The Bush administration is concealing evidence from the courts

Remember Jose Padilla? You should. What has happened to him is the clearest single example we have even yet of the tyranny the Bush administration is attempting to bring down on America as a whole.

Let me just remind you. Padilla is a U.S. Citizen. He was arrested on U.S. soil. He was then declared to be an "Enemy combatant", a term which does not appear in any real lawbooks, and handed over to the military to be imprisoned without any charges, with no access to a lawyer, and with no opportunity to request Habeas Corpus. OK. So maybe you remember habeas corpus. It dates from the 1215 magna Carta and since that time has protected the individual freedoms of individuals in the English-speaking nations against arbitrary state action. It seems that Bush, Cheney, and the other right-wing authoritarian denizens of the White House do not like for American citizens to have that protection. So some lawyer in the White House (John Yoo? Harriet Meirs? Is Alberto Gonzales able to understand English and the law well enough to have dreamed this travesty up?) came up with the term "Enemy Combatant."

Well after over three years in solitary confinement with no charges or access to the courts, his case was to be taken to the Supreme Court (by attorneys who had never met him) and the Bush administration folded. They charged him with crimes, removed him from imprisonment by the military, allowed a real case to be brought against him, and since the basis for the appeal to the Supreme Court was no longer active, the Appeal was determined to be moot and not acted on.

But the story is not over. Jose Padilla's lawyers have claimed that because Padilla was kept in solitary for so long and was tortured, the charges against him are not valid. Apparently he claims he was especially tortured at his last interrogation session. The government claims that he was not tortured and they have the video disks of his interrogation to prove it.

Here we get the most telling admission yet from the Bush administration. Let Glenn Greenwald tell the story from here:

[T]he judge -- Bush-appointee and former federal prosecutor Marcia Cooke, who has a reputation for extreme objectivity -- has ordered the Bush administration to turn over all tapes made of its interrogations of Padilla, as part of Padilla's motion to dismiss the indictment on the ground that he was, in essence, tortured while being held incommunicado for 3 1/2 years. In particular, Padilla's lawyers are most interested in the last interrogation session to which he was subjected -- in March, 2004 -- while still held as an "enemy combatant."

Ten days ago, Newsweek's Michael Isikoff and Mark Hosenball reported that the administration had produced all of the DVDs it claimed it possessed, but the March, 2004 interrogation video was not among them. The government began claiming that the video "mysteriously disappeared." Bush administration lawyers simply insist that they are "no longer able to locate the DVD."

Associated Press now furthers the story by reporting that Bush lawyers seem to have committed themselves to the position that the video will not be found: "'I don't know what happened to it,' Pentagon attorney James Schmidli said during a recent court hearing." Judge Cooke is reacting exactly how she should -- with utter disbelief in the veracity of this claim:

U.S. District Judge Marcia Cooke was incredulous that anything connected to such a high-profile defendant could be lost.

"Do you understand how it might be difficult for me to understand that a tape related to this particular individual just got mislaid?" Cooke told prosecutors at a hearing last month.

It is difficult to put into words how extraordinary this is. As the Newsweek article reported:

The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government's highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case.

"This is the kind of thing you hear when you're litigating cases in Egypt or Morocco or Karachi," said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government's treatment of Padilla. "It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused."

Then again, credible claims by a citizen that he was tortured while held for years without charges by his own government also used to be the kind of thing "you hear when you're litigating cases in Egypt or Morocco or Karachi," but is now what characterizes the United States.

The March, 2004 video is unlikely the only evidence which the Bush administration is concealing despite being ordered to produce. As the Associated Press reported:

But [Padilla lawyer Anthony] Natale said there may be more tapes missing and other interrogations that were not recorded.

Defense lawyers say brig logs indicate that there were 72 hours of Padilla interviews that either were not taped or for which tapes may be missing. Natale said it seems unlikely that any interrogation session with Padilla was not videotaped "when he was videoed taking showers."

Of course, even if administration's patently unbelievable claim were true -- namely, that it did "lose" the video of its interrogation of this Extremely Dangerous International Terrorist -- that would, by itself, evidence a reckless ineptitude with American national security so grave that it ought to be a scandal by itself. But the likelihood that the key interrogation video with regard to Padilla's torture claims was simply "lost" is virtually non-existent. Destruction of relevant evidence in any litigation is grounds for dismissal of the case (or defense) of the party engaged in that behavior.

But where, as here, the issues extend far beyond the singular proceeding itself -- we are talking about claims by a U.S. citizen that he was tortured by his own government -- destruction of evidence of this sort would be obstruction of justice of the most serious magnitude. This merits much, much more attention.

A lot of right-wingers have tried to defend Libby by saying that since "there was no underlying crime" the fact of his lying to the FBI and committing perjury to the grand jury should not have been prosecuted. The fact is, there was an underlying crime, exposing a CIA agent and her cover organization during war time. The problem is that it could not be proven beyond a reasonable doubt. And why not?

Because Libby committed perjury and lied to the FBI in a successful effort to obstruct the investigation of the Plame leak.

That's why there is a crime called "Obstruction of justice." It's because some criminals are able to hide the evidence of a crime and who committed it well enough to avoid successful prosecution. But as Patrick Fitzgerald ably proved, the very process of concealing the crime itself leaves clear evidence behind. It is that clear evidence the caused the Jury to find Libby guilty of four of the five charges against him. The most important of those charges was Obstruction of Justice.

If you look for the crimes committed by the government in Jose Padilla's case, they will be refusal to bring charges, refusal to permit access to an attorney and a number of such failures to follow due process in his case. Much more shocking is the allegation that he was tortured. While there is little doubt that he was tortured, the evidence is going to be sparse on the ground because of a clear and obvious effort at obstruction of justice.

This is the most lawless administration that America has ever suffered through, much worse that the Nixon regime. I don't think we will give up the Constitution, though. So what's next?

There should be another special prosecutor named in the Jose Padilla case. [We also need one to cover the Abu Ghraib case. Remember that? Who did it? The military. Who investigated it? The military. 'Nuff said.]

Simultaneously, the House of Representatives should get the evidence that Patrick Fitzgerald has developed and begin proceedings for an Impeachment. Unlike Iran-Contra, the criminal activities of the Bush administration are much too massive and much too severe for a mild coverup until the Bush administration goes home to do its further damage to America in other ways. That's what was done with Iran-Contra in 1987 and 1988, and the coverup left America open to the renewed criminality of the current Bush administration. Bush, Cheney, Rumsfeld and Rice are all criminals and war criminals. The evidence needs to be gathered and they all need to be put on trial.

It'll upset the hardcore conservatives, but we didn't let the fact that the Nurenburg trials upset the hardcore Nazis stop us from putting their leaders on trial. We are Americans, and if we want the "Rule of Law" back, we will have to put our own crooked leaders on trial.

If we don't try our own criminals, we will become less than Americans and our nation will be greately diminished. We will become just a much larger and more disgusting version of Serbia.