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Federal Judge Rebuffs ACLU, Denies Release of CIA Interrogation Memos
New York Law Journal
October 01, 2009
A federal judge in New York on Wednesday refused to order the release of hundreds of documents concerning the use of enhanced interrogation techniques by the Central Intelligence Agency.
Judge Alvin K. Hellerstein, weighing whether to punish the CIA for having destroyed videotapes of interrogation sessions, said he was deferring to the judgment of the director of the CIA that the release of documents related to the interrogations would hurt the agency's ability to gather intelligence in the field.
Ninety-two videotapes of the sessions were destroyed after the American Civil Liberties Union several years ago sued in the Southern District asking Hellerstein to order their production under the Freedom of Information Act, (FOIA).
Wednesday, Hellerstein reviewed in camera a sample of 65 out of 582 documents requested by the ACLU before holding a hearing in open court.
The documents included cables from CIA field operatives to headquarters, as well as two 2005 memos from the U.S. Department of Justice Office of Legal Counsel, which is investigating the destruction of the videotapes.
These documents were ordered produced for his review as part of an ongoing contempt proceeding against the CIA for flouting the judge's earlier order to produce the videotapes.
Once in open court, Hellerstein said he must defer to judgment of CIA director Leon Panetta, particularly in the context of a FOIA proceeding and given the fact that the Justice Department's criminal probe is ongoing.
"The government has admitted that what it has done is wrong," Hellerstein told lawyers for the government and the ACLU. "The fact that something was wrong and was admitted as wrong does not change the bar, in my opinion, on deference."
Alex Abdo of the ACLU said after the hearing that the decision essentially means that the 582 documents the group asked to be released will remain classified.
Abdo and his colleagues had asked that heavily redacted documents already ordered released be produced in unredacted form. The ACLU was particularly keen to learn the identities of detainees who had been interrogated as well as the identity of contractors working for the CIA.
"This is a new level of deference to the CIA's decision to withhold information about an interrogation program the whole world knows about," said Abdo.
Hellerstein tentatively ordered the release of a six-page record of written notes of a CIA field officer discussing the interrogation videotapes with a CIA attorney. But the judge nonetheless gave the government two weeks to renew its argument on why those documents should not be disclosed.
Assistant U.S. Attorneys Sean H. Lane and Heather K. McShain met with Hellerstein Wednesday for more than an hour for his review of the classified documents in both redacted and unredacted forms. Those documents included the 2005 Office of Legal Counsel memos, which described the enhanced interrogation techniques, and other documents that described the contents of the destroyed videotapes.
In the end, the judge also allowed the CIA to continue withholding a copy of its standard interrogation policy and documents discussing some of the methods used.
Hellerstein rejected Abdo's plea to "sanction the government's ongoing violation of the law."
The judge said, "I have some reluctance in basing a ruling whether something should be disclosed or not disclosed based on whether it is illegal or not."
Hellerstein said he had "Very strong personal views on the subject but they need to be cabined" given the role of courts and the responsibility of the executive branch to protect the nation.
"The director of the CIA has made a strong representation about the needs of the CIA" to do its job and gather information, he said.
But Abdo replied that "deference is particularly unwarranted," in that "we are here today because the CIA destroyed the documents in violation of the court's order."
The litigation is not over, Abdo said after the hearing. The ACLU is continuing to argue for the release of documents describing the reasons behind the destruction of the videotapes.
Jenny-Brooke Condon of Gibbons P.C. also represented the ACLU.
The Associated Press contributed to this story.
