from its enemies. Its enemies are the Bush administration.”

Ratner said, “Just announcing that investigations will be held and subpoenas will be issued is terribly insufficient unless Congress is willing to enforce the subpoenas by issuing contempt citations. Congress has a constitutional duty to oversee the activities of the executive branch and our entire system of government is threatened when Congress simply folds before an obstinate executive.”

Cohn, author of the recently published book, “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law”, told us, “From the illegal war in Iraq to the illegal torture of prisoners in U.S. custody to the illegal destruction of evidence by the CIA, the Bush administration has become an institution of lawbreakers. Congress must hold hearings to investigate this lawbreaking, and should authorize the appointment of an independent prosecutor since Michael Mukasey cannot be counted to conduct an impartial investigation.”

Radack rose to prominence as a major whistleblower in the John Walker Lindh case. In the course of Lindh's criminal prosecution, the court ordered all documents associated with his interrogation to be turned over. After some documents were turned over, Radack was asked about the existence of more documents. At that time, she looked through the files and discovered that the bulk of her work was missing and had not been turned over. Radack was able to reconstruct much of her work, and informed her supervisor that her department had not complied with the court order.
She was forced to resign before the documents were turned over. A criminal investigation into Radack’s actions was eventually closed with no charges, but her case was referred to the state bar of Maryland, which eventually cleared her of all wrongdoing. She has never been called to testify before Congress.

The Department of Justice (DOJ) said it had no knowledge that Lindh was represented by a lawyer prior to his interrogation, but this position appears to be contradicted by material in Radack's files.

Radack told the news conference, “My e-mails documented my advice against interrogating Lindh without a lawyer, and concluded that the FBI committed an ethics violation when it did so anyway. Both the CIA videotapes and my e-mails were destroyed, in part, because officials were concerned that they documented controversial interrogation methods that could put agency officials in legal jeopardy.”

In a related development, one of America’s leading constitutional scholars said White House involvement in the CIA's decision to destroy videotapes documenting severe interrogation techniques of suspected terrorists could constitute as many as six crimes.

Jonathan Turley, a professor at George Washington University law school in Washington appeared on CNN to discuss a report by the New York Times that four White House attorneys, including then-White House counsels Alberto Gonzales and Harriet Miers, participated in discussions with the CIA about whether or not the tapes should be destroyed.

Turley said, "There are at least six identifiable crimes here, from obstruction of justice to obstruction of Congress, perjury, conspiracy, false statements, and what is often forgotten: the crime of torturing suspects.

He added, "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."

The American Lawyers Defending the Constitution statement, along with the list of 80 original signers, is available at .

The American Freedom Campaign (AFC) is a joint project of AFC, the Center for Constitutional Rights, National Lawyers Guild, the Alliance for Justice, the Equal Justice Society, and the American Freedom Agenda.