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Judge Sanctions CIA for Destruction of Interrogation Tapes

CIA floor seal (photo: Wikimedia Commons )

A judge has sanctioned the CIA for the destruction of interrogation tapes but rejected a renewed motion from the ACLU to have the court hold the CIA and other individual officials like Jose Rodriguez in contempt. The ACLU considers the outcome a fairly significant success, despite the fact the CIA was not found to be in contempt by Judge Alvin Hellerstein.

Staff attorney at the National Security Project of the ACLU, Alex Abdo, reports Hellerstein awarded attorney fees for their efforts to expose the CIA’s destruction of the tapes. He did not think destruction of the tapes should have taken place. The CIA had violated his order, however, he would not hold the CIA or any individual officials in contempt.

The judge had already ordered the CIA to process documents describing the contents of the tapes and the rationale for the tapes’ destruction. The awarding of attorney’s fees was one of the remaining awards the court could grant to the ACLU.

Additionally, given the government’s penchant for over-classification, secrecy and non-cooperation or outright obstruction of Freedom of Information Act requests, Hellerstein recognized the “importance of the particular records request” in establishing a “public narrative” of the CIA’s torture program. Hellerstein credited request and litigation with uncovering those records, which now provide a history of one of the darkest periods in American history (that in many ways is not entirely over but continues under President Barack Obama).

Abdo noted it should not have taken eight years of litigation to get information released.

The ACLU invoked the Freedom of Information Act in 2003 and demanded records on abuse and torture of prisoners in overseas US detention centers. More than 100,000 pages, according to the ACLU, have now been released. Abdo says “a small amount of information” has not been released. There is a gap “in the middle” of “two ranges” of documents already processed by the government. But, for the most part, the ACLU has managed to get the government to release through FOIA what they wanted.

Hellerstein did not order the further processing of information as part of the sanctions, however, the ACLU could file a FOIA request tomorrow if they wanted and continue to pursue the material that has not seen sunlight yet.

The CIA tried to use two key arguments to win their case against the ACLU. One, they argued the interrogation tapes were “operational files.” This was part of the CIA’s argument for why they shouldn’t be held in contempt. Hellerstein rejected their reliance on the operational files exemption.

The other argument the CIA had been making, that the ACLU’s motion was invalid because there had been no investigation into the impropriety or illegality of the interrogations so the ACLU had no grounds for a suit, was summarily struck down again. Abdo explains the CIA made this argument back in 2004-2005, when they were fighting to prevent a CIA inspector general report from being included in the CIA’s FOIA request. Hellerstein reiterated that he disagreed with the CIA’s logic.

The renewed contempt motion filed by the ACLU provides detail on what the organization was battling. It details:

Despite this Court’s clear command, the CIA failed to produce or identify hundreds of hours of videotape depicting harsh CIA interrogations, even though these tapes were plainly responsive to Plaintiffs’ FOIA request.  And in November 2005, with the consultation and participation of high-level CIA officials and in the face of heightened scrutiny regarding CIA interrogation practices, the CIA secretly destroyed these tapes—bypassing judicial review of Plaintiffs’ FOIA request and irrevocably deciding that the videotapes would never be disclosed.  The existence, and destruction, of these tapes came to light two years later, when CIA Director Michael Hayden posted a letter on the CIA’s website on December 7, 2007, after discovering that reporters had learned what had occurred.

Videotaping of detainees was discontinued in December 4, 2002. The ACLU’s motion explains why they think the videotaping stopped:

On December 4, 2002, the CIA discontinued its practice of videotaping interrogations…While the redacted documents do not clearly establish why the CIA discontinued the videotaping, the decision was made two weeks after a CIA prisoner—Gul Rahman—was killed in the CIA’s “salt pit” prison in Afghanistan, and on the same day that a prisoner whom the CIA had delivered to army interrogators in Afghanistan was found dead in his cell, suspended by handcuffs from the mesh ceiling. The second prisoner, Habibulah, was presented for autopsy “clothed in a disposable diaper,” and “no additional clothing or personal effects accompan[ied] the body.”…The military first claimed that Habibulah had died of natural causes, but a medical examiner concluded that the death was a “homicide,” caused by “pulmonary embolism due to blunt force injuries.

The ACLU’s efforts have managed to piece together what one might have been on the tapes that were destroyed. There were 92 tapes and 90 were of Abu Zubaydah being interrogated. He was “initially interrogated by two FBI agents at a CIA facility using a ‘rapport-based’ approach.” This was believed to be working, but days later the CIA assumed control and began using what the FBI termed “borderline torture.” The FBI agents reported the use of the techniques to their superiors and were told to leave the CIA facility. The ACLU’s motion reads, “FBI leadership determined that FBI personnel should not participate further in the Abu Zubaydah interrogation because the CIA’s techniques were ineffective,  “wrong,” did not take into account an “end game,” and “helped al-Qaeda in spreading negative views of the United States.”

Zubaydah was subjected to most if not all of the “enhanced interrogation techniques” or torture methods approved by the Bush Administration for use. For example, isolation reduced caloric intake, the use of loud music and the use of diapers, which the CIA later claimed to be standard. The CIA waterboarded Zubaydah 83 times in the month of August 2002.

This is how Zubaydah described the CIA’s interrogations:

I was put on what looked like a hospital bed, and strapped down very tightly with belts.  A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe.  After a few minutes the cloth was removed and the bed was rotated into an upright position.  The pressure of the straps on my wounds caused severe pain.  I vomited.

The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time.  I struggled without success to breathe.  I thought I was going to die.  I lost control of my urine.  Since then I still lose control of my urine when under stress.

The description is but a reminder of the dehumanization and torture of detainees that has become permissible and legitimate under the “war on terror.” Torture has been decriminalized. Impunity is normal. The CIA goes to court and escapes being held in contempt. The Justice Department under Obama refuses to fully investigate and prosecute former Bush Administration officials for torture or war crimes.

That reality shouldn’t diminish the fact that the federal judge claimed to value the work the ACLU had done, however this outcome does further affirm the reality that there are limits in the legal system in America. Some officials are shielded because they are part of certain agencies or they are too high on the totem pole to be found guilty. So, authorizing policies that justify the use of torture or engaging in the destruction of evidence of torture or “harsh interrogations” will not land you in jail. It will get you a book deal, an invitation to the Aspen Security Forum and maybe an award or two later on for keeping the country “safe.”

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Judge Sanctions CIA for Destruction of Interrogation Tapes

(photo: tantrum_dan)

A judge has sanctioned the CIA for the destruction of interrogation tapes but rejected a renewed motion from the ACLU to have the court hold the CIA and other individual officials like Jose Rodriguez in contempt. The ACLU considers the outcome a fairly significant success, despite the fact the CIA was not found to be in contempt by Judge Alvin Hellerstein.

Staff attorney at the National Security Project of the ACLU, Alex Abdo, reports Hellerstein awarded attorney fees for their efforts to expose the CIA’s destruction of the tapes. He did not think destruction of the tapes should have taken place. The CIA had violated his order, however, he would not hold the CIA or any individual officials in contempt.

The judge had already ordered the CIA to process documents describing the contents of the tapes and the rationale for the tapes’ destruction. The awarding of attorney’s fees was one of the remaining awards the court could grant to the ACLU.

Additionally, given the government’s penchant for over-classification, secrecy and non-cooperation or outright obstruction of Freedom of Information Act requests, Hellerstein recognized the “importance of the particular records request” in establishing a “public narrative” of the CIA’s torture program. Hellerstein credited request and litigation with uncovering those records, which now provide a history of one of the darkest periods in American history (that in many ways is not entirely over but continues under President Barack Obama).

Abdo noted it should not have taken eight years of litigation to get information released.

The ACLU invoked the Freedom of Information Act in 2003 and demanded records on abuse and torture of prisoners in overseas US detention centers. More than 100,000 pages, according to the ACLU, have now been released. Abdo says “a small amount of information” has not been released. There is a gap “in the middle” of “two ranges” of documents already processed by the government. But, for the most part, the ACLU has managed to get the government to release through FOIA what they wanted.  [cont’d.] (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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