At this link, Andrew McCarthy links to and quotes this AP report report that a witness at MAJ Hasan’s Article 32 investigation, PFC Lance Aviles, testified that

he used his cell phone to record the rampage inside the processing center but was ordered by an officer to delete both videos later the same day. Aviles was not asked if he knew why the officer ordered the videos destroyed. It’s unclear exactly what the footage showed, although it could have been used as evidence in the case.

(A more detailed San Antonio Express-News account of PFC Aviles’ testimony on this point is available here, indicating that PFC Aviles was ordered by an officer and an NCO to delete the video.)

Mr. McCarthy draws the conclusion that “we have no choice but to believe (unless proven otherwise) that the military did not want to preserve a recording of a jihadist terrorist screaming Allahu Akbar! as he carried out a massacre unmistakably inspired by Islamist ideology.”

Mr. McCarthy then observes that “[t]he destruction of patently relevant evidence of a crime is itself a crime, obstruction of justice. If the military is not investigating it, then the Justice Department should be convening a grand jury. Of course, neither the Obama administration nor the Pentagon is likely to go near it, but the new Congress should be all over it until there is some accountability.”

First, let’s state the obvious.  If PFC Alviles’ testimony is true (and there’s no reason to believe it’s not), the order to destroy the video was amazingly stupid.  This was important evidence of a horrific crime and could have been extremely important for law enforcement agents, military justice officials, and intelligence agents in the aftermath of the offenses.  

Was this amazingly stupid order given because the people who gave it made an amazingly stupid mistake or because “the military did not want to preserve a recording of a jihadist terrorist screaming Allahu Akbar! as he carried out a massacre of unmistakably inspired by Islamist ideology,” as Mr. McCarthy says “we have no choice but to believe”?

Regarding Mr. McCarthy’s obstruction of justice claim, it’s important to remember that an element of obstruction of justice under the Manual for Courts-Martial is that “the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice.”  MCM, Pt. IV, para. 96.b(3) (2008 ed.).  The federal civilian obstruction of justice statute has been interpreted to include a similar intent to obstruct justice requirement.  See, e.g., United States v. Conneaut Industries, 852 F.Supp. 116, 126 (D.R.I. 1994).

While I believe that Mr. McCarthy provided a service by highlighting this testimony and while I agree with him that the matter should be investigated, I think he overgeneralized by drawing conclusions about what “the military” wanted based on the limited information currently available and jumped the gun even as to what motivated the specific individuals who apparently ordered that the video be deleted.

13 Responses to “Andrew McCarthy’s observations about the Hasan case”

  1. who's your daddy says:

    Here is my hypothesis: The officer and NCO wanted it deleted, not because they wanted to destroy evidence that could be helpful to a court-martial, but instead so that our enemy (AQ not AM) would not use it as propaganda.
    I think it was wise considering that the court-martial will achieve its’ ends without the evidence. AQ surely would have benefitted from its distribution and use. AM would also have benefited (thus his frustration) in his propaganda war against Islam. AM does not grasp COIN or warfare in general for that matter. He probably (since he chastises “hearts and minds” warfare theory) believes that the surge worked b/c we had more troops to kill more AQ in Iraq. But, this is for another day. Point is, that AM is partially correct, but the reasoning was not to deprive he and his allies of their propaganda piece; rather it was to deny AQ of theirs.
    Lastly, while i generally believe that the solemn choice of when life begins and ends should be left to our creator — I could draw an exception for UBL – and 13 dead and 30 plus wounded by someone who self-identifies with the enemy could jusifiably meet the same fate.

  2. Anonymous says:

    Really, it’s nothing more than a stupidly reflexive application of the general “no cameras on base” rule.

    Weekly we hear about incidents where a witness has taken photographs which would be useful for our investigations, only to be told by the witness that the photographs had been destroyed at the orders of security or someone one else in the witness’s chain of command.

    This week it was a sewage overflow, although typically it’s a fender bender. In every case the reaction is to threaten the photographers with administrative or disciplinary action for violating the base security regs unless they destroy the photos. Given how universal this reaction is, I’m sure they must teach it somewhere.

  3. publius says:

    Interesting that lack of intent is an accused torturers’ get out of jail free card too. As in, “we pulled out his fingernails and hung him by the feet from the ceiling for a few hours because we were trying to get information from him, not because we wanted to hurt him”. McCarthy’s made that point loud and long before. Here though, “we have no choice to believe” other than that the US Army is crouched in supine dhimmitude. He’s embracing that surname rather too zealously.

  4. Phil Cave says:

    There might also have been evidence in the video that might of assisted the defense. From experience, video’s of an accused’s actions seen on a video may assist a forensic mental health examiner, for both sides about the accused’s demeanor, facial expressions, and “body language” that may give clues as to mental state that aren’t accurately recorded by a witness or related by a witness.

  5. Anonymous says:

    I’m sure, if true, eventually we will get an explanation for why the order was given and I’ll bet it was simply a gut overreaction than some conspiracy to hide information; however, this must be extremely frustrating for the trial counsel who I’m sure are trying to make this case as clean as possible. Any way that deleted information from a cell can be recovered similar to a computer hard-drive?

  6. Rickey says:

    I can also see where there may have been concerns about the video going viral, but couldn’t the cell phone simply have been confiscated until the proper authorities could decide what to do about the video?

    Which begs the question – what are the rules regarding cell phone use while on duty? I assume that we are talking about a personal cell phone, not an Army-issued cell phone. That wasn’t an issue back in my day, when the nearest thing to a cell phone was a walkie-talkie.

  7. Phil Cave says:

    There are software/hardware items available to a forensic computer examiner that may recover the video.

  8. soonergrunt says:

    Yes, SD, MicroSD (commonly used in cell phones) and SDHC cards can all have ‘deleted’ data recovered.
    http://www.diskdoctors.net/recover-data-from-sd-card.html is the brand I’ve used for this purpose. I don’t know the legal standards for this, but it should be possible, barring the data being overwritten multiple times. For a hard drive, that number is 7 layers. The website says specifically of SD cards that “data once overwritten cannot be recovered.” Some of it may be recoverable and re-constructable, possibly.
    This smells to me more like the same kind of thing as people making up regulations as they commonly will “you can dip but you can’t smoke in uniform, per AR 670-1” and such like, and misunderstanding how regulations work, in as much as that private (if he actually did record the video, and he’s not just blowing smoke) would be extremely unlikely to be looking at an Art. 15 for recording video if that video was evidence of a crime.
    I have to wonder on some level though. A very wise CSM told me at my NCO Corps Induction that “Joe (privates) will f**k you. He’s not a bad sort, Joe. He don’t know no better, and he don’t mean to f**k you. He’s just going to f**k you because that’s what he does.” To which my then-Platoon Sergeant replied “Sergeant Major, Joe’s a miserable lying little ba*ta*d!!!”

  9. Christopher Mathews says:

    Given how universal this reaction is, I’m sure they must teach it somewhere.

    Perhaps.

    During our second tour in Japan, my wife stopped to snap a few pictures of Mt. Fuji on an uncharacteristically-clear day. Unfortunately, the mountain was on the other side of the flightline from her vantage point, and a Security Forces patrol car was just a few feet away. She was detained and the film confiscated.

    At the time, it seemed like an innocuous aggravation. Now, thanks to the wisdom of Brother McCarthy, I have no choice but to believe (unless proven otherwise) that the military did not want to preserve an image of a sacred Shinto landmark brooding imperiously over a U.S. military installation that would be helpless in the face of an eruption unmistakably inspired by plate tectonics.

  10. Not a zombie says:

    That’s the point. McCarthy thinks it is inculpatory, but it could just have easily shown him walking around like an automaton setting up an insanity defense. And video does not lie.

  11. ksf says:

    Sooner,

    Sounds like you chose the wrong field. When you retire, you should open an office and provide services as a forensic computer expert. Call me when you do; I could use a common sense no bull$hit guy who knows what an SD card is.

    By the way, at Charlottesville, we referred to “Joe” as “Snuffy,” and we had similar colliloquys regarding how Snuffy will fu%* you with an IAC claim after you get him the deal of a lifetime.

  12. J.A Conelly says:

    so, in the stroke of the moment the PFC was ordered to delete information to hide an Islamist murdering American troops.

    Mr, Mcarthy knows nothing about a military mindset or he is simply giving the military too much credit. Rather, I would believe this was a simply bone-headed call by an overzealous Officer/NCO.

    Its becoming so depressing as everyone seeks a conspiracy theory in any even and tries to link every cowardly murderous act to an entire religion either forgetting or too bigoted to acknowledge that there are many Americans who are in fact moslems and serve this country and die for it.

    So depressing, everyone seemed to have an agenda and really how ignorant is it to believe we can defeat a terrorism by belittling one of the great religions who like many great religions has its share of fanatics

  13. soonergrunt says:

    @KSF–I’m currently working as an IT contractor, hoping my position goes federal civil service. A large and constant feature of my job seems to be to tell people ‘no’.
    USER: Can I plug my iPod into my government computer?
    ME: No.
    USER: Can I view porn on my government laptop while on TDY?
    ME: No.
    USER: Can you install left4Dead 2 on my government laptop before I leave for TDY?
    ME: No.
    USER: Can I rip a bunch of music to my hard drive to listen to on break?
    ME: No.
    I have actually been asked these questions in the month since I took this job just after my surgery.