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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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The Widening CIA Torture Scandal


CIA torture-tape scandal is becoming more interesting. It now turns out that White House personnel played a major role in the decision on whether to destroy the tapes. While it is still unclear what everybody’s position was on the matter, according to the New York Times, the White House people who took part in the discussions were former White House Counsel (and later Attorney General) Alberto R. Gonzales, Vice-President Cheney’s counsel David Addington, senior National Security Council attorney John Bellinger III, and White House Counsel Harriet E. Miers. Also involved in the decision-making process were CIA attorneys.

According to the Times, a former senior intelligence official said that some of the White House officials “believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier at Abu Ghraib prison in Iraq.”

That is exactly what I intimated in my December 12 blog (“Don’t Reform the CIA — Abolish It”)—that the CIA is likely lying when it claims that the reason for destroying the tapes was to protect the identity of CIA torturers from retribution from al-Qaeda. The much more likely explanation for the destruction of the tapes was to protect the torturers and their enablers from adverse publicity and criminal prosecution. It was also likely intended to protect President Bush and his constantly repeated false mantra “We don’t torture.”

Several days ago, on the instructions of President Bush’s new attorney general, Michael Mukasey, the CIA refused to comply with congressional subpoenas to appear before Congress to testify about the scandal. Such a refusal confirms another point I made in my blog — that the CIA, not the Congress, is the supreme governing authority in this country.

Congress purportedly has the authority to enact laws in this country, including laws that govern the CIA. As part of that process, it has the power to subpoena witnesses, just as the courts do. When ordinary people are served with a subpoena, they must either appear as ordered or secure a court order quashing the subpoena.

Not the CIA though. Did the CIA go to a court asking for an order to quash the congressional subpoenas? Nope. It just ignored them. That’s the power that the CIA has in this country. As I stated in my previous blog, the CIA isn’t above the law, it is the law.

But now there is another interesting development. The judicial branch of the U.S. government is now involving itself in this scandal. That could set up a rather fascinating confrontation between the CIA and the federal judiciary. After all, the CIA can easily cow and intimidate, even blackmail, members of Congress into laying off the CIA. Doing so to an independent federal judge who has a lifetime appointment might be more difficult.

The federal judge, Henry H. Kennedy Jr., ordered a court hearing into whether the CIA violated a court order to the government to preserve evidence in cases involving suspected terrorists. The Justice Department told Kennedy that he lacked jurisdiction to inquire into the destruction of the tapes. But while Congress quickly backed down from its hearings after Mukasey told it to back off, Judge Kennedy, without comment, proceeded to go ahead schedule a hearing into the matter.

My hunch is that Attorney General Mukasey, a former federal judge himself, is not going to ignore Judge Kennedy’s order. My hunch is that Justice Department lawyers are going to be in full attendance at the court hearing.

Of course, what happens at that court hearing is another issue. The judge could simply decide not to delve into the matter after hearing legal arguments from the attorneys. Or he could schedule an evidentiary hearing into the matter, in which subpoenas — yes, subpoenas — would undoubtedly be issued to CIA personnel. If that happens, it will be interesting to see if Mukasey and the CIA ignore subpoenas issued by a federal district court, like they have done with the congressional subpoenas.

Are you getting a sense of why President Bush’s close friend and ally, Pakistani military strongman Pervez Musharra, simply fired and jailed the federal judges in his country? Are you getting a sense of why Bush refused to ardently condemn Musharraf for such action?

If it turns out that the CIA destroyed the tapes in violation of a court order and if the federal judge does relatively little about it, for all practical purposes the situation won’t be any different in principle than what is going on in Pakistan. After all, if government officials can violate with impunity constitutional constraints, laws, subpoenas, and investigations and judicial orders, how much closer to dictatorship can a nation get than that?

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.