The CIA Ate My Homework
Federal prosecutors say they are not to blame for misleading federal judges about the existence of interrogation audio/videotapes that might have been relevant in the trial of the once-upon-a-time "20th hijacker" Zacarias Moussaoui. The Justice Department says in a letter made public yesterday that it only just learned -- from the CIA -- that there are at least three recordings of interrogations of terrorist suspects. At the time of the Moussaoui trial, federal prosecutors were told -- by the CIA -- that there were no such recordings. You can read the feds' heavily redacted letter here.
You know what? I completely believe the government lawyers on this one. And I think the judges will, too. It's very likely that the CIA didn't tell the FBI about the tapes because the CIA knew that the FBI would, in turn, have had to disclose that important fact to the trial judge. And the CIA didn't want U.S. District Judge Leonie M. Brinkema potentially opening the tapes to the scrutiny of the world.
It happens all the time: one hand of the government not telling the other hand where the truth lies. Often, the mistake is inadvertent. Sometimes, it's intentional. People who fight the federal government -- whether in a criminal case or a civil one -- soon discover that it is no monolith. And, because of the nature of the bureaucracy, the bigger the case the more complicated the handling of evidence and information.
Decades ago, I was involved as a lawyer in a civil lawsuit involving a federal agency. There had been a federal investigation into the matter as well, so another agency had possession of certain information that might have been relevant to the case. The battles between the parties to the case were hardly as fierce or as petty as the battles between the federal fiefdoms. And that was before Sept. 11, when the stakes weren't nearly so high.
They were high in the Moussaoui case. If Judge Brinkema knew about the existence of the tapes before the trial, she likely would have forced the feds to allow Moussaoui's lawyers to use those tapes in his defense. That, in turn, would have forced the feds to appeal her ruling to the conservative 4th U.S. Circuit Court of Appeals, which almost certainly would have overruled Judge Brinkema and allowed the government to protect the tapes on national security grounds. That would have led to an appeal to the U.S. Supreme Court, which might or might not have taken the case. Win or lose, the CIA wanted none of this. So it forgot to honestly answer the intra-agency inquiry from the Justice Department.
If you don't buy this theory, you are left to argue that the Justice Department knew about the tapes but lied to the courts anyway. I just don't see it. Remember, these prosecutors promptly (and quite rightly) squealed on Carla Martin, the government witness who broke the judge's rules by sharing trial information with other witnesses. And it was the CIA, not the FBI, that offered up the sworn affidavits back then promising that the tapes existed.
Oh, and the bottom line? We'll never see those tapes. And they wouldn't have made a lick of difference in the zany Moussaoui case.
Please email us to report offensive comments.
Posted by: DC | November 14, 2007 11:53 AM
Posted by: whoo_whoo | November 14, 2007 12:05 PM
Posted by: Spineless | November 14, 2007 03:33 PM
Posted by: | November 14, 2007 05:58 PM
Posted by: okbyme | November 14, 2007 07:37 PM
Posted by: wilfordbrimley | November 14, 2007 11:13 PM
Posted by: CRix | November 15, 2007 10:06 AM
Posted by: LawBlogger | November 16, 2007 06:19 AM
Posted by: Robert James | November 16, 2007 07:14 AM
Posted by: Robert james | November 16, 2007 07:20 AM
Posted by: DC | November 19, 2007 05:16 PM
Posted by: Phillip | November 27, 2007 12:32 PM
Posted by: Otto | December 4, 2007 05:01 AM
Posted by: Brian Sullivan | December 6, 2007 09:53 AM
Posted by: ekfimqabu wegrocxz | December 20, 2007 11:26 AM
Posted by: flwyt kqiga | December 20, 2007 11:27 AM