Those lawyers might even be liable under the same Sarbanes-Oxley provisions if they failed to give advice or take steps to preserve the tapes in advance of future investigations. Those tapes, unlike the child-porn case, were not in themselves inherently illegal contraband, but rather evidence of arguably criminal activity in which government agencies were likely to have a substantial official interest. Hence, the torture-tapes case would seem to be considerably easier to prosecute than that of the church’s lawyer. It does not require advanced legal education to recognize that the controversial interrogation techniques might soon be the subject of inquiry.
Such an investigation is not just hypothetical: we recently learned that the 9/11 Commission sought all evidence from the CIA, which would have included interrogation videos. If they had been available, the videotapes would have been important evidence in congressional hearings, independent-counsel investigations, or legal cases. In one case in which the tapes would likely prove to be invaluable evidence, Guantánamo detainee Majid Khan has claimed that the CIA tortured him in its network of secret overseas prisons. A CIA official told the court that if Khan’s lawsuit went forward and he was able to describe how the CIA tortured him, “it would permit terrorist organizations to adapt their training to counter the tactics that [the] CIA can employ in interrogations.” But administration lawyers might also have been concerned that the tapes, if shown, would prove that the government was abusing its detainees — possibly amounting to war crimes such as torture. In any event, the tapes were not produced for the court.
After the tape-destruction story leaked, Attorney General Michael Mukasey appointed John H. Durham, a career federal prosecutor, to lead the obstruction investigation. Years earlier, Durham had investigated the Boston office of the FBI for its involvement with James “Whitey” Bulger and other mobsters in a variety of corrupt activities. That prosecution resulted in the conviction and incarceration of former FBI agent and mob “handler” John Connolly. Durham is reputed to be a fairly hard-nosed and relentless prosecutor. However, local newsman and WBUR radio host David Boeri has questioned Durham’s willingness to push the sensitive Boston investigation to the bitter end, noting that Durham never issued publicly a promised wrap-up report on the full extent of the Boston FBI mess.
Even so, it is likely that Durham will end up indicting at least one or more of the actors in the torture-tapes matter for obstruction, probably under the Sarbanes-Oxley Act. As it turns out, Durham was plucked by Mukasey from, of all places, the United States Attorney’s Connecticut office, where he has long been in charge of major felony prosecutions. Durham must have been aware, if not very familiar with, Sarbanes-Oxley’s obstruction provisions through his office’s prosecution of Russell. If a lawyer arguably doing his duty to protect his client could be indicted for destroying contraband materials such as child pornography, then surely the behavior of the Bush-administration lawyers and the CIA operatives who played any role in the destruction of the tapes will be called on the Sarbanes-Oxley carpet. What’s good for the goose, after all, is supposed to be good for the gander.
Stay tuned: we will soon see whether the Department of Justice’s standards imposed on members of the private bar will be applied, equally, to administration lawyers and CIA operatives.
Harvey Silverglate is a Cambridge-based criminal-defense and civil-liberties lawyer and writer. He is the author of a forthcoming book, tentatively titled Three Felonies a Day, concerning federal prosecutions brought on the basis of vague statutes.
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