Article: CIA Refuses to Turn Over Torture Tape Documents to ACLU

The CIA claims the integrity of a special prosecutor’s criminal investigation into the destruction of 92 interrogation videotapes will be compromised if the agency if forced to turn over to the American Civil Liberties Union detailed documents identifying the individuals responsible for destroying the material, the reasons for the purge, and the torturous tactics depicted on the tapes, according to newly released court documents.

In a May 5 letter to U.S. District Court Judge Alvin Hellerstein, Lev Dassin, the acting U.S. Attorney for the Southern District of New York, said the Justice Department recently had discussions with prosecutors working on the criminal investigation into the destruction of the interrogation tapes and was informed that “the production of documents...would conflict and substantially interfere with the [criminal] investigation” into the destruction of the interrogation tapes.

“As the court is aware, the scope of the tapes investigation includes the review of whether any person obstructed justice, knowingly made materially false statements, or acted in contempt of court or Congress in connection with the destruction of videotapes,” Dassin's letter says. “The Government thus respectfully requests that [a previous court order demanding the CIA turn over detailed descriptions of the contents of the destroyed tapes] be withdrawn or otherwise stayed until the tapes investigation has been completed.”

Amrit Singh, an ACLU staff attorney, said the move is “a classic CIA delay tactic.”

In court papers, she said the government is using the criminal investigation “as a pretext for indefinitely postponing” its obligation to produce documents related to the destruction of the videotapes.

“The Government makes no mention of an expected timeline for completion of [Special Prosecutor John] Durham['s] investigation,” the ACLU’s said in court papers. “Nor has Mr. Durham provided a declaration in support of the Government’s position.”

Hellerstein seemed to agree. He pointed out in a two-page order that Durham had not stepped forward to state that his probe would be hindered if documents related to the destruction of the tapes were turned over to the ACLU.

In fact, in a March court filing, Dassin noted that a stay of the contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on Feb. 28 without a request for a continuation – signaling that Durham’s investigation was complete. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.

Last month, however, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison but Durham asked for a delay so he could question him about the tape destruction.

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA’s interrogation of “war on terror” detainees.

Hellerstein ordered the Justice Department, on behalf of the CIA, to file legal briefs by May 27 justifying the reasons for withholding the documents. He added that those papers should include affidavits, including a declaration from the special prosecutor investigating the tape destruction

Those documents “may include also any reasons why the identity of persons involved in the destruction should not be disclosed,” Hellerstein wrote in a two-page order.

Several weeks ago, Dassin revealed in another court filing that the CIA has about 3,000 documents related to the 92 destroyed videotapes, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration. The Justice Department said the documents include "cables, memoranda, notes and e-mails" related to the destroyed CIA videotapes.

In previous court filings, Dassin acknowledged that 12 videotapes, showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. Some of the videotapes predated the Justice Department’s Aug. 1, 2002 legal memo authorizing CIA interrogators to use 10 torturous methods against “high-value” detainees.

But it's unknown whether the interrogation tapes that predate the Aug. 1, 2002 "torture" depict "enhanced interrogation" techniques not yet approved by the Justice Department.

Last week, the CIA turned over to the ACLU documents that showed CIA interrogators at a secret “black site” prison provided top agency officials in Langley with daily "torture" updates of Abu Zubaydah, the alleged “high-level” terrorist detainee who was waterboarded 83 times in August 2002.

The documents included two sets of indexes [Part I] [Part II] totaling 52 pages that contained general descriptions of cables sent back to CIA headquarters describing the August 2002 videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.

The CIA and the Justice Department declined to turn over a more detailed description of the cables it’s field agents sent back to headquarters citing several exemptions under the Freedom of Information Act.

In a two-page letter accompanying the indexes, CIA Associate General Counsel John McPherson wrote that a “senior government official” would submit a declaration on May 22, “that more fully explains the justifications for withholding a more detailed description of the cables.”

The Justice Department intends to turn over additional indexes next month and on May 18 will produce a list of “all contemporaneous records and all derivative records” related to the destruction of the interrogation tapes.