NY judge won’t find CIA in contempt over tapes

(Weekly Intercept)   A federal judge declined Wednesday to find the CIA in contempt for destroying videotapes of Sept. 11 detainee interrogations, saying to do so would serve no beneficial purpose and the CIA had put in place new procedures to prevent such destruction from happening again.

U.S. District Judge Alvin Hellerstein said in a written ruling that the CIA has since remedied its failure to produce videotapes in response to requests by the American Civil Liberties Union. He wrote that the people processing the ACLU’s Freedom of Information Act request may not have been aware of the videotapes’ existence before they were destroyed.

The government has acknowledged destroying 92 videotapes, including those containing interrogations of a high-level al-Qaeda lieutenant who claimed he suffered physical and mental torture at the hands of the CIA. The tapes were destroyed in 2005.

In January, the judge said a contempt finding would be impractical and told the CIA to investigate itself and report how it will prevent employees from destroying information in the future. On Wednesday, he noted that the CIA adopted two new policies in August regarding document preservation to ensure that destruction of any documents outside of routine management of CIA materials will not occur without a review by lawyers to ensure they are preserved for legal proceedings or congressional oversight activity.

The judge said the CIA’s new protocols would have “a remedial and deterrent effect should a CIA official think to destroy documents.”

“The protocols should lead to better communication and more complete written records within the agency and across the government when an issue of document destruction or retention arises within the agency,” he said. “The CIA’s new protocols should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.”

Alexander Abdo, staff attorney with the ACLU National Security Project, wrote the ACLU was “profoundly disappointed by the court’s unwillingness to label as contempt what it describes as the CIA’s ‘dereliction.'”

“We also strongly disagree with the court’s finding that the CIA has ‘remedied’ the destruction,” Abdo wrote. “The truth is that the CIA destroyed evidence of torture, and the destruction of this evidence has made it harder to hold high-level officials accountable for the abuse that they authorized.”

Carly Sullivan, a spokeswoman for federal lawyers who argued the case, said the government had no comment on the ruling.

In his ruling, the judge noted that the ACLU had cited a recently published article by a former general counsel for the CIA that accused the CIA’s former deputy director of operations of defying orders and going behind the top CIA lawyer’s back to destroy the videotapes.

He said the argument premised on the belief that one high-ranking official defied orders and destroyed the tapes undermines the ACLU’s contention that the CIA as an agency should be held in contempt for the conduct.

Still, the judge wrote, “the lapses of individuals cannot excuse the failures of the agency.” He said the CIA had an obligation to identify or produce the videotapes and “cannot be excused in its dereliction because of particular individuals’ lapses.”

The administration of President George W. Bush had said some tapes were destroyed to protect the identities of the government questioners while the Department of Justice was debating whether the interrogation tactics were legal.

In September 2009, the judge cited national security concerns in ruling that the CIA did not have to release hundreds of documents related to the destruction of the videotapes. He has said he likely would have ruled against public disclosure of videotapes documenting new harsh questioning techniques if the CIA had not destroyed them.

An ACLU lawsuit already has forced the release of legal memos authorizing harsh interrogation methods, including waterboarding, a type of simulated drowning, and slamming suspects into walls, techniques described by critics as torture.


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