Psyche, Science, and Society

Federal Judge Criticizes C.I.A. Handling of Interrogation Tapes

By Alan Feuer

A federal judge in New York said Thursday that he was “disappointed” in how investigators from the Central Intelligence Agency had handled videotapes documenting the harsh interrogation of detainees from Al Qaeda, adding that he was considering questioning agency officials who had watched the tapes about why they had made no record of them in their files.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was astonished that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though they were an important part of an internal C.I.A. review of interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that no record of them was kept in C.I.A. investigative files, Judge Hellerstein said.

“I just can’t accept it,” he said. “If it came up in an ordinary case, it would not be credible.”

The tapes are now the subject of Congressional hearings and form the basis of a separate criminal investigation seeking to determine whether agency officials broke the law by destroying them or by concealing their existence. They showed agency operatives using harsh interrogations methods on two Qaeda detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The hearing in New York stemmed from another matter concerning the tapes. The American Civil Liberties Union has filed a freedom of information request, asking the C.I.A. to produce information about the tapes and various other documents related to interrogation methods.

Judge Hellerstein said he was inclined to deny an A.C.L.U. request to hold the C.I.A. in contempt of court for not producing information about the tapes. But he said he was considering ways, including subpoenas, to determine why the C.I.A. had not given the documents to the A.C.L.U.

The main issue at the hearing was the C.I.A.’s contention that the tapes were immune to a freedom of information request because they were in the agency’s secret and sprawling operational files. Under federal law, documents in operational files are not subject to freedom of information requests, but documents in investigative files are.

Lawyers for the A.C.L.U. argued that even though the tapes were not physically in investigative files kept by the C.I.A.’s Office of the Inspector General, officials from that office watched the tapes at a clandestine location overseas, in 2003, as part of the internal review of interrogation methods. Judge Hellerstein said the mere fact that the tapes had been watched as part of the internal review meant that they were part of an investigation and, thus, subject to a freedom of information request.

In fact he had stern words for a government lawyer, Peter M. Skinner, who argued that the C.I.A. had searched the investigative files and, even though officials had found nothing related to the tapes, had therefore fulfilled its obligations to the A.C.L.U.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Lawyers for Detainee Refer In Filing to More CIA Tapes

By Carol D. Leonnig

Attorneys for a former detainee at a secret CIA prison said in a court filing this week that intelligence officials had falsely claimed in public statements that his interrogations were not videotaped, that all videotaped interrogations stopped in 2002 and that only a small number of CIA detainees were subjected to unusually harsh interrogation techniques.

The basis of the assertions was redacted from the filing by the Bush administration, under an unusually stringent security order that blocks the attorneys for Majid Khan from disclosing evidence of the alleged falsehoods or detailing how Khan was treated while in CIA custody.

Khan, one of 14 detainees whom the CIA secretly imprisoned before transferring them last year to the U.S. military prison at Guantanamo Bay, Cuba, has said he was systematically tortured. His attorneys at the New York-based Center for Constitutional Rights have been pressing for a court order to prevent the government from destroying evidence of his treatment.

“Inaccurate statements by senior intelligence officials about the tape destruction, and false statements about Khan’s experience in CIA custody, raise substantial concern that torture evidence in this case may be lost or destroyed absent a court order,” attorneys Wells Dixon and Gita Gutierrez wrote.

The three statements that Khan’s lawyers said were false were made by CIA Director Michael V. Hayden and unnamed intelligence officials quoted in news reports.

CIA spokesman George Little said yesterday that Hayden has said in speeches that the videotaping of interrogations stopped in 2002 and that about 30 of 100 CIA prisoners had required “special methods of questioning.”

“The agency stands by those statements,” Little said. ”I can’t speak to unattributed quotes in press reports.”

Khan’s attorneys, citing their top-secret security clearances and their agreement not to disclose classified information, said they could not comment on their court filings.

“We’re under an extremely restrictive gag order that in many ways is making our representation extremely difficult and certainly compromises the public’s ability to know what’s happening,” Gutierrez said. “We are challenging a state-sanctioned system of torture, the details of which the government is keeping secret.”

Gutierrez said she hopes the government will release more information about the detainees’ incarcerations.