Why didn't the CIA give the tapes to the 9/11 Commission when asked? Coverup!

Marty Lederman at Balkinization discusses jut how badly the CIA and the Bush administration did NOT want the 9/11 Commission to get the torture tapes.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports ..., the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes -- which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission repeatedly sought "documents," "reports" and "information" related to the interrogations from the CIA -- but "staff members never specifically asked for interrogation videos."

At one meeting, Lee Hamilton told George Tenet that "the C.I.A. should provide all relevant documents 'even if the commission had not specifically asked for them.'" How infelicitous of Representative Hamilton -- you see, a videotape isn't a "document"!

I urge you to read the entire report from Phil Zelikow,, and ask yourself whether the concerted effort by countless government officials, up to and including Alberto Gonzales, Donald Rumsfeld and Steve Cambone, to assiduously avoid mentioning the videotapes to the 9/11 Commission -- in countless meetings and in response to numerous requests -- when obviously those videos would have been the motherlode of the evidence that the Commission was seeking, can possibly be justified. Zelikow wonders whether this didn't violate 18 U.S.C. 1001(a)(1) (prohibiting the knowing and willful concealment of "material facts" in an investigation by any "trick, scheme, or device"). Even if it did not, is there any scenario in which such stonewalling would not have constituted utter contempt for the Commission -- bad faith at a very high and sustained level?

Here's the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson. In other words, they knew the tapes were relevant -- indeed, the most relevant evidence possible -- and that they would be required to produce them if only the Commission and its lawyers somewhere down the line used the word "tapes," or "recordings," or "evidence." But they failed to mention the tapes.

This is clearly criminal behavior by members of the Bush administration. There should be a rapid, broad investigation and criminal charges brough quickly.

You want to know that the conservatives will say to defend this criminal behavior? They will claim that bringing charges in court against the criminals who conducted this criminal behavior is criminalizing politics.

Then they will complain that illegal immigrants should be arrested and because they violate the law by their very presence in America, or a tourist who overstayed her visa by three weeks back in 1995 should be arrested in the New York Airport, carried out in chains, held overnight, then deported - again in chains - the next day back to Iceland.

So violations of really important laws should not be criminalized by bringing charges in court if the culprits are conservatives, but a tourist who overstayed her visa by three weeks 12 years ago gets treated like a terrorist.

How in God's name to Republicans live with themselves and sleep at night?