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.