This should be interesting. I actually find myself optimistic about how the federal courts will respond to a Bush, Inc. outrage. As regular café visitors know, I almost never feel that way. The federal judiciary isn’t just stuffed to the bursting point with right wing ideologues: it’s stuffed to the bursting point with right wing ideologues who think like political operatives.
Yet, in the case of the Bush Administration’s wrongdoing in ignoring the orders of at least two federal courts to not destroy evidence of “enhanced” interrogation techniques (a.k.a. torture), I find myself surprisingly hopeful. Contrary to my usual skepticism, I doubt the courts will buy into the administration’s disingenuous loophole that, “hey, these guys weren’t even covered by the courts’ orders because they weren’t in Cuba, we had them hidden somewhere else.” Why do I feel that way?
I said it in a post a few days ago. “It’s not nice to fool Mother Justice”:
You can take my word for it as a trial lawyer — judges — even ultraconservative judges — don’t like it when litigants screw with them. It’s always a bad idea to lie to a judge, especially if you’re eventually going to get caught doing it. But it may be an even worse idea to try to come up with a clever dodge that allows you to lie to the judge (or flaunt his or her rulings) in substance, while leaving yourself a disingenuous loophole.
I went on to argue that the Bush Administration’s smartest move would be to drop this tack altogether. Better to plead mistake or throw some lower level employee to the wolves. Well, based on their recent court filing, we now know what their strategy is: and not only are they going full-bore with their loophole argument, they’re doing so in a particularly patronizing and dismissive fashion.
The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.
In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.
It was the first time the government had addressed the issue of the videotapes in court.
Kennedy ordered the administration in June 2005 to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”
Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.
Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.
There’s an old joke about federal judges: Saint Peter, speaking to an angel, said “I’m starting to worry a little about God. He seems to be getting an awfully big head.’
“Really?” the angel replied.
“Yeah, he’s starting to act like he thinks he’s a federal judge.”
Time will tell, of course, but I’m guessing that the federal courts won’t respond well at all to the Bush Administration’s dismissive attitude. These may be primarily conservative Republican federal judges, but they’re still federal judges.
And federal judges don’t like it when people tell them to fu*k off.