ACLU – VCS Lawsuit Update
October 6, 2011 (Courthouse News) – The American Civil Liberties Union and other groups cannot sanction, or find out who is responsible, for the Central Intelligence Agency destroying at least 92 interrogation videotapes of suspected al-Qaida leaders, a federal judge ruled.
Co-plaintiffs include the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. Several government agencies are listed as co-defendants.
“Unbeknownst to plaintiffs, this court, and the world, between April and December 2002, the CIA had recorded, on a least ninety-two videotapes, interrogation sessions with two detainees, Zayn AI-Abidin Muhammad Husayn (‘Abu Zubaydah’) and Abd AI-Rahim Al-Nashiri,” U.S. District Judge Alvin Hellerstein summarized.
Ninety of the tapes related to Abu Zabayda, two to al-Nashiri. The interrogations reportedly took place in Thailand, and 12 of the tapes depicted so-called “enhanced interrogation techniques,” widely considered to be torture.
The ACLU submitted Freedom of Information Act requests in October 2003 and May 2004.
After the civil libertarian group filed a federal complaint, an anonymous cable sent from CIA headquarters asked that the tapes be destroyed.
Jose Rodriguez, serving as the CIA’s deputy director of operations at the time, responded: “DDO approves Ref A request to destroy [redacted] video tapes as proposed Ref A and for the reasons cited therein.” (Brackets in original)
A reply cable dated Nov. 9, 2005, confirmed that the tapes had been destroyed.
“At 5:48 p.m. the next day, November 10, 2005, an individual whose identity has been redacted sent an email to Kyle Dustin ‘Dusty’ Foggo, then the CIA’s Executive Director. The email’s sender apparently had been present for an ‘update’ from the Directorate of Operations, and the email recounts the internal discussions that had followed word that the videotapes had been destroyed,” according to the recent order.
“According to the email, that ‘[g]uidance,’ i.e., approval to destroy, had been ‘cleared by IG [Inspector General], DDO [Jose Rodriguez] and [redacted]‘ and then sent, and the videotapes had been destroyed,” the order states. (Brackets and redactions in original.)
The email’s author said that CIA general counsel John Rizzo was upset by the news, and a later email said that former White House counsel Harriet Myers was “livid.”
CIA Director Michael Hayden on Dec. 6, 2007, admitted to his employees that the agency destroyed the tapes in a statement.
“CIA’s terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002,” the statement read. “Under normal questioning, Zubaydah became defiant and evasive. It was clear, in the President’s words, that ‘Zubaydah had more information that could save innocent lives, but he stopped talking.’”
In 2008, Judge Hellerstein heard oral arguments on proposed sanctions, which were delayed for two years because Special Prosecutor John Durham told the court that contempt proceedings would interfere with a criminal investigation into the tapes’ destruction.
Durham announced that he concluded his investigation and would not press charges.
The judge revisited the sanctions motion on Aug. 1 and ruled against the motion on Wednesday.
“The evidence suggests that the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed,” Hellerstein wrote.’
“Nor can I say that the individuals who destroyed, or who approved the destruction, of the videotapes, were aware of court orders requiring identification or production of the videotapes,” he added. “However, the lapses of individuals cannot excuse the failures of the Agency. The CIA, qua agency, had the obligation to identify or produce the videotapes, and the CIA cannot be excused in its dereliction because of particular individuals’ lapses.”
Although the tapes can no longer be recovered, the CIA turned over documents describing them, according to the court.
“It is true that the interrogation videotapes, having been destroyed nearly six years ago, cannot now be produced,” he wrote. “But the CIA has remedied that failure by a massive production of paragraph 3 and paragraph 4 documents-records that describe the contents of the videotapes, corresponding in time to their creation, and records that relate to the videotapes’ destruction, in particular, the persons and reasons behind the destruction, corresponding in time to both the videotapes’ creation and destruction.”
New CIA protocols will stop the agency from destroying videos again, the order states.
“In my opinion, contrary to plaintiff’s view, the CIA’s new protocols would have a remedial and deterrent effect should a CIA official think to destroy documents,” he wrote. “The protocols should lead to better communication and more complete written records within the Agency and across the government when an issue of document destruction or retention arises within the Agency. The CIA’s new protocols should lead to greater accountability within the Agency and prevent another episode like the videotapes’ destruction.”
Those protocols are under seal.
Hellerstein added that he would not allow the ACLU to pursue depositions and further discovery to find out “if CIA officials destroyed the videotapes after they had notice of court orders requiring the videotapes to be identified or produced (or making a requirement to identify or produce likely).”
The CIA agreed to reimburse the ACLU for the costs of the FOIA request.
The ACLU did not immediately respond to a request for comment made after business hours.