Bush May Be Forced to Explain Destroyed CIA Torture Tapes

By John Dean, FindLaw.com. Posted December 18, 2007.

By my count, there appear to be no less than ten preliminary investigations underway, following the revelation that the CIA destroyed at least two sets of videotapes (containing hundreds of hours of footage) of "advanced interrogation" techniques being employed in terrorism investigations. In fact, every branch of government is now involved.

Within the Executive Branch, according to news reports, the CIA's General Counsel and Inspector General are investigating. The Department of Justice is investigating. On Capitol Hill, both the Senate and House Intelligence Committees are investigating. In addition, the House Committee on Oversight and Government Reform is inquiring as to whether the Federal Records Act has been violated. And Senator Joseph Biden, chairman of the Senate Foreign Affairs Committee, has made preliminary inquiries as well.

The Bush Administration has shown that it is not very good at investigating itself, so no one should hold their breath for the outcome of either the CIA or Justice Department investigation. And Attorney General Mukasey has dismissed an independent special counsel inquiry as very premature. The Democratic-controlled Congress could get to the bottom of all this, but one should bear in mind that our elected representatives have yet to get to the bottom of the political firing of U.S. Attorneys (although, to be fair, they did get former Attorney General Gonzales to resign). Today, Congress suffers from a degenerative spinal malady, and while they can bark, they appear unable to bite.

There are three court orders that may have been violated, but one in particular strikes me as a very serious problem for the CIA. Accordingly, we may well be in the unique situation in which a pending civil lawsuit might flush out some answers, and the federal judiciary might thus embarrass the other branches into actually taking meaningful action. I say "might" because the Bush Administration thinks nothing of stiffing federal court judges who seek information, and they probably figure they can tap-dance for the federal judiciary - along with all the other inquiries -- until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern District of New York, as a result of Freedom of Information Act requests by the American Civil Liberties Union, could well force the Bush Administration's hand. An order holding the CIA in contempt of court might get the Administration's attention.

The ACLU's Lawsuit, and the Order that the CIA Produce Documents

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

The CIA claimed that some of the relevant documents were the subject of an inquiry by the CIA's Office of the Inspector General, so its attorneys requested a stay of the judge's order and an extension of time to comply with the request for other documents. In February 2005, Judge Hellerstein denied the CIA's request for a stay, but he did not enforce the stay immediately when the CIA moved for the judge to reconsider his ruling based on additional evidence from the CIA's Director - as the CIA entered a full-court press to prevent the ACLU from getting anything.

This stalling action had been playing out, when news of the destruction of the tapes became public. Now, in the action before Judge Hellerstein, he ACLU has moved to hold the CIA in contempt of court, based on the Judge's September 15, 2004 ruling. It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the FOIA request and the judge's order.

Motion to Hold the CIA In Contempt

On December 6, The New York Times reported that the CIA had destroyed two videotapes of CIA detainees who were being subjected to "aggressive interrogation techniques" - more commonly called torture. The Washington Post soon reported that the destruction of the tapes had occurred in November 2005. CIA Director Michael Hayden publicly acknowledged that destruction, and soon confirmed this statement under oath in testimony to the House and Senate, saying that the destruction had occurred before he became Director.

See more stories tagged with: bush, cia, torture, white house, aclu, interrogation, video tapes

John W. Dean is a columnist for FindLaw and a former counsel to the President.

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