ACLU in Federal Court Today Arguing for CIA Contempt for Destroying Interrogation Tapes

January 16, 2008 12:00 am

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NEW YORK - The American Civil Liberties Union today asked a federal judge to hold the CIA in contempt of court for destroying videotapes depicting the abusive interrogations of two detainees in its custody. The ACLU also argued for the release of other government documents relating to the abuse of prisoners including Office of Legal Counsel (OLC) memos authorizing the CIA and the Defense Department to use harsh interrogation methods, documents relating to the CIA Office of Inspector General investigations into prisoner abuse, and Defense Department videotapes believed to depict "Forced Cell Extraction" teams abusing Guantánamo prisoners.

"This administration has made a habit of withholding documents and destroying records that the public has a right to see," said Anthony D. Romero, Executive Director of the ACLU. "The right of Americans to know about their government's conduct is a central tenet of a free democracy. The executive branch should honor that right, not disregard it."

In response to Freedom of Information Act requests filed by the ACLU and other organizations in October 2003 and May 2004, the court ordered the government to produce or identify all records pertaining to the treatment of detainees in its custody overseas. The CIA flouted that order when, in 2005, it destroyed hundreds of hours of videotapes depicting the harsh treatment of Al Qaeda suspects Abu Zubaida and Abd Al-Rahim Al-Nashiri. On December 12, 2007, the ACLU filed a motion asking the court to hold the CIA in contempt. The ACLU filed additional legal papers Monday disputing the government's claim that the CIA was not required to preserve the tapes.

"The CIA's destruction of the videotapes depicts a flagrant disregard for its obligations under the Freedom of Information Act and for the court's order," said Amrit Singh, staff attorney with the ACLU Immigrants' Rights Project. "Its conduct in this case calls for a finding of contempt and the imposition of sanctions. The public is entitled to know how the White House and other federal agencies were involved, and on whose authority the tapes were destroyed."

Today's hearing also addressed the ACLU's request for the release of three documents issued by the Justice Department's OLC that are believed to have authorized the CIA to use extremely harsh interrogation techniques including waterboarding. The memos were improperly excluded from the government's response to another FOIA request filed by the ACLU in January 2005. The ACLU filed legal papers in October and November 2007 objecting to the omission of the memos and requesting their release.

In addition to the CIA videotapes and the OLC memos, the ACLU argued today that the CIA, the OLC and the Defense Department cannot withhold other documents relating to the treatment of prisoners in U.S. custody, including:

  • An August 2002 memo to the CIA issued by the OLC authorizing harsh interrogation methods;
  • An order from President Bush authorizing the establishment of overseas CIA detention facilities;
  • Documents relating to the CIA Office of Inspector General's investigations into prisoner abuse;
  • A March 2003 OLC memo to Defense Department General Counsel William J. Haynes that is believed to have parroted the claims of the infamous August 2002 Bybee memo that stated that treatment did not amount to torture unless it inflicted pain equivalent to "organ failure";
  • Videotapes depicting the use of force on prisoners held at Guantánamo Bay by "Forced Cell Extraction" teams; and
  • Redactions on numerous Defense Department investigative reports on prisoner abuse.

Today's hearing was part of a lawsuit brought by the ACLU in 2004 along with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace to enforce its FOIA requests for records concerning the treatment of prisoners in U.S. custody.

The hearing coincided with the scheduled testimony today of John Rizzo, Acting General Counsel to the CIA, in a closed-door House Intelligence Committee hearing on the destruction of the tapes.

In addition, the ACLU has called for an independent special counsel to investigate not only the destruction of the interrogation tapes but also the underlying acts of detainee abuse they most likely depict.

The ACLU's motion asking the court to hold the CIA in contempt is available online at:

The ACLU's memo requesting production of the outstanding OLC documents is available online at:

For more information on the ACLU's FOIA requests, including press releases and legal briefs, go to:

Singh and Alexa Kolbi-Molinas of the national ACLU and Melanca D. Clark of the New Jersey-based law firm Gibbons P.C. argued the case in front of U.S. District Court Judge Alvin K. Hellerstein of the Southern District of New York.

Other attorneys in the case are Jameel Jaffer and Judy Rabinovitz of the national ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; Lawrence S. Lustberg of Gibbons P.C.; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.

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