Judge Refuses to Punish CIA for Destroying Torture Tapes

In a major setback for freedom of information, transparency, and accountability of government, a Federal judge has allowed the CIA to defy his own order and destroy 92 videotapes showing terrorist suspects being tortured.

In a suit filed by the American Civil Liberties Union, Judge Alvin K. Hellerstein of the U.S. district court for the southern district of New York refused on August 1 to hold the Central Intelligence Agency in contempt of court for destroying the tapes in 2005, a year after Hellerstein ordered the agency to produce or identify all records on the treatment of detainees in CIA custody.

The tapes recorded the interrogation, including waterboarding, of Abu Zubaidah, a suspected member of Al Qaeda who has been held for nine years but never charged with any offenses, and Abd Al-Rahim Al-Nashiri, accused of plotting the bombing of the U.S. destroyer Cole. The CIA did not admit that the tapes had existed until 2007, when The New York Times disclosed that they had been destroyed.

Federal prosecutors had already decided not to file charges against any of the CIA officials who destroyed the tapes. Then-CIA chief Michael Hayden said they were erased to protect the identity of CIA operatives. But the ACLU argued that the destruction “showed complete disdain for the court and the rule of law itself.”

Although Hellerstein declined to hold the CIA in contempt, he reproved the agency for evading the law and ordered it to pay all the ACLU’s legal expenses in the case. The judge told the ACLU representatives, “What you and your colleagues have done in getting this story to the American public has been extraordinary.” But he added: “Bottom line, we’re in a dangerous world. We need our spies. We also need surveillance.”

Even more, the public needs to know what its government is doing, and that its officials are not violating the principles they have sworn to uphold. The Obama administration would do well to replay the President’s own promises of transparency and full accountability.