This is an infinitely bigger story than the media, thus far, seems to realize. In the Jose Padilla criminal trial, the 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.