Judge Hellerstein Calls the CIA on its BS

Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into 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 was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

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.”

Gotta love a good skeptical judge.

Now, Hellerstein denied the ACLU’s request that he hold the CIA in contempt. But he did give them something worthwhile: the power of the court to get to the bottom of why the CIA didn’t turn over the torture tapes.

While Judge Hellerstein denied the A.C.L.U’s request to hold the C.I.A. in contempt of court for not producing information about the tapes, he said he was considering ways, including potentially subpoenas, to get to the bottom of why the C.I.A. has not turned the documents over to the A.C.L.U.

This is, IMO, very very important. With all the complaining coming from the leadership of HPSCI, they seem singularly uninterested in the relationship between the IG report and the torture tapes. If Hellerstein allows the ACLU to pursue why the CIA withheld information about the tapes (and the tapes themselves), it will ensure that the IG report becomes a central focus of the inquiry into the torture tapes. Which, in turn, may ensure that the inquiry itself goes further than Jose Rodriguez.

53 replies
  1. BlueStateRedHead says:

    What reason did he give to not hold them in contempt? Might it be helpful to have some ex. agency held in contempt so we remember that it happens in real law courts and not only those in the jurisdiction of Fred Thompson Sam Waterstone? IANAL but this does put a big burden on the ACLU.

    BTW, The Toddler-in-Chief and thrown his NIE on the floor and stomped on it. Who is going to make him take a time out?

  2. Neil says:

    Hellerstein didn’t fall for the “Which pocket is it in? Sorry, it’s in the one you can’t see” ruse.

    This case is a good example of why the radical right hates the ACLU so much. The ACLU uses the courts to affirm the rights of individuals when the state tries to assert its power in ways that deny individuals their rights. Although their work is not without inevitable unintended consequences, I don’t know where we’d be without them.

  3. FrankProbst says:

    Wow. The last thing in the world the CIA wants is another 9/11. The second-to-last thing they want is to have people hauled into court and forced to answer questions from the ACLU. Frankly, I think they would have rather been held in contempt. Then “the Agency” could’ve just taken its lumps and moved on. The possibility of subpoenas means that individual people may have to show up and answer questions, with the possibility of jail time if they’re caught lying. That moves the ball a little. Eventually, someone is going to say, “Look, my boss told me, ‘Whatever you do, don’t mention the videotapes.’” That’s evidence of obstruction, and all we have to do is work our way up the chain of command.

    • emptywheel says:

      Agree–we may be better off this way, particularly since this will put the IG report front and center.

      I’m particularly looking forward to a spook having to answer, under oath, WTF the IG investigation was started. Any bets it had to do with either 1) the death in CIA custody or 2) something related to the torture tapes themselves?

      • phred says:

        Or 3) a formal complaint from the FBI.

        IIRC (and I may not) there was a complaint from someone at FBI that CIA officials were impersonating FBI officials. And then of course, there was the fellow from FBI who threatened to arrest members of the CIA for their conduct. Which now that I think of it… if there is an inter-agency complaint like that, who investigates? The IG of one agency or another, or someone else entirely?

      • mainsailset says:

        …death in CIA custody

        Or, death while the tapes were churning away, recording torture that became a homicide.

  4. Mary says:

    I think Skinner is very lucky that the Judge is so far giving him the benefit of the doubt as to say that it seems he was “gulled” by the CIA, along with the court. Bc after all the lies that DOJ has thrown out to Congress and courts over the last few years, another possibility might have flickered through the Judge’s mind.

  5. bmaz says:

    As Gomer Pyle would say, “Well gull-eee”! I have to agree with the legal opinion of BSRH; I am not quite sure how the court stakes out this position, but per se bounces the contempt request. That is putting the cart before the horse’s ass. That said, I’ll take it.

    Mary – This was just what was on the record/what the reporter saw. There may have been a more pointed discussion with the parties in chambers or at the bench.

  6. ceo1 says:

    It very probable that tapes were made (I know “duh”). It very probable that copies were made. I would be more surprised if copies weren’t made than if they were. This whole thing could be strung out for long time, then the tapes could magically appear again.

    • watercarrier4diogenes says:

      Wonder how the CIA would feel about a search for any file ending in .avi, .mpg, .mp4, .mkv, etc… on any of their system or desktop machines?

      • readerOfTeaLeaves says:

        Made me spill my tea on the keyboard ;-))))
        Might we add .mov files to the list, please….?

        Looks like the judge in this case didn’t appreciate being insulted by the CIA’s missing homework/tapes. Good for him.

  7. BayStateLibrul says:

    Another Boggling Moment?

    See also: “Filipino Monkey” “Recycled e-mails”, “Bush Years”

  8. bmaz says:

    Alright. Thinking ahead here. What is the potential that we now see one of the head DOJ Bushlackies show up in front of Hellerstein claiming state secrets/national security? What then? What kind of security clearance does Hellerstein have in order to review classified material? I wonder if some consideration ought to be given to the appointment of a muckraking Special Master, with all the requisite clearances, and full judicial and investigative power of the court, to cut through the crap fast?

    • WilliamOckham says:

      Chances of Bushco showing up in court with a State Secrets claim – 90%
      I have no idea about the rest of your questions.

    • RodUnderleaf says:

      Hellerstein like Mukasey was put in place to protect the classified criminal act committed on 9/11.

      “This raises the obvious question about why, in the 9-11 terror case in which an Israeli security company is a key defendant and in which individuals from Israeli military intelligence are suspected of being involved, was Hellerstein chosen to preside over all 9-11 victim lawsuits?”


  9. TheraP says:

    How does an investigation like this proceed? With a grand jury hearing testimony or what?

    Just a thumbnail sketch here would be helpful. Or can a judge in effect conduct an investigation on his or her own, given evidence like this of deliberate withholding and destruction of evidence?

    Thanks for all the fascinating discussion and analysis – here and elsewhere.

  10. phred says:

    One other question for you EW, since both your memory and records are infinitely superior to mine… When this story first broke, I thought there were three detainees taped, one of whom was referred to as an “anonymous” detainee. More recently stories only reference the two named detainees. Were the early stories incorrect? Or has anonymous just dropped out of the coverage. I’m curious whether anonymous might be more central to the case than we have been led to believe (whether deceased, or relevant to one of the court cases, or something else).

    • emptywheel says:

      I think you’re confusing the reports on tapes the CIA FOUND (and ‘fessed up to Brinkema about) and those that they destroyed. AFAIK, they’ve only ever said the tapes covered two people, though they’ve left open the possibility there were more.

  11. Mary says:

    3 – Eventually they are all going to be saying that they are taking the fifth. One thing they may have a hard time saying – given that Hayden has put all the responsiblity within “the Agency” for the decision – is that there is any kind of privilege that attaches to prevent them from testifying.

    Of course, so far no one has really called Bush’s hand on his “I didn’t know anything about the USA firings” juxtaposed with his “USAttys can be fired by the President at will” and the murky assertions of privilege by players on behalf of a man who has yet to take responsibility for knowing anything about the firings, and yet also wants to keep aides from testifying because they were giving him privileged advice and assiting in the deliberative process.

    Still, Hayden has pretty much set up the Agency to be outside of a privilege protection IMO. Which brings things back to the fifth. Of course, at some point someone is just going to point out that America now has an emperor and it’s not just the emperor – but all his lawyers – who are naked. They will pretty much say at some point,

    yeah – so we disappeared people, including children – we tortured, we built coffins hoping to be able to bury alive, we waterboarded, we isolated-stripped-did repetitive anal probes-humiliated-beat-froze(even to death)-shipped elsewhere for torture-drugged-mentally tortured and terrified-sleep deprived to the point of lost minds —–

    so we did that – so what? The United States Department of Justice authorized, approved and even solicited all our actions, all the way. Heck, Larry Thompson as Dep AG even put his own name to the paperwork to send Maher Arar to Syria to be tortured.

    We did it all and so what? Congress knew – didn’t care, didn’t do anything. The American public has basically known, doesn’t care and besides, isn’t it kewl how we are making sure we limit the story to “real terrorists” and not 6 yo children and stray Germans and Canadians this way AND how we avoid discussing the deaths too. The courts have known, but they also know that when it is DOJ who chooses to conspire in and to the crimes, and when Congress doesn’t care, there will be no prosecution.

    When the prosecutors are vested in the crimes, there will not be any prosecution.

  12. Mary says:

    State Secrets/classification can go to the issue of what was in the tapes perhaps, but on the issues of a) why were they destroyed, b) why was nothing put in the investigation files – even in a classified state, c)why was the court not informed that some classified responsive materials had been destroyed, d) who made the determination that the materials were classified and what documentation exists now to indicate that they were classified and by whom and who also made the determination that no crimes were being classified in connection with the classification of the tapes, etc. — there’s a whole raft of things that someone can ask about that have nothing to do with demanding the content.

    Kind of like the testimony about the hospital show down not needing to reveal any classified information to get at the ACTIONS undertaken with respect to that information. It’s a matter of how tough the Judge is.

    In my dreams a Judge would refer to the Executive Order on classification and to US v Nixon and pretty much say that you can’t invoke state secrets to cover up a possible crime and the court can make the determination of whether it is a possible crime, for purposes of determining whether the information can be properly deemed classified, even without a criminal proceeding being filed.

    I don’t see that happening though.

    • bmaz says:

      Yeah exactly. And I see them saying SS applies to all the things you just discussed under the guise that those questions would divulge methods and practices. It is bullshit, but you see the same BS thrown against the EFF and CCR out here. And YES! sooner or later someone has to argue that, don’t they??

  13. Mary says:

    20 – basically what bmaz said in 21. Of course, State Secrets/National Security is a form of privilege as well, but I meant the kind of deliberative privilege assertions they are making for Miers and Rove etc. right now on the USAtty proceedings.

  14. JodiDog says:

    It is very unlikely that anyone except a CIA Lawyer shows up in court to answer anything.

    And the answers will probably go like this, at most.

    Given the clandestine nature of our efforts and the way that things sometimes are leaked, we decided to eliminate that possibility all together.

    Or “Command Decision” by the Clandestine Chief.

  15. emptywheel says:

    Incidentally, what would be wonderful is if the Judge called Mary McCarthy or maybe even Helgerson himself to testify. That’d get interesting might fast.

    • bmaz says:

      That is precisely the kind of “get down to it” type of investigation I was musing about @9 above. For just once, I would like to see one of these processes where they don’t tactically have their head up their ass.

  16. LS says:

    I think they held on to the tapes which depicted the torture methods, because they thought at the time that 1) they could get away with it legally if ever challenged because of the Bybee and Yoo opinions; and 2) because they thought they could use the tapes to prove that those tactics worked and could be used for instruction for fledgling torturers in training……but then Goldsmith found out about it and nixed the Bybee memo (do I have that right)..and started to put the breaks on hard…his testimony said that he felt that the opinions were not legally sound or something like that…he also blatantly stated that the Admin was really worried about war crimes for torture….then when word of torture came out more and more and the 9/11 commission wanted evidence, etc., they made a concerted decision (wink and nod from WH) to destroy the evidence and make Rodriquez take the fall ultimately. JMHO

  17. Mary says:

    25 – yep, I agree on that, but that will get into the issue of the conclusion under the treaty language and the OLC’s dispensations that Bush gets to decide what those words mean and separation of powers issue that a District Court, even if they are on board, will feel are a little hot to handle. ANd the posture will just be very weird – determining in a non-adversarial (no prosecution, no defense) setting vis a vis the commission of the crime, whether or not a crime has been committed for purposes of a third party’s ability to access information on the alleged crimes. It will be dicey if it goes there. But it will be sad if there is too much fear for anyone to ever confront the issue of not being able to stamp crimes “classified” and walk.

    The real way that gets resolved is by prosecution for the crime, but we don’t have that kind of goverment or justice system now.

  18. Mary says:

    29 – I really think that if there were anything on the tapes showing some dramatic instance of “torture works!” they would still exist today. I’m thinking a large part of why they aren’t still around is that they show a lot of bad things being done for not much worthwhile.

  19. rumi says:

    At least this judge is somewhat consistent. I get the impression that he is like many other dedicated career professionals that realize there is very little else that can be done by them. These folks make the information available to the public, and other pertinent powers that be, and quite possibly then watch the potential for accountability fade by others’ inaction.

    Judge Orders Release of Abu Ghraib Photos

    Published: September 29, 2005 12:45 PM ET

    NEW YORK A federal judge ruled today that graphic pictures of detainee abuse at Iraq’s Abu Ghraib prison must be released over government claims that they could damage America’s image. Last year a Republican senator conceded that they contained scenes of “rape and murder” and Secretary of Defense Donald Rumsfeld said they included acts that were “blatantly sadistic.”

    U.S. District Judge Alvin K. Hellerstein ordered the release of certain pictures in a 50-page decision that said terrorists in Iraq and Afghanistan have proven they “do not need pretexts for their barbarism.”

    The ACLU has sought the release of 87 photographs and four videotapes taken at the prison as part of an October 2003 lawsuit demanding information on the treatment of detainees in U.S. custody and the transfer of prisoners to countries known to use torture…

    …Judge Hellerstein said today that publication of the photographs will help to answer questions not only about the unlawful conduct of American soldiers, but about “the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs.” …

  20. Mary says:

    phred – I also think there have been reports that three different people have been waterboarded (KSM in addition to the two on the destroyed tapes) but I don’t think there has been an allegation that these tapes had KSM interrogation on them.

    • phred says:

      Thanks Mary. I’ve been having a hard time keeping the “lost” tapes straight from the “found” tapes all along. I’ve seen grade schools with better systems for handling “lost and found” items. Maybe I should send CIA a cardboard box to use for that purpose until they get their act together, eh? ; )

  21. randiego says:

    bmaz, has been decided about the troll? Can we change our votes yet?

    Maybe I’ve just been away, but I’m detecting a change in the style of commentary. Do we still think think this is the blonde basketball player with confederate ancestry that once complained about being felt up by TSA?

    • bmaz says:

      I dunno about troll. I have seen nothing lately out of it that has any redeeming value; as Stephen Colbert would say, she is dead to me.

      More importantly, things are looking up for the Bolts! Lookee here at the quality of the average Patriots fan.

      • Neil says:

        Lookee here at the quality of the average Patriots fan.

        Makes you glad all the Pats fans you know are above average, no?

  22. Jeff says:

    There’s a new AP piece by Yost reporting on the official White House line. So far it looks like te key White House line is this:

    “We have no evidence and we have no way of showing that any e-mail at all are missing.”

    Got that? No way of showing that any e-mail at all are missing. In other words, the White House is going to attempt to say nobody knows and nobody can know whether there are any missing emails.

    But as the article itself shows everything that has been already said to the contrary by the White House and the administration itself, I don’t think that line is going to last very long.

    • bmaz says:

      These clucks aren’t even trying anymore. This has been an issue now, at a minimum, since Fitzgerald asked for emails. What is that, two years? You either have them or you don’t. I f you have them, produce the; if you don’t, lets get on with deciding what to do about the crimes that have been committed by way of their knowing or reckless destruction. This is just plain stupid.

    • bobschacht says:

      “Got that? No way of showing that any e-mail at all are missing. In other words, the White House is going to attempt to say nobody knows and nobody can know whether there are any missing emails.”

      So let me see if I got this straight.

      First there are the things that we know we know.

      Then there are the things that we know we don’t know.

      But then there are the things that we don’t know that we don’t know.

      I believe that’s how some wiseguy over in DOD explained things once upon a time.

      Bob in HI

      • Jeff says:

        Basically exactly right – Fratto is taking the line, in part, that there is no way to have evidence of the absence of data. So nobody can know that there’s something to know about the absence of email.

        Which is wrong, but nevertheless.

        • klynn says:

          It’s a bit late for Fratto to be carting out that “alternate reality” explanation of “what missing email?” Amazing. Filipino Monkey, now this? I need to go put my boots on and grab a shovel.

  23. Mary says:

    51 – Exactly so – after all, having someone cry Uncle means that the arm twister actually is their Uncle, everyone knows that. That’s how it “works” You torture, then someone quickly says what you want to hear. Like how well torture worked to get the information fiction about Hussein’s al-Qaeda training camps.

    Sure was dramatic enough for me. Also for them:




    But I can see you are still in search of drama. The vicarious kind. Since limbs blown apart, lives sacrificed on the altar of tortured lies, and and orphaned, injured children in refugee camps haven’t quite satisfied your sense of drama yet, a blog isn’t really likely to sate your desires.

    • JodiDog says:

      As I understand it Mary, they got information that could be confirmed.

      As far as confessions are concerned, torture is useless.

      But to find the bodies, the people, the bombs, locations, times, etc., useful information can be obtained and verified.

      As for war, well let us quote Sherman: “War is hell.”

      As for my satisfaction, the truth, and facts will suffice.

      And ridding the world of AQ and OBL will help also.

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