Tuesday, May 31, 2016

Destruction of Evidence at the 9/11 Military Commission: A Quick Theory

The defense motion in the 9/11 Military Commission case objecting to the destruction of evidence in violation of a preservation order based on a secret order from Judge Pohl (and requesting the Judge's recusal as a result) was released in redacted form today (see Spencer Ackerman's coverage here).

What was destroyed and why? Those answers are redacted, but here's a theory based on nothing but my own speculation.

Ackerman and Carol Rosenberg point to Judge Pohl's December 2013 order to preserve CIA black sites abroad as the most likely relevant preservation order.  If that is true, the redacted defense motion released today says that about six months later there were secret ex parte communications between the government and Judge Pohl as a result of which Judge Pohl "authorized the government to destroy the evidence in question."

One possibility is that the "evidence in question" was specifically the remnants of the CIA black site in Poland at Stare Kiejkuty and the "why" was the release (or pending release) of two European Court of Human Rights decisions -- seven months later in July 2014 -- in Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland that found Poland violated the European Convention on Human Rights for failing to carry out a real investigation into the torture of detainees at the CIA black site, thus obligating them to undertake one that might finally include collecting forensic evidence from that black site.

To flesh the theory out a bit, if six months after Judge Pohl's Dec. 2013 preservation order -- in about June 2014 -- the U.S. government acquired intelligence that the European Court of Human Rights would soon find Poland in violation of its legal obligations under the European Convention to conduct an effective investigation into the CIA black site; and if the U.S. knew that Poland could therefore no longer play along with the U.S. in delaying and obstructing an internal Polish criminal "investigation" -- on the back of which Poland had refused to provide evidence to the Court -- that had been going nowhere for years; it would not be a stretch that the U.S. would go to Judge Pohl ex parte and say that the CIA needed to destroy the remnants of the Polish black site because failing to do so could result in evidence falling into the hands of uncleared Polish investigators creating a U.S. national security issue, potentially providing actual confirmation of the black site which the CIA had studiously avoided, and creating political and diplomatic problems for U.S. relations with the Polish government to whom the U.S. had made promises of protection.

Moreover, the prosecutors could have argued for the ex parte nature of the discussion by stressing the sensitive nature of intelligence about the result of a pending court decision and the foreign affairs concerns that could not be shared with the defense.

Just a theory.  Katherine Hawkins at the Constitution Project also had an interesting theory that it was a black site in Afghanistan.
Apologies if anyone has already advanced the ECHR theory and I missed it and I will edit the name of this post to "A Quick, Discredited Theory" if and when it is shown to be wrong.

UPDATED to fix a typo.

Friday, May 20, 2016

The SSCI Report & the Federal Records Act

I have a new piece up at Just Security entitled "Why Federal Agencies Must Still Preserve (and Should Finally Read) the SSCI Torture Report" that digs down on the legal status of the SSCI Report under the federal records laws.  It begins:
This week’s news that the CIA’s Office of Inspector General destroyed two copies of the SSCI Report on the CIA’s Detention and Interrogation Program comes on the heels of last week’s DC Circuit decision in ACLU v. CIA that the SSCI Report is not an “agency record” subject to the Freedom of Information Act (FOIA). The ACLU v. CIA decision is another setback for transparency over torture and means that a review of the complete 6,700-page Report for public release will not come through FOIA anytime soon.
The DC Circuit’s decision does not mean, however, that agencies can destroy their copies of the SSCI Report or return them to the SSCI, as Sen. Richard Burr demanded earlier (and has apparently repeated since the DC Circuit’s decision). Agencies should still have to preserve their copies of the SSCI Report as agency “records” under federal recordkeeping laws, which should free them to finally open the Report, read it, and learn the full history of our use of torture in order to never repeat it – precisely what the SSCI intended in the first place. Unfortunately, the official empowered to make a determination binding on all agencies that the Report is a “record” – the Archivist of the United States – has thus far been reluctant to enter the fray despite demands from Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.), as well as a group of NGOs. Perhaps the realization that the lack of a mandate from the Archivist could have already contributed to the CIA’s “inadvertent” destruction of two copies of the Report – and the DC Circuit’s FOIA decision –– will finally persuade the Archivist that he must act to protect agency copies of the Report.
Previous coverage of the status of the SSCI Report on this blog is here and previous coverage of the Archivist's authority to determine record status is here.