Federal judge again declines to hold CIA in contempt for destruction of interview tapes

Federal judge again declines to hold CIA in contempt for destruction of interview tapes

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday again refused [decision, PDF] to hold the US Central Intelligence Agency (CIA) [official website] in contempt for destroying videotapes of detainee interviews following the events of 9/11 [JURIST news archive]. Judge Alvin Hellerstein previously ruled [JURIST report] on this issue in August. The case against the CIA, brought by the American Civil Liberties Union (ACLU) [advocacy website], sought a variety of forms of relief including an order requiring the individuals responsible for the destruction to be identified as well as an order that the agency be held in contempt. Hellerstein however, finding that the plaintiffs had already received sufficient remedial relief, denied all requests with the exception of attorneys’ fees and costs. In support of his decision, Hellerstein distinguished between civil contempt, the purpose of which is to coerce future compliance, and remedy past noncompliance and criminal contempt, which serves to punish the violator. In holding that these goals had already been achieved and no further action was required, the judge cited the CIA’s “massive production” of documents related to the videotapes’ destruction and its recent adoption of new protocols to insure against similar incidents in the future. Regarding the protocols, Hellerstein wrote:

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. 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.

Hellerstein also determined the ruling was appropriate given the possibility that the individuals responsible for destroying the tapes may not have been aware of the court orders requiring production.

In January, Hellerstein told the CIA that it must investigate the destruction of the interrogation tapes [JURIST report] and prevent similar incidents from happening in the future. Internal CIA documents [part 1, PDF; part 2, PDF; part 3, PDF] released last year reveal that the former head of the agency Porter Goss may have agreed to the destruction [JURIST report] of the interrogation videotapes [JURIST news archive]. According to redacted documents [text, PDF] filed in March 2009, 12 of 92 videotapes destroyed by the CIA [JURIST report] contained evidence of “enhanced interrogation techniques.” The US Department of Justice (DOJ) [official website] had acknowledged [letter, PDF; JURIST report] in March 2009 that the CIA destroyed 92 videotapes of high value terrorism suspect interrogations, in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications on why it could not release the information. The August 2008 order came in response to a December 2007 ACLU motion [text, PDF] that the CIA be held in contempt of court for not providing information on the tapes during a Freedom of Information Act (FOIA) [text] lawsuit [ACLU materials] brought by the organization in an effort to access government materials on the interrogations.