Court refuses to hold CIA in contempt over video destruction

Aaron Mackey | Freedom of Information | Feature | August 3, 2011

A federal judge on Tuesday refused to hold the CIA in contempt for destroying video tapes sought as part of a Freedom of Information Act lawsuit designed to shed light on the agency’s interrogation program.

In a ruling from the bench, U.S. District Court Judge Alvin Hellerstein criticized the CIA for ignoring a court order requiring the agency to preserve the tapes, but stopped short of holding the agency in contempt.

Instead, Hellerstein sanctioned the agency and ordered it to pay the American Civil Liberties Union’s legal fees associated with bringing the contempt motion. The ACLU was seeking the contempt finding in ACLU v. Department of Defense, a FOIA lawsuit it began in 2004.

Holding a party in contempt is generally up to the discretion of a court, and it doesn't appear that Hellerstein believed it was warranted against the CIA. "I don't think a citation of contempt will add to anything," the judge was quoted as saying during the hearing.

Alexander Abdo, staff attorney for the ACLU’s National Security Project, said the ACLU is disappointed with the decision because the court failed to punish the CIA for destroying video evidence thought to have shown harsh interrogations of terror subjects.

“Yet again, the CIA will get away with denying the public of the best evidence of torture,” he said.

The ACLU sought the contempt finding after Hellerstein ordered the CIA to identify and produce records of the CIA’s treatment of prisoners overseas and the policies surrounding the operations. But, the CIA did not acknowledge that videotapes existed or were later destroyed until 2007, according to the ACLU.

The FOIA suit has led to the release of thousands of documents about the CIA’s interrogation program, providing a comprehensive view of the CIA’s activities during the detainment and interrogation of terror suspects.

But, despite the many documents that have been released, the ACLU is still fighting for access to several other documents, including the memo authorizing the CIA to build interrogation sites outside the U.S., Abdo said.

“It’s amazing how much information we were able to get, but there are still a number of important records being withheld,” he said.

Though the ACLU will continue to try to gain access to other CIA documents, Abdo said the Tuesday ruling creates a double standard in how courts approach contempt of court issues. If any other person or agency had disobeyed a similar court order, Abdo said a contempt finding would likely follow.

“Yet when the CIA walks all over the judiciary, so to speak, by disobeying a court order, the courts are still reluctant to enforce the law,” Abdo said.