Government Agencies Were More Involved Than They Acknowledged

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NEW YORK - The American Civil Liberties Union today filed papers asking a federal judge to order the White House, the FBI, and other government agencies to produce all records in their possession relating to the destruction of two videotapes by CIA operatives in 2005 as well as transcripts and summaries of the tapes. The ACLU’s filing comes in the wake of revelations that administration officials took part in discussions with the CIA about whether to destroy the tapes, which show the harsh interrogations of two prisoners in U.S. custody, Abu Zubaida and Abd al-Rahim al-Nashiri. Today’s filing is an addendum to a motion to hold the CIA in contempt of court filed by the ACLU last week. 

"Serious questions remain about the extent to which the White House and other government agencies were complicit in the CIA’s destruction of the tapes," said Amrit Singh, staff attorney with the ACLU’s Immigrants’ Rights Project. "The public is entitled to know who authorized such a flagrant disregard for the rule of law and why nothing was done to stop it."

On December 12, 2007, the ACLU filed a motion asking a federal judge to hold the CIA in contempt of court, charging that the agency flouted a court order when it destroyed the tapes. In response to Freedom of Information Act (FOIA) requests filed by the ACLU and other organizations in October 2003 and May 2004, the United States District Court for the Southern District of New York ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody. Despite the court’s ruling, the CIA never produced the tapes or even acknowledged their existence. Earlier this month, in anticipation of media reports concerning the tapes, CIA Director Michael Hayden publicly acknowledged that the CIA had made the tapes in 2002 but destroyed them in 2005.

Recent revelations suggest that the White House and the FBI may be in possession of records that could shed light on the content of the tapes or the decision to destroy them. An article in the New York Times today reporting that administration officials were more involved in discussions about whether to destroy the tapes than the White House previously acknowledged suggests that the administration may be in possession of relevant documents. Additionally, an article in the Washington Post yesterday about the FBI’s involvement in the interrogation of Abu Zubaida raises questions about whether the bureau may have similar documents in its possession.

The memo filed by the ACLU today in the district court asks the court to order the White House and all government agencies to produce any copies, transcripts or other descriptions of the destroyed tapes, as well as any records relating to the destruction or contemplated destruction of the tapes in their possession. It also asks the court to prohibit the agencies from destroying any records relating to the tapes.

"The public has a right to know why these tapes were destroyed, and on whose authority," said Jameel Jaffer, Director of the ACLU's National Security Project.  "The government had a legal obligation to preserve the tapes and to process them under the Freedom of Information Act.  Reports that White House and Justice Department officials gave the green light for the destruction of the tapes are profoundly disturbing." 

Attorneys in the case are Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons P.C.; Jaffer, Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.

The ACLU’s memo is online at:
www.aclu.org/safefree/torture/33316lgl20071219.html

Related documents are available online at: www.aclu.org/torturefoia

Many of these documents are also contained and summarized in Administration of Torture, a recently published book by Jaffer and Singh. More information is available online at:
www.aclu.org/administrationoftorture