Federal Judge Rebuffs ACLU, Denies Release of CIA Interrogation Memos
Mark Hamblett
New York Law Journal
October 1, 2009 -
http://www.law.com/jsp/article.jsp?id=1202434214667&Federal_Judge_Rebuffs_ACLU_Denies_Release_of_CIA_Interrogation_Memos A federal judge in New York on Wednesday refused to order the release of hundreds of documents concerning the use of enhanced interrogation techniques by the Central Intelligence Agency.
Judge Alvin K. Hellerstein, weighing whether to punish the CIA for having destroyed videotapes of interrogation sessions, said he was deferring to the judgment of the director of the CIA that the release of documents related to the interrogations would hurt the agency's ability to gather intelligence in the field.
Ninety-two videotapes of the sessions were destroyed after the American Civil Liberties Union several years ago sued in the Southern District asking Hellerstein to order their production under the Freedom of Information Act, (FOIA).
Wednesday, Hellerstein reviewed in camera a sample of 65 out of 582 documents requested by the ACLU before holding a hearing in open court.
The documents included cables from CIA field operatives to headquarters, as well as two 2005 memos from the U.S. Department of Justice Office of Legal Counsel, which is investigating the destruction of the videotapes.
These documents were ordered produced for his review as part of an ongoing contempt proceeding against the CIA for flouting the judge's earlier order to produce the videotapes.
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Hellerstein tentatively ordered the release of a six-page record of written notes of a CIA field officer discussing the interrogation videotapes with a CIA attorney. But the judge nonetheless gave the government two weeks to renew its argument on why those documents should not be disclosed.
Assistant U.S. Attorneys Sean H. Lane and Heather K. McShain met with Hellerstein Wednesday for more than an hour for his review of the classified documents in both redacted and unredacted forms. Those documents included the 2005 Office of Legal Counsel memos, which described the enhanced interrogation techniques, and other documents that described the contents of the destroyed videotapes.
In the end, the judge also allowed the CIA to continue withholding a copy of its standard interrogation policy and documents discussing some of the methods used.
Hellerstein rejected Abdo's plea to "sanction the government's ongoing violation of the law."
The judge said, "I have some reluctance in basing a ruling whether something should be disclosed or not disclosed based on whether it is illegal or not."
Hellerstein said he had "Very strong personal views on the subject but they need to be cabined" given the role of courts and the responsibility of the executive branch to protect the nation.
"The director of the CIA has made a strong representation about the needs of the CIA" to do its job and gather information, he said.
But Abdo replied that "deference is particularly unwarranted," in that "we are here today because the CIA destroyed the documents in violation of the court's order."
The litigation is not over, Abdo said ..............