by David Kravets
A federal judge won’t hold the CIA in contempt for destroying videotapes of detainee interrogations that included the use of a torture technique known as waterboarding, ruling instead Wednesday that the spy agency merely committed “transgressions” for its failure to abide by his court order.
Punishing the Central Intelligence Agency, U.S. District Judge Alvin Hellerstein of New York ruled, “would serve no beneficial purpose.” (.pdf)
Hellerstein wrote that CIA officials responsible for producing the tapes in a Freedom of Information Act lawsuit might “not have been aware of the videotapes’ existence before they were destroyed.” The judge also said officials who ordered the tapes’ destruction in 2005 might not have been “aware of court orders requiring identification or production of the videotapes.”
The American Civil Liberties Union, which brought the long-running FOIA case and asked for a contempt finding, had requested that Judge Hellerstein order depositions and discovery to ascertain if CIA officials destroyed the 92 videotapes of post-9/11 interrogations of terrorism suspects after they had notice of court orders to produce them.
The judge declined.
“I will not allow additional discovery,” the judge said. He added that the CIA has admitted that some of the videos showed the CIA using waterboarding torture techniques. Footage on one tape, he said, had shown an interrogator who “continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.” The Obama administration has declined to prosecute CIA officials for torture, citing legal memos that authorized the techniques.
Hellerstein said because of the tapes’ destruction, the CIA “improved protocols for the retention of records potentially relevant to an investigation or a judicial, congressional, or administrative proceeding.”
The judge said the tapes’ destruction “exposed serious flaws” in the CIA’s document-retention procedures, and he noted that the CIA in August “adopted new document preservation and destruction protocols to insure against similar transgressions in the future.”
Alexander Abdo, an ACLU staff attorney, blasted Hellerstein’s ruling.
“While today’s decision recognizes that the CIA violated a court order when it destroyed the torture tapes, we are 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 said in a statement. “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.”
The CIA in 2007 admitted to destroying the tapes of interrogations of alleged al-Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri. A special prosecutor last year found that CIA officials should not be charged for the tapes’ destruction.
A year before the tapes were destroyed, Hellerstein ordered the CIA “to produce or identify all responsive documents” in response to the ACLU’s request for “records concerning the treatment of individuals apprehended after September 11, 2001, and held by the United States at military bases or detention facilities outside the United States.”
Hellerstein ordered the CIA to pay the ACLU’s legal expenses.