Despite a court order, the Central Intelligence Agency (CIA) destroyed hundreds of hours of video tape showing the alleged torture of two terror detainees, and now the American Civil Liberties Union (ACLU) is asking a New York judge to punish them for it.
In a case being heard Monday, attorneys for the ACLU will argue that the agency, and former deputy director Jose Rodriguez in particular, should be held in contempt of an order to preserve records responsive to a Freedom of Information Act (FOIA) request filed in 2004.
"The record indicates that far from an innocent mistake, Rodriguez ordered the tapes destroyed to cover up evidence that 'would make us look terrible' and be 'devastating' to the CIA," the ACLU's filing (PDF) argues, quoting Rodriguez emails obtained through FOIA requests. "Indeed, Rodriguez weighed the 'heat' that would come from destroying the documents and concluded that it 'is nothing compared to what it would be if the tapes ever go into public domain.'"
As many as 92 tapes of terror war captives being tortured by CIA operatives were allegedly destroyed. Officials suggested these recordings depicted torture sessions with terrorism suspects Abu Zubaydah and Abd al-Nashiri.
Along with the tapes, detailed records of the CIA's so-called "torture flights," showing the planes, destinations and even the passengers, were also said destroyed.
The destruction of these records was revealed by then-CIA Director Michael Hayden in Dec. 2007, who said the decision was made because the videos posed "a serious security risk" to the agency.
The ultimate decision to destroy the torture tapes was made by Jose Rodriguez, the former Director of the National Clandestine Service. The Department of Justice (DoJ) said in Nov. that Rodriguez would not face charges.
U.S. Attorney General Eric Holder announced in June that after a years-long investigation, the DoJ would probe the deaths of two prisoners who allegedly perished in the CIA's custody. In doing so, he said that it was also dropping possible further inquiries into allegations of torture by CIA agents.
The ACLU's filing asks the court for a civil penalty against the CIA, which could include reimbursement for their "significant resources" expended over the years pursuing evidence of torture through records requests.
"By deciding to destroy 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," ACLU Deputy Legal Director Jameel Jaffer said in an advisory. "The only way to ensure that the torture policies are not resurrected in the future is to hold officials responsible for acts of torture in the past."