Torture: An "unwise decision."

Until Tuesday night, I was not sure of the provenance of this horrifying photograph.  I knew that it must have come from some official source -- surely no one without the highest of security clearances could have been present at this most disgusting of spectacles.  And thus having been shot by someone in my employ -- in yours -- it was ours to repost.  

On Tuesday, while watching the first half of PBS’s incredible documentary, Bush’s War, I saw several similar photographs -- no doubt shot on the same flight.  And then I knew.  This photo was taken during one of the first (or perhaps the very first) of the flights transporting supposed terrorists to Guantanamo Bay.

The flag hanging over the heads of the hooded and shackled is the same flag that draped the coffins of my Dad and of both of my grandfathers.  It made me sick to see it hanging in this photograph.  When my Mom saw the similar photographs on television on Tuesday night, she said: "I cannot imagine what your Dad would have thought of this."  And she had to leave the room.

But there is one reason I was glad to see that this photograph -- and other similar photographs -- have been preserved: because so much other evidence of the despicable and illegal behavior of our government has apparently been destroyed.

Why?  Because the CIA apparently decided that it was appropriate for them to substitute their judgment for that of a federal judge -- the sort of behavior that, had it been committed by an ordinary person or lawyer, would have been met with a citation for contempt (at the very least).

As today’s New York Times reports:

When officers from the Central Intelligence Agency destroyed hundreds of hours of videotapes documenting harsh interrogations in 2005, they may have believed they were freeing the government and themselves from potentially serious legal trouble.

(snip)

"They thought they were saving themselves from legal scrutiny, as well as possible danger from Al Qaeda if the tapes became public," said Frederick P. Hitz, a former C.I.A. officer and the agency’s inspector general from 1990 to 1998, speaking of agency officials who favored eliminating the tapes. "Unknowingly, perhaps, they may have created even more problems for themselves."

Well, we can certainly hope so. Destroying evidence is usually not regarded by the courts as a good thing.  That is one reason why we have courts and the "rule of law" and the usual inferences that can be drawn from what lawyers call "spoliation" (destruction of evidence).  In many cases, when evidence is destroyed, judges will instruct juries that they can "infer" that the evidence would have been damaging to the other side. Even worse: these people were acting for us, in our names.  And engaging in behavior that even they realized, as long as three years ago, was wrong.  And rather than come forward, they decided to "free the government" and themselves from "serious legal trouble."  

In a suit brought by Hani Abdullah, a Yemeni prisoner at Guantánamo Bay, Cuba, a federal judge has raised the possibility that, by destroying the tapes, the C.I.A. violated a court order to preserve all evidence relevant to the prisoner.

(snip)

Plans for the possible prosecution of another prisoner, Ali al-Marri, who has been held since 2003 in a naval brig in Charleston, S.C., could be in jeopardy after the Pentagon recently revealed that it had destroyed some tapes of Mr. Marri’s interrogation. Other tapes showing rough treatment of Mr. Marri, which were discovered in a Pentagon review ordered after the C.I.A. revelations and have been preserved, could prove embarrassing if presented at his trial.

Long ago and far away, I made the mistake of sending a story I had written to my friend and mentor, Gloria Emerson, who was one of the bravest Vietnam correspondents and wrote the heartbreaking and authentic Winners & Losers. If you have not read this book, you absolutely must.

The story I sent her was about a KKK "rally" (and I use the word loosely, as the "rally" involved about four people standing around in dirty hoods) at the site where a Buddhist monastery was to be built in Grand Prairie, Texas.  The locals were not thrilled with the idea; the Klan showed up.  Because the smarmy group of protesters had been so small, and because nothing untoward had happened, I had described the event as "peaceful."  

Gloria was incensed and called me on my nonsense.  She wrote something like this: "The Klan showing up is never ‘peaceful.’  Good God, what are they feeding you down there?  You need to stop this immediately."

As always, she was right.

I wonder what she would have said about today's story, in which the reporter said, without attribution, that the exposition of torture by Americans "could prove embarrassing."  Or what she would have said about this:

[A motion in the Zacharias Moussaoui case seeking records of interrogation videotapes], among other legal challenges, has raised questions about a statement in December by the C.I.A. director, Gen. Michael V. Hayden, that he understood the tapes were destroyed only after it was determined that they were "not relevant to any internal, legislative, or judicial inquiries."

Who made this decision about "relevance"?  Did anyone ask?  Isn’t this the function of our federal court system?

All of the court challenges are playing out against the backdrop of the criminal investigation, led by a veteran prosecutor, John H. Durham, who is examining whether destruction of the tapes was an illegal obstruction of justice. A separate investigation by the House Intelligence Committee will soon begin interviewing officials from the White House and the C.I.A., possibly under subpoena, about their roles in the destruction of the tapes.

(snip)

Mr. Hitz, the former C.I.A. inspector general, said the government’s legal woes could be traced to what he believed was an unwise decision to use harsh physical pressure during interrogations.

Those techniques had Justice Department approval. But a public backlash set in, which was a factor in the C.I.A.’s decision to destroy the tapes in late 2005.

An "unwise decision to use harsh physical pressure during interrogations."  Public backlash against Americans engaging in torture --the new justification for defying the orders of a federal judge.  What have we come to?

One only needs to look at the covered face of the American soldier on the right hand corner of the photograph to know.