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TechnoratiThe Investigations of the Destruction of CIA Torture Tapes
How An ACLU Lawsuit Might Force the Bush Administration To Reveal What Actually Happened
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.
Passing over who did what and why to focus on the situation in Judge Hellerstein's courtroom, on December 12, of this year the ACLU filed a motion to hold the CIA in contempt of court. The ACLU makes a powerful case that the CIA violated Judge Hellerstein's order of September 15, 2005 - issued before the CIA's apparent destruction of the tapes.
The Court's Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.
It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein's later orders only served to reinforce that obligation, as a string of precedents makes clear.
What Is Next?
In addition to holding the CIA in contempt for destroying tapes that were subject to an FOIA request that surely reached these videos, the ACLU has also requested that the CIA provide some public disclosure of the facts surrounding the destruction of this material. In addition, the ACLU has requested permission to take depositions of those involved, under oath, and has requested that the court issue a further order barring the CIA from destroying, removing, or tampering with other records that are the subject of the ACLU's FOIA request. Finally, the ACLU is seeking costs for its expenses and such other relief as the Court may deem appropriate.
How this is resolved depends on one factor: Judge Hellerstein. Doubtless, the CIA will respond with papers proclaiming its innocence, and no doubt denying that it was aware of the destruction. However, this is where the Judge himself - if he does not give the ACLU discovery powers - may demand that the CIA tell him what they have been up to, given his clear prior orders.
As I have written before, judges appointed by Republican presidents tend to throw cases that might embarrass Republican presidents out of their court, as quickly as they can figure out how to do so. Federal judges appointed by Democratic presidents, fortunately, do not tend to cower when either Republican or Democratic presidents are involved. A judge ends up with a case like this through a random selection procedure; in this case, the CIA happened to draw a Judge it cannot intimidate, which makes it interesting.
More on Judge Alvin K. Hellerstein, Who Issued the Videotapes Order
Judge Hellerstein was appointed to the federal bench by President Bill Clinton in 1998. An editor of the Columbia Law Review during his law school years, he started his legal career in the Judge Advocate General (JAG) Corps of the Army in 1959-1960. An experienced litigator with a prestigious New York City law firm, he is a highly-respected judge. He works hard, is fair, and is savvy.
He is also a nightmare for the CIA in a case like this, because on June 3, 2005 he ordered the release of four videos from Abu Ghraib, along with dozens of photographs - not withstanding an effort of the government to suppress this material from ever becoming public.
Judge Hellerstein appears to have no tolerance for torture. Unlike his former colleague and now-Attorney General Michael Mukasey, who still is not clear that waterboarding is torture, one does not have the sense that Judge Hellerstein suffers from such confusion. While Judge Hellerstein is going to appropriately protect the sources and methods of the CIA, if any judge is going to get to the bottom of this destruction of these records quickly, this is the judge.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
© 2007 FindLaw.com
40 Comments so far
Show AllI think all of the evidence just burned up.
Time for the CIA to be re-defined.
Scary what it has become.
9/11 dots leads to intel
as main suspects of
'terror' attacks
Wasn´t there a Terrorist Trial Where The CIA held back this same information from the defense team ?
Doesn´t that mean that Zacarias Moussaoui gets a "Go Free" card.....It is called tampering with evidence.
The CIA and Carlysle Group have so many independent companies working with ex CIA people that Congress will never figure out where the money goes and who is doing the killing for who.
The B52 Nuclear Waepons Shipment of August 29,2007 has 9 related deaths of DOD and Air Force Personnel. The causes of death are mysterious, from suicides to single car accidents.
Oh, that pattern started with the Kennedy assassination and 8 mysterious deaths of possible witnesses to today the Palfrey Sex Scandal where one prostitute with a PHD and grandchild living at home hung herself over a possible $500 fine, (Not !) and to an assistant U.S. Attorney being murdered and a District Attorney disappearing with his computer being found minus the hard drive and he has never been found (I don´t think.)......
Oh, did you hear about the 10 microbiologists that were working on the government anthrax program and their mysterious deaths ?
The "Political Elite" have a nasty way of protecting themselves.
There is no doubt that World Trade Center #7 was a controlled demolition and because of that everything else that happened on September 11, 2007 should be investigated. Yet, who is independent enough to do the investigation with subpoena power? I know those 8 fired U.S. Attorneys could form a Task Force of fired (2001- to present) CIA and FBI people.
Remember "Operation Cyclone" the joint American CIA/Pakistani ISI recruitment of over 100,000 Islamic Militants from 43 countries. That operation went on through the 90´s and Bin Laden was a key CIA financial figure.
The destruction of the CIA torture tapes is the "smoking gun" in the scandal that will finally bring down the Bush administration and be remembered as "WATERBOARD-GATE."
How many years jail will the CIA get, if it is found to be in contempt of court? And if it is absolute nonsense to talk of putting the CIA in jail, what else can you threaten it with.
DREAMER TOO -- Soooo much good comic material.
And then there's the part where the CIA is (relatively) good, for outing the shrub.
Maybe they've been watching (too much) Jack Bauer "doing it" iconoclastically to the corrupter gov't officiously evil wonks, so they're empowered to tilt a few of the shrub's favorite windmills?
Judge Sirica, who took down Nixon, was appointed by Dwight Eisenhower, a Republican. Of course, a Republican then and a Republican today are two different animals. And that goes for Democrats as well. After all, during Watergate, we had a Democratic Congress doing it's job instead of whoring after corporate money. I can't call today's Democratic Congress spineless, because they have plenty of spine when it comes to attacking progressives. Like all well trained dogs, they just don't bite the hand that feeds them.
The corporations have stolen our country, as Eisenhower warned they would in his 1961 farewell address. And it is up to us to figure out how to take it back.
"Hopefully that asshole will be added to the criminal indictment along with chimpy, the dick, the toothy bitch, porky the pig, the rat and skullitar" (mcpete)
"There's a lot not to like .."
(redjeff)
Ha!
Who admitted what? Do they have a long track record as a reliable witness?
This is a good distraction that will not lead directly to impeachment. There is little to investigate - they admitted it.
Now it becomes quite clear why that rat gonzalas resigned when he did. Had he remained ag when it was discovered that evidence of torture (which he approved of)was destroyed, congress would have all of the ammo needed to get to the bottom of this. With that rat out, now chimpy can use another excuse, the jerk-off macaskey has to have a chance to proceed in such a way that he determines is proper. The timing is perfect. Hopefully that asshole will be added to the criminal indictment along with chimpy, the dick, the toothy bitch, porky the pig, the rat and skullitar
The CIA had video of the destruction of the torture video, but they destroyed it to protect the identity of those who destroyed it. But, not to worry, the CIA has video of the destruction of the video, of the destuction the torture video, with the faces blurred out to protect the identity of the agents involved. In a few decades they will release the video to the public, along with some more of the family jewels!
Thank you, John Dean!
Hope springs eternal.
"The CIA has been out of control since its inception. Truman didn't even want it, so they formed without his consent. They solicited money from finance capitalists (I don't know if Prescott Bush was included) until they were finally official and funded."
You've not touched upon the 'half of it' (nor, to be sure, has the CIA, itself). The CIA was not just 'funded by finance-capitalists' -- most in it were out of that 'fine-sector' (and most early-and-recent Directors/managers from 1-or-2 select Wall-Street law-partnerships). Even when still the nascent-OSS, it consisted of those selfsame Eastern-elitists -- Zionistic (if Goy) cognoscenti, 'secret-society' quislings, and well-Familied operatives of the Rothschild/Rockefeller/Morgan/Harriman/BushCo/Illuminati-cum-affiliated/etc./et al -- down-to but inclusive-of the likes of the late Julia Child and up-to the vaunted in-crowd/Realist likes of the Dulles-brothers (and more-recently, the almost so-vested Gates -- Bush-41 betwixt). War-profiteers, banking-scam fascists, and sycophants bribed-or-blackmailed into 'turning real-wealth into financial-wealth', and then directing that upwards to their puppet-masters -- the real 'crime-families' of America (those bereft of any 'honor-among-thieves' still guiding some of their suzerainty Mafia-marionettes).
As tellingly said in "The Good Shepherd": "We Italians have the family and the church. The Irish have their homeland. The Jews have their traditions. Even the Blacks have their music; what about your people Mr. Carlson?" The response from the purloined-and-amalgamated Skull-alumni Angleton character was: "We have the United States of America, the rest of you are just visiting."
That just-about sums it all-up, doesn't it?
The Intel-insiders who allowed these particular-tapes to become 'public', if hurriedly 'gone' produced them for this exact desired-effect. These are NOT any that the CIA has in great-number and secure, depicting the 'worst' of their 'protective if disturbing-work'. No, to the contrary, these tapes are like the Abu Ghraib photos -- intended only to 'skate the line' of Public-permissibility and allowance (the kind of nonsense and PR/'mind-control' that Dershowitz now so-blatantly involves himself with). A further conditioning so as to hide what REALLY is-and-has been going on -- and far/FAR worse; I assure you.
And, even the ACLU seems to be 'taking the bait'...and inadvertently 'adding to the Dissonance' intended.
Thank you for a great well written artical. Bottom-line, wihout accountablity you have nothing, just smoke and mirrors. Give credit were credit is due, we should all thank the Bush administration for a peak under the congressional rock where Americas real enemies live.
I see a steady decline in U.S. power and prestige and influence until we are as irrelevant as Britain has become. They were judged by God and found wanting and he removed them from world domination. I see the same thing happening to the United States. God Bless America! I say God judge America!
I'm more optimistic -- my read is that most people are wising up, and growing weary of this, but the mainstream media prevents any real alternative from gaining popular traction.
If the people voted their own class interests, they'd have a government which answered to them. Assuming that voting remains a viable expression of the popular will, and that leadership is actually a solution (rather than the problem).
Most of this country could care less how corrupt this Administration is. It's really sad that we as a nation have completely lost our moral compass since these people have come into office. They are destroying the moral fiber of this country. They have committed crimes and thumbed their nose at the law since the day they took office. It's like the old saying goes 'one rotten apple in the barrel eventually rots the whole barrel'. I wished I could say the problem will be solved with the next election. But, I don't think it will. That's why I think it so pressing to impeach this President while there is still time. Because the problem isn't going to be solved until this kind gets it though their head they aren't above the law. The Executive Branch of government doesn't shield them from obeying the same laws we are bound by.
"While Judge Hellerstein is going to appropriately protect the sources and methods of the CIA, if any judge is going to get to the bottom of this destruction of these records quickly, this is the judge."
Here com' de judge . . . finally.
There's a lot not to like about the CIA, but they have often been at odds with The Bush administration about the politicization of intelligence.
The CIA only murders foreigners, so I think Hellerstein is safe from them. Maybe someday he could even be named to the Supreme Court.
Yeah, like the courts can get the totalitarian Bush/Cheney regime to do anything!
Who is going to stand up to them and enforce the law? They are the law.
The dumb ass greedy American public created this mess themselves. They don't give a shit about justice or fairness.
That's why we need to ultimately aim for the hundred victories, not the one. The one victory can be lost, accidented, misfortuned. A single point of failure. If we win the hundred, there will be no such singular failures, eggs all in one basket, etc. If all hundred, even 50 or 10, have a misfortune, then there can be no doubt. Not the whimsy or caprice of bad luck, but something else. No doubts in the minds of everyone.
We need to identify that 100+ bloc of progressive patriots. Who has the courage? I sure wouldn't run alone, but I'd run as one of them.
If by some miracle Kucinich could win, he would die like Abbie Hoffman, JFK, RFK, JFK Jr. and Paul Wellstone and no one would ever suspect the spooks.
The reason for Democratic curvature of the spine is simple: someone is still out there with weapons grade (from Ft. Dietrich) Anthrax. As simple as that. Hail Kucinich!
Yeah, Stuart Bowen
To plantman- it's possible Hellerstein will die of a sudden event. Or he could get cancer of the brain, like Casey, and have an operation that makes him unable to speak. Or he could be investigated for wrongdoing-like the inspector general in Iraq, who called attention to corruption and is now facing charges against him. I think his name is Bowen?
The CIA has been out of control since its inception. Truman didn't even want it, so they formed without his consent. They solicited money from finance capitalists (I don't know if Prescott Bush was included) until they were finally official and funded. But that wasn't enough for them and they started siphoning money from the Marshall Plan. And don't forget the drug money. The OSS, predecessor of the CIA made deals with the Mafia to fight the unions in the US and the communists in Italy. The CIA has been involved in drugrunning everywhere its been.
Kennedy threatened to abolish the CIA. He fired Dulles.
The CIA and the mafia killed Kennedy and they put Dulles on the Warren Commission!
(Shades of putting Kissinger on the 9-11 commission).
We need to abolish the CIA, but they have a life of their own, unaccountable to the US government.
Not that these weasals we have in the congress and the white house are trying to hold them accountable. I'm sure that Cheney was in on the 9-11 plot
I'm looking to see Judge Hellerstein's obituary soon. Isn't that what happens to those who pry too deeply? A "sudden" heartattack perhaps? Onset of a rare and particularly virulent type of cancer...stroke! Plutonium poisoning.
I'm curious about whatever happened to Hoover's habit of getting blackmailable information on people to keep them from thinking independently. That practice, and apparatus, just disappear when he retired?
If not, then there's no possible way politicians can get rid of the CIA.
Former President Jack Kennedy, inherited the invasion of Cuba by the CIA. When he refused to support the invasion, he was simply done away with, assasinated. The CIA is bigger than the spineless congress, it is a tool of the Bushees.
"Bush the first" was in Charge of the CIA during a period when the established order was in need of this out of control agency.
If Bush number two used CIA information to assasinate Plame, is anybody concerned?
Wasn't this Treason? or have the rules changed?
Eliminating the CIA and the re-named School of the Americas will be a great start. There is ONE person who might get that job done, Dennis Kucinich. He will have a lot on his plate to deal with, but I think he's the man for the job. So many heads are going to roll that its going to look like an explosion in a bowling ball factory.
This is a joke. If you get pulled over for DUI and you refuse to do the breathalyzer test, you are guilty. Period.
Same goes with destruction of evidence. This should be an automatic jail sentence for everyone involved. As in: go directly to jail; do not pass Go, do not collect $200. Automatic 1 year in prison, and then we'll think about it. I consider this to be a trial run for the "Great Whitehouse Shredding Affair of 2008," that is really gearing up now and will be humming right along come elections. It will take lawyers decades to begin to comprehend what these criminals have done.
And maybe it's just me, but is it not a profound travesty that the author of this article was the very man who advised Nixon on the Watergate affair? No doubt he is sensitive to the power of the judiciary, but I think it is extremely dubious to claim that the ACLU is going to get anywhere with this administration. In fact, all evidence is that the ACLU has been rendered largely ineffective and has done little to nothing to stop the destruction of the Bill of Rights.
whatever happened to the zillion tons of EVIDENCE that were carted off to china by Ghouliani or destroyed by the FBI? Is anybody launching an investigation into obstruction of justice, mayhem and indiscriminate killing of american citizens? The political timber of BOTH parties has decayed beyond redemption. It is just awaiting a storm to tilt over and, unfortunately, crash upon our innocent, powerless heads.
I heard an ex-intelligence officer on NPR defending the CIA. He said it was a good thing that somebody destroyed the tapes because if they ever had been viewed publicly, (and I am paraprhasing here) all hell would have broken loose. Just imagine what would have been the response of Islamic fundamentalists when they could actually see Muslims being waterboarded! The Danish cartoons would have been small potatoes compared to the seething reaction of Muslims [and any other compassionate/justice minded persons who viewed them].
BTW, maxpayne, LOL on abolishing the CIA. Although I agree with you that the CIA's meddling activities have long been offensive, running diametrically counter to what the US used to stand for in the world. Nevertheless, the CIA has its steel-toed foot in the door of our government and will not be readily excised.
Who gives a flying fuck anymore? It's long past time to ABOLISH the CIA instead of worry about the GOD DAMN MOTHERFUCKING tapes like a bunch of LOSERS !
10 investigations? Unless they pull some shock doctrine stunt and declare martial law, the oiligarchy stands to go to the High Crimes Tribunal...not.
Thank you, Mr. Dean, for an excellently written article outlining the ACLU's case so clearly, and for your thoughts on Judge
Hellerstein's positions. This actually gives me some hope today that we will eventually get to the bottom of this sordid mess. Unfortunately, I foresee the CIA and the Justice Dept. doing all they can to keep this genie in the bottle. After all, how many years has it been since the ACLU initially made its request? Here's hoping that this good judge will see the necessity for expediency.
"no less than ten preliminary investigations underway"
I imagine that the White House will find a way to subvert there investigations or take the "teeth" out of them. Private interviews with no one under oath is where this will end. I wish I had a crystal ball to see if anyone remembers these "investigations" in six months much less when the election rolls around.
This administration is above the law. And until congress is willing to play hardball, that's where it will remain. These people should be in jail just for the Valerie Plame affair. Or the corruption that has accompanied Katrina and the Iraq war. How much as Cheney gained from Halliburton's no bid contracts? How much did Rumsfeld make off of the Asian bird flu vaccine? How much did Blackwater contribute to Bush? What's a little waterboarding? When the whole administration is in the toilet.
One judge can change the course of history. Sirica.