Manhattan Judge Spares the CIA

http://blogs.wsj.com/law/2011/10/06/...a/?mod=WSJBlog

By Terin Tashi Miller
10/6/2011

The Central Intelligence Agency has avoided a potential showdown with a Manhattan federal judge.

Judge Alvin Hellerstein (pictured) yesterday declined to find the CIA in contempt for destroying videotapes of its interrogations of Sept. 11 detainees, concluding that it would serve no beneficial purpose to penalize the agency, according to this AP report.

Hellerstein also noted in his ruling that the CIA has put in place new procedures to prevent such destruction from happening again.

The decision came in a lawsuit filed in 2004 by the ACLU against the Defense Department, the CIA, and several other government entities engaged in the arrest, detention, interrogation and rendition to other countries of prisoners caught up in the events following the 9/11 attacks. Filed under the Freedom of Information Act, the suit seeks the release of a range of governmental records.

The government, AP reports, has acknowledged that in 2005 it destroyed 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 ACLU had requested that Hellerstein hold the CIA in contempt for its destruction of tapes. “We moved for contempt, or in the alternative for sanctions, because the CIA destroyed these tapes at a time when there was in place a Court Order to process them as a result of this Freedom of Information Act case,” Lawrence S. Lustberg, an attorney for the ACLU, told the Law Blog earlier this week.

The judge concluded that the CIA’s new rules would have a “deterrent effect should a CIA official think to destroy documents,” AP reports. The new rules, Hellerstein wrote in his ruling, “should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.”

To bolster its contempt request, the ACLU recently sent a letter to the judge, addressing the CIA’s new policies regarding document preservation.

“These new policies … are not responsive as to why and how the CIA destroyed hundreds of hours of videotape depicting hash interrogations, in violation of this court’s orders,” the ACLU letter said. “It is now even clearer that the tapes were destroyed not because of inadequate document preservation policies, but because high-level officials flouted agency policy to protect themselves and the agency from public scrutiny.”

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

“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,” Abdo said.