Earlier today, we appeared in court for a hearing on our motion to hold the CIA in contempt of the court for destroying 92 videotapes depicting torture of two prisoners, Abu Zubaydah and Abd Al-Rahim Al-Nashiri. (Coincidentally, the argument came on the nine-year anniversary of two of the “torture memos” that purported to provide legal cover for the brutal interrogation CIA detainees).
We argued that the CIA showed complete disdain for the court and the rule of law itself when it flouted several court orders to produce the videotapes and instead destroyed them. To provide some background, in September 2004, the court first ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody, which would have included at least 92 videotapes documenting the harsh interrogation of the two prisoners. Despite the orders, the CIA never produced the tapes or even acknowledged their existence. Unbeknownst to the public, the tapes were destroyed in November 2005, a year after the court’s first order, although the destruction was not publicly revealed until 2007. This motion came in our ongoing litigation under the Freedom of Information Act (FOIA) for records related to the detention and treatment of prisoners in U.S. custody abroad.
After a lively round of arguments, the judge sanctioned the CIA for its attempt to evade the law and will require the agency to pay our legal fees for costs incurred in bringing the misconduct to light. The judge also asked the CIA to publish its forthcoming document-destruction policies, which are being considered in response to our litigation to prevent this type of destruction from occurring again. Finally, the judge commented that the ACLU had played an “extraordinary” role in revealing to the public information about the abuse of detainees in U.S. custody. However, in his ruling from the bench, the judge failed to hold the CIA in contempt of court, leaving unaddressed our larger concerns about accountability.
Though the Court’s sanctioning of the CIA is a positive step for accountability, it falls short of the full accounting necessary before we can turn the page on the last decade. Far more disturbing than the CIA’s destruction of the tapes is the CIA’s authorization of the brutal mistreatment captured by the tapes. By destroying that evidence of criminal activity in direct violation of the judge's clear instructions, the agency's top officials aimed to deny the public and the courts the chance to hold them accountable.