Late yesterday, The New York Times broke a story that the CIA in 2005 had destroyed two videotapes of al Qaeda suspects being tortured in U.S. custody. The CIA claims the tapes were destroyed because they ''no longer had intelligence value'' and, should they be leaked to the press or public, would pose a security risk to interrogators and their families from retribution by al Qaeda operatives.
Back in October 2003, the ACLU filed a Freedom of Information Act request asking the government to release all documents and information pertaining to the treatment of detainees held in U.S. custody overseas. None of the agencies complied. We brought a lawsuit in district court against those agencies to compel it to comply with the request. In August 2004 the district court ordered those agencies to identify records that were responsive to the FOIA request, and to either produce them or explain in specific terms why they could not be produced.
But now it looks like instead of either releasing or explaining why they couldn't release these tapes depicting the torture and abuse of detainees, the CIA decided to destroy them.
Jameel Jaffer, director of the ACLU's National Security Project and one of the ACLU's lawyers in our FOIA lawsuit told The Washington Post: ''The CIA appears to have deliberately destroyed evidence that would have allowed its agents to be held accountable for the torture of prisoners...They are tapes that should have been released to the courts and Congress, but the CIA apparently believes that its agents are above the law.''
The ACLU supports Senators Kennedy and Durbin's call for an investigation into this gross breach of the law. Jameel says: ''Destroying evidence can be a criminal act in some circumstances, and torture is also criminal act. I think it's pretty clear that's why the tapes were destroyed in the first place.
Recently Jameel co-authored Administration of Torture, a book about the treatment of detainees in U.S. custody with ACLU Immigrants' Rights Program staff attorney Amrit Singh. Through documents released by the government through numerous ACLU FOIA requests, the book connects the policies adopted by senior civilian and military officials and the torture and abuse that took place on the ground in places like Abu Ghraib and Guantanamo Bay.
Also taking place yesterday, Senator Dianne Feinstein (D-Calif.) added an amendment to the 2008 intelligence authorization bill that applies the Army Field Manual to all government agencies, including the CIA. The Army Field Manual prohibits specific acts of torture and abuse, including waterboarding, and also authorizes an array of specific interrogation tactics.
Christopher Anders, senior legislative counsel for the ACLU Washington Legislative Office added, ''Based on yesterday's revelations concerning the CIA, this amendment to apply the Army Field Manual becomes even more crucial. But it's important to note that waterboarding and the other so-called enhanced interrogation techniques already violate federal criminal laws. Attorney General Mukasey should immediately appoint an independent prosecutor to investigate any criminal acts.''