Remember the 92 torture tapes destroyed by Bush's CIA? The statute of limitations expires today.

As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.

bmaz
emptywheel.com and firedoglake.com

If there is any worthwhile or meaningful response, I will advise.

Mr. Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Mr. John Durham
First Assistant United States Attorney
District of Connecticut
450 Main Street
Room 328
Hartford, CT 06103

Ms. Tracy Schmaler
Deputy Director
Office of Public Affairs
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Mr. Dean Boyd
Public Affairs Specialist
Office of Public Affairs
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Attorney General Holder,

The five-year statute of limitations, within which to initiate a prosecution against a person who intentionally destroyed CIA tape recordings of individuals who were being tortured by U.S. officials while in U.S. custody, expires on Monday, November 8, 2010. As a retired law professor, former criminal defense attorney, and defender of the Constitution, Bill of Rights, and the Rule of Law for more than thirty years, I am extremely concerned by the absence of an indictment or complaint charging anyone with destroying the 92 missing tapes and the absence of any official explanation regarding why.

I should not have to remind or explain to anyone at the Department of Justice that “looking forward, not backward,” is a political policy and not a rule of law. I am not alone when I characterize the policy as an intentional obstruction of justice by concealing evidence of a crime, which is the same crime, by the way, that was committed by the person or persons who destroyed the tapes. As you well know, obstruction of justice and conspiracy to obstruct justice are federal felonies and impeachable offenses.

The Department of Justice’s silence is deafening. I cannot think of any reason why the department has not indicted anyone yet or officially announced why it decided against seeking an indictment. Under the circumstances, I cannot imagine that a grand jury would have refused to return an indictment, so what is going on?

A little over 60 years ago, Justice Jackson of the United States Supreme Court prosecuted and convicted German officials for war crimes, including torture, and crimes against humanity. He did not “look forward, not backward,” to avoid his responsibility to uphold the rule of law. He accepted the responsibility and so should the Department of Justice.

Sincerely,

____________________________
Frederick D. Leatherman, Jr.
Professor of Law

WASHINGTON — Central Intelligence Agency officials will not face criminal charges for the destruction of dozens of videotapes depicting the brutal interrogation of terrorism suspects, the Justice Department said Tuesday.

After a closely watched investigation of nearly three years, the decision by a special federal prosecutor is the latest example of Justice Department officials’ declining to seek criminal penalties for some of the controversial episodes in the C.I.A.’s now defunct detention and interrogation program.

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