CIA must be held accountable for illegal interrogation and destruction of evidence Commentary
CIA must be held accountable for illegal interrogation and destruction of evidence
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Amrit Singh [Attorney, American Civil Liberties Union (ACLU)]: ""Ours is a government of laws." "No one is above the law: not the executive, not the Congress, and not the judiciary." With these words, on September 15, 2004, a federal judge in New York ordered the CIA to produce or identify all records responsive to the ACLU's Freedom of Information Act ("FOIA") requests for records related to the treatment of detainees apprehended after September 11, 2001 and held in U.S. custody abroad.

The CIA's destruction in 2005 of hundreds of hours of videotapes of harsh interrogations–records clearly responsive to the ACLU's FOIA request–was a flagrant violation of the Court's September 15, 2004 order, and a clear indication that the CIA considers itself "above the law," accountable to none. The ACLU moved last month to hold the CIA in contempt of court for its destruction of these records. In response, the CIA argued that the videotapes were not "responsive documents" within the meaning of the September 2004 order because they were "operational files" and therefore exempt from CIA search, review and retention under the CIA Information Act, 50 U.S.C. § 431(c).

But in December 2007, CIA Director Mike Hayden himself admitted in a public statement that the CIA's Office of Inspector General (OIG) had viewed the tapes in 2003 as part of its look at interrogation and detention operations. That admission, along with other statements contained in the CIA's court papers, makes it amply clear that the tapes were subject to FOIA search and review under the "investigations" exception of the CIA Information Act, which requires the agency to search for information concerning CIA OIG investigations into impropriety and illegality.

The CIA nonetheless argued before the Court that the tapes were not subject to FOIA search and review under the "investigations" exception because they were not viewed not as part of an OIG "investigation" but as part of a so-called "special review." The CIA can call the OIG's viewing of the tapes in 2003 what it wants, but the CIA's own description in its court papers of the so-called "special review" shows that the "review" walks and talks like an "investigation."

Semantics will be of little avail to the CIA for evading accountability for thumbing its nose at the law. It is time for the agency to be brought to task not just for the destruction of the tapes but also for its use of the illegal interrogation methods depicted on those tapes."

Amrit Singh is one of the lead lawyers in the ACLU's Freedom of Information Act litigation concerning the torture of prisoners held in U.S. custody abroad. She is also co-author (with Jameel Jaffer) of Administration of Torture (Columbia Univ. Press 2007), a book about the abuse of prisoners in U.S. facilities overseas.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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