CIA Faulted for Destruction of Interrogation Videotapes

Mark Hamblett

New York Law Journal

A federal judge will not hold the CIA in civil contempt for the 2005 destruction of videotapes of the interrogation of high level al-Qaida detainees -- but only because it would not do any good.

Southern District of New York Judge Alvin K. Hellerstein expressed disgust Thursday over the destruction of the tapes, which he said likely violated his own September 2004 order to preserve information in a case brought by the American Civil Liberties Union under the Freedom of Information Act.

The ACLU, in American Civil Liberties Union v. Department of Defense, 04 Civ. 4151, is seeking information on possible deaths and mistreatment of prisoners and the transfer of some prisoners to countries that employ torture during interrogations. The group asked Judge Hellerstein to review the destruction of the interrogation tapes in light of the pending litigation.

During a hearing in lower Manhattan, however, Hellerstein said it would serve no purpose to hold the agency in contempt, other than to create "a newspaper headline."

Instead, he said, he would focus on a remedy, one that might include requiring current and former CIA personnel and other government officials who had seen the tapes to produce any written notes or summaries.

The judge also raised the possibility of issuing subpoenas if necessary to former agency personnel to secure their testimony.

Given the uproar over the destruction of the tapes, a 2004 investigation by the CIA's Office of Inspector General into reports of detainee abuse, and the internal debate within the CIA over whether the tapes should have been preserved, Hellerstein said it was hard to believe that the tapes were not saved or even that anyone who viewed the tapes failed to take notes or make summaries of what they saw.

"There is this whole study, however you characterize it, of how the CIA treats prisoners for purposes of interrogation and now I'm asked to believe that actual moving pictures, videotapes, of the relationships between interrogators and prisoners are of so little value" that they were not retained, he said, adding later, "It boggles the mind."

The reference to how the government "characterized" the inquiry was the judge's response to an argument raised Thursday by Assistant U.S. Attorney Peter Skinner.

Skinner said the judge's September 2004 order to review information collected by the CIA's inspector general was not violated "because the court's order required us to review what was collected by the Office of the Inspector General, and these [the tapes] were never collected by the Office of the Inspector General."

Skinner also contended the inspector general was conducting what was termed a "special review" of the detainee treatment and not an investigation within the meaning of the CIA Information Act, 50 U.S.C. §431(c)(3).

Section 431(c)(3) empowers the agency's director to exempt certain "operational files" from publication or disclosure under the Freedom of Information Act.

But the act contains an exception to that exemption, exposing documents to the requirements of FOIA where an "impropriety, or violation of law, Executive order, or Presidential directive, in the conduct if intelligence activity is being investigated by the congressional intelligence committees, various agencies of government or the Office of the Inspector General of the Central Intelligence Agency."

If the court disagreed with the definition of "collected," Skinner said, the next issue for Hellerstein would be "whether the special review in and of itself triggered any of our search obligations under §431(c)(3)."

2005 RULING

Judge Hellerstein said he already had addressed the issue of the government's general obligations by ruling in February 2005 that it is irrelevant whatever the form an investigation or inquiry takes or the name is it assigned. What matters, he said, is whether or not information is "collected" so that, barring a statutory exception, it must be turned over under FOIA.

Hellerstein's February 2005 ruling rejected the CIA's claim that it is exempt from turning over files on the treatment of detainees in Iraq and other locations, a ruling that required the agency to find the files and either release them or provide a justification under the CIA Information Act for keeping them secret (NYLJ, Feb. 3, 2005).

Because the Office of the Inspector General launched a criminal investigation of allegations of improper treatment of detainees in Iraq in May 2004, the ACLU contends that the hundreds of hours of videotapes taken of interrogations were fair game for their FOIA request and brought the tapes within the purview of Hellerstein's September 2004 order and his February 2005 ruling.

Amrit Singh of the ACLU told the judge Thursday that the group was interested less in the contempt citation than in making sure the agency turns over what it still has on the interrogations. She called the issue one of "fundamental importance" because it was "central to the survival of the FOIA as we know it."

The videos, Singh said, "were the subject of an investigation" and even if the court found that they were not, Hellerstein could still order remedies.

But she insisted that the special review was "in fact" an investigation.

The judge also was concerned that CIA personnel may have circumvented the requirements of FOIA and his orders by deliberately keeping the tapes out of the official file given to the Office of Inspector General.

"The purposeful prevention of functional collection by destroying that which has been collected, particularly after they have been seen, would not seem to me to be an excuse," the judge said.

"The responsibility is not yours, Mr. Skinner," he said at one point, adding later. "It seems that you were gulled and the court was gulled."

Hellerstein said the videotapes were the subject of "considerable discussion."

"And yet, they are not in the OIG files? There are no references in the OIG files?" Hellerstein said. "If this came up in a normal case, it would not be credible."

The destruction of the tapes of the interrogation of two al-Qaida operatives is the subject of a congressional inquiry and a Justice Department criminal investigation into whether or not the head of the CIA's clandestine division and other officials destroyed the tapes to prevent them from being exposed, including in court proceedings.

"Frankly, I can't comprehend ordering the contempt of a government agency," Hellerstein said, but "there are specific individuals who need to be questioned and if they showed a willful disregard," there would be consequences.

The judge said that, while he was not into "punishing the government," he was "interested in accomplishing the purposes of FOIA."

And given that it was "quite possible the destruction was not absolute" because it is likely that notes and summaries exist, the appropriate remedy might be an order to turn over those materials to the ACLU, he said.