Judge Refuses to Sanction CIA for Destroying Torture Tapes

Source: Wired

A federal judge won’t hold the CIA in contempt for destroying videotapes of detainee interrogations that included the use of a torture technique known as waterboarding, ruling instead Wednesday that the spy agency merely committed “transgressions” for its failure to abide by his court order.

Punishing the Central Intelligence Agency, U.S. District Judge Alvin Hellerstein of New York ruled, “would serve no beneficial purpose.” (.pdf)

Hellerstein wrote that CIA officials responsible for producing the tapes in a Freedom of Information Act lawsuit might “not have been aware of the videotapes’ existence before they were destroyed.” The judge also said officials who ordered the tapes’ destruction in 2005 might not have been “aware of court orders requiring identification or production of the videotapes.”

The American Civil Liberties Union, which brought the long-running FOIA case and asked for a contempt finding, had requested that Judge Hellerstein order depositions and discovery to ascertain if CIA officials destroyed the 92 videotapes of post-9/11 interrogations of terrorism suspects after they had notice of court orders to produce them.

Read more: http://www.wired.com/threatlevel/2011/10/cia-dodges-contempt/

*Hellerstein wrote that CIA officials responsible for producing the tapes in a Freedom of Information Act lawsuit might “not have been aware of the videotapes’ existence before they were destroyed.” The judge also said officials who ordered the tapes’ destruction in 2005 might not have been “aware of court orders requiring identification or production of the videotapes.”*


K/R

"Hmmm....OK, case dismissed!"

:wtf:

in fact.

One is presumed to know the law that a court order must be obeyed. But that wasn't the issue.

There is no such presumption that everyone who might have relevant information knows a court order had been issued - especially when they weren't there.

And there is no presumption that those receiving the court order knew of the tapes - especially since the tapes were overseas while the court order was in a US courtroom.

This is about sanctioning an agency, not a person.

Any organization, public or private, is accountable for knowing the organization has a legal obligation to produce documents and to make sure the documents remain available for production. Doesn't matter if it is CIA or IBM.

As to government agencies, there are laws about destruction of government property and government records, even when not under court order.

I'm sure it's wild coincidence that torture tapes were destroyed anyway--and no one in the official SPY agency of the United States of America can figure out who did it. Please.

Not holding the CIA responsible is pure bullshit.

what precisely would you do - have the US Marshals cart off their building and hide it somewhere? He cannot cut their budget or personnel authorizations. Those are inherently political decisions.

The judge knows that the activities of federal agencies are directed by the President and overseen by Congress - and that courts do not have unlimited powers any more than the other branches of government.

In other cases, hasn't the rule always been that a corporate party and its agents are bound by an o order of the Court that has been properly served on the duly authorized legal agent of the corporation. As a matter of law, hasn't the rule been that all agents to the corporate entity have notice when the legal authorized representative for the entity has been served. That is the law....and as a matter of fact, the duly authorized legal representative for the CIA was properly served...and yet, here, the Court makes an exception TO THE LAW.

Here the Court is acknowledging:

1. The CIA was a proper party to litigation, having been properly served, and is properly before the Court regarding the disposition of interrogation tapes;

2. Pursuant to a hearing on the issue, the CIA as a necessary party, having submitted to the jurisdiction of the Court by filing pleadings in the case, having had full opportunity to object and appeal, and having been present at the hearing, was ordered by a Federal Court to maintain the integrity of this information; (the very subject matter of the litigation is the material at issue)

3. The Court is acknowledging that subsequent to the properly noticed hearing, subsequent to the issuance of a properly executed order, and subsequent to the service of that order upon duly authorized legal representatives, CIA officials, post-pleadings, post-notice of hearing, post-hearing, and post-service of the Order, still ordered the destruction of the very material that the Court ordered to be maintained;

4. The timing is key. If the material had been destroyed prior to the CIA ever being a litigant, well then maybe. Although, there are cases where a litigant has been held in contempt of court when materials were destroyed IN ANTICIPATION of ligitation. That's not what we have here.

Here we have a party who has been properly served.

Where the subject matter of the litigation is access to the subject material.

Where the parties have had an opportunity to submit full pleadings in the case, and then

Where the parties have had an opportunity to engage in Federally maintain initial disclosures, and then,

Where the CIA has been given proper notice of hearing, and then

Where the CIA has been given an opportunity to respond to and brief the matter to be heard, and then

Where the CIA has made an appearance in open court regarding access to the subject material, and then

Where the CIA has been given an opportunity to appeal the decision of the Court, and then

Where the CIA has been properly served with an order of the Federal Court, and then

THEN, after all of the formal legal processes, and after all those AND THEN, then the material is destroyed.

In other words, we are a long way from ANTICIPATING litigation--the proceedings were well-nigh to knee deep.

And yet, the legal precedent set today to future litigants is that no matter how much work you put into pursuing legal remedies, no matter how much faith you put into the legal system, certain preferred litigants, or at least their corporate agents, can simply disregard the orders of a federal court...and not in an inadvertent way, like they failed to maintain the material and it was mistakenly destoyed, but in an overt way--where the very material to be preserved, is ORDERED to be DESTROYED by a litigant in a blatant act of commission in violation of a court order.

Note too that the Judge is not even confident that those who overtly ordered the destruction of this material were without notice--the Judge seems to be resigned to state that CIA agents who ordered the destruction of evidence "may not have known." Maybe-willfully-ignorant is now a legal standard?

Looking forward, as the law is a guide to future action, the the onus is now on litigants engaged with the CIA as an opposing party to serve every single agent of the CIA (many who are covert) in order to be confident that the Court Order that the litigant has fought for and has put their faith in will be legally binding--otherwise the CIA can claim that some agent, somewhere, did not receive adequate notice.

Tell me: who is in a better position to make sure that covert agents of a corporate entity are properly notified of the proceedings of pending litigation? Should it be the opposing litigant's responsibility to formally notify every agent and employee of a corporate defendant before we can say with confidence that a Court Order is binding upon a corporation?

Isn't that what the judge is implying, that a corporate entity is not bound by an order of the court if each and every agent is not notified WITH CERTAINTY with the substance of the Court's order?

I would hazard to guess that most corporate defendants will not get the benefit of the agent's "may not have known" standard when it comes to destruction of material evidence. But at least now, thanks to this judge, and thanks to the CIA, there is an argument to make for those corporate entities who will overtly flaunt an order of the Court.

Ain't it beautiful?

Cia says they were destroyed before they were asked for.... So the tapes were evidence that the lawyers wanted to view regardless if it was considered exculpatory or not by the cia.... Is that a crime?

All I saw in the OP story was a quote of some pure speculation by the judge--and even that doesn't say the tapes were destroyed before they were requested. To the contrary, it seems the tapes were destroyed, not only after the ACLU's FOIA request, but after a court order to produce them had been entered.

"Hellerstein wrote that CIA officials responsible for producing the tapes in a Freedom of Information Act lawsuit might “not have been aware of the videotapes’ existence before they were destroyed.” The judge also said officials who ordered the tapes’ destruction in 2005 might not have been “aware of court orders requiring identification or production of the videotapes.”

If the court order had not been entered before 2005, that comment would make so sense whatever. (As it is, it barely makes sense. It's not the judge's place to make the CIA's case for it, and certainly not by pulling pure speculation out of his ear.)

And there is a law against destroying government property and government records, even if there is no court order relating to them.

In fact, Democrats on message boards went quite apeshit about that when emails allegedly had been deleted from computers in the Bush WH. And that was not about anything as serious as either contempt of court or torture, only whether government property might have been used for both government business and political business.

by the Holder DOJ into this whole saga was a sham!



http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9525568&mesg_id=9525568

This is not meant to paint a broad brush against any particular group..There are good and bad among us all..

http://www.bollyn.com/there-will-be-no-911-trial-last-family-settles

http://www.bollyn.com/elbit-the-hellerstein-connection-to-9-11

http://judgepedia.org/index.php/Alvin_Hellerstein

(I don't know anything about the bollyn site, but at a glance it is the stuff of which usually goes to the 9-11 forum)

Did anyone think this would end any differently? The system is totally corrupt. We live in a banana republic. But on the other hand, I imagine the judge wants to be alive a year from now, so you know how he had to rule in this case.

Our judicial system is bought and paid for and doing exactly what they were paid to do.

The CIA spits on your court order and you give this bullshit response?

So much for the rule of law.

After all, that would just be lookin' backwards to the past, and we have to be all about lookin' forward to the future nowadays. And by all means, let's not depose anyone or look into the circumstances too closely. Nothing beneficial could come of that!

...absolute, total, utter bullshit....

I should appeal. I hope I get this judge.

Once the Hague trial opens up.

Good job there, Judge.

It is a war crime to order torture, to transmit the order to torture, to torture, or to cover up the evidence of torture. Period.

Eventually the criminals who committed these war crimes will face justice. They might be old men when it comes, but it will happen. There are many people working towards this outcome everyday.

The Obama administration "look only forward" policies and this judge's ruling ensure that ample precedent is there for rogue government, with no countervailing deterrent.

Laws are only for suckers. So much for the rule of law.