If you haven’t seen that kind of language that gets in subpoeanas, it is typically pretty broad and is set forth in a pretty thorough and annoying *lawyerspeak* multiparagraph description.

So what would have been requested, and granted in some possibly reduced form, as to the specific named terrorist suspect detainees, would be first a relatively broad characterization of the US Government entities (since the US is a party to the litigation in a criminal matter) that are required to look – describing by identity and function (the Who of the production) – then a broad listing of what is being sought (the what of the production) – then a broad listing of the possession – control issues (the where) and specifications as to the way it is turned over and to whom (for example, here, perhaps in a certain type of room to just the Judge ex parte initially)

e.g. (just as a rough outline)

function:
- all applicable government entities involved in the interrogation and application of interogation techniques (including, without limitation, harsh interrogation or specially authorized interrogation) questioning, surveillance (including without limitation, data, audio, visual or any other form of surveillance of any kind or nature), caretaking, recordkeeping,(yada yada – this is just for example and not based on working it through) …..(collectively, the “Activities”),

identies:
such entities including, without limitation (and a list would ensue – for example FBI, CIA, NSA, military intelligence or other known possible sources, etc.) and all related or affiliated entities and their officers,employees, agents, contractors and subcontractors …..(collectively, the “Producing Persons or Entities”)
and the order/request would also have a description of what would need to be turned over:

shall produce to the court (or other parties, but probably all to the court initially for ex parte review) all records of any kind whatsoever relating to the files, notes,(including, without limitation, handwritten, audio, electronic, digital…)video tapes, audio tapes, digital or electronic records, summaries, memoranda, … whether now existing or formerly existing and presently memorialized, summarized or otherwise referenced in any manner whatsoever(the “Information”)

and for example on the where:

in the possession of, warehoused by, under the control of, owned by, or reasonably accessible by or to each or any of the Producing Persons or Entities …

As others can attest, that’s just a short sample of how the defense requests might have appeared, but they are very unlikely to have failed ot include issues regarding which entity, control, etc.

I have to think that, while it would have been pared down from the broad requests language, Brinkema would not have failed to address control, agency, etc. issues. Which makes the exact wording of her orders and the declarations interesting. It appears that with respect to another order by another Judge, specifically directing the CIA not to destroy evidence, CIA is now trying to parse that the destruction of the disclosed destroyed tapes was ok bc the order language only related to interrogations of GITMO detainees, not the then unacknowledged black site detainees who were first publically alluded to in the Dana Priest story.

Gigliamo tried the same kind of parsing early in the initial story as it came out with respect to Brinkema, indicating that only specific terrorist suspect detainees were mentioned in Brinkema’s orders, and that the destroyed tapes were not of those detainees (but that seems to be falling apart with the acknowledgements that Zubaydah was on the destroyed tapes, bc there is almost no way he would not have been in the Judge’s order, even though I haven’t seen that order. Moussaoui was requesting Z as a witness from the very very very beginning, and very publically so.

And lest anyone forget, the Padilla arrests were initiated by DOJ getting arrest warrants based on what appears to have been the torture statements of Zubaydah and Binyam Mohammed (who, alone of the British GITMO detainees is not being released to a country where he might start talking to the press and where his abuse claims could be medically investigated). Given the high profile of the Padilla case and his objection to that arrest warrant and allegations of torture in relation to the statements supporting it – - how can tapes of Zubaydah being tortured not be deemed relevant to that case and its appeals? I have to wonder if there wasn’t a preserving order in that case too, but by the time Padilla was undisappeared after years, it looks like Gov may have already taken all many gifts Judge Luttig gave them, including the time and free hand to destroy evidence, and put it to good use. I believe the Comey prequel to Nifong (press conf) on Padilla was June of 05 (I’m notoriously bad on names and dates though – so don’t rely). All the allegations that he made about Zubaydah’s interrogations and information – - within a few months of that presser and well before the Padilla case was decided (the Sup Ct at that juncture remanded) his DOJ was destroying all that evidence it supposedly reviewed and which Comey assured everyone “proved” that the President was a wonderful guy who made great decisions.

Gosh – who would want to destroy proof of such nobleness?

To put in the the lhp comment for her — “maybe the CIA was waiting for Comey to leave” to destroy the tapes? Was he involved in those heated discussions? Seems likely that he was involved in the discussions. Given the distortions and misrepresentations and misuse of public statements in the Padilla presser, I have to speculate as to whether he would more likely have been a prop, rather than a block, to conspiracies to conceal DOJ’s involvement with making the US a state sponsor of torture – but who knows?

Thanks as always bmaz, for answering all of my pesky questions! I sure wish I knew more about the law. G’night…

Oh, and one more thing, you say the court can make a direct referral — would that have to be Brinkema in this case since she requested this evidence? And if so, does she have the authority to make such a referral at will or does she have to wait for the defense lawyers to request her to do something?