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NY Judge CIA can Keep 9/11 Videotape Info Secret

Alex Constantine - October 1, 2009


NEW YORK — A judge cited national security concerns in ruling Wednesday that the CIA does not have to release hundreds of documents related to the destruction of videotapes of Sept. 11 detainee interrogations that used harsh methods.

U.S. District Judge Alvin K. Hellerstein said he believed he had an obligation to let the CIA director decide what should be released when it pertains to methods used to make uncooperative detainees divulge information.

"The need to keep confidential just how the CIA and other government agencies obtained their information is manifest, and that has to do with the identities of the people who gave information and who were questioned to obtain information," the judge said from the bench.

He ruled after reviewing in private 65 of roughly 580 documents sought by the American Civil Liberties Union, including 53 field reports to CIA headquarters about interrogations.

An ACLU lawsuit already has forced the release of legal memos authorizing harsh methods, including waterboarding, a type of simulated drowning, and slamming suspects into walls, techniques described by critics as torture.

The judge said he expects to order the release of six pages of written notes from a CIA field officer who spoke about the interrogation videotapes with a CIA lawyer, but he gave the government two weeks to submit new arguments opposing the release.

He said it was only important that he decide whether the issue before him was a fit subject for intelligence gathering, not whether it was legal.

"If so, my job is to defer to the extent appropriate — and that is substantial — to the decision of the director of the CIA," he said.

CIA Director Leon Panetta had told the judge in court papers that releasing documents about the agency's terror interrogations would gravely damage national security.

The judge said he believes he would have used the same rationale to rule against public disclosure of the videotapes documenting new harsh questioning techniques if the CIA had not destroyed them in 2005. A criminal investigation into why the videotapes were destroyed continues.

The judge, who presides over thousands of lawsuits filed after the Sept. 11, 2001, attacks, said he reached his conclusions in the CIA case after more "agony of decision-making" than any other area he has ruled upon. He said he studied earlier judicial rulings and concluded "there has been a reluctance on the part of the courts to interfere with the discretion conferred by the mandate of the statutes on the CIA."

The judge, though, said that the CIA has to obey laws, and he cautioned: "We have to square what we do in the gathering of intelligence with who we are as a people."

ACLU lawyer Alex Abdo, who argued in the Freedom of Information Act case, said he was disappointed.

"We were surprised at the level of deference to continue to maintain the secrecy of a program the president himself has declassified," Abdo said. "This is a new level of deference to the CIA's decision to withhold information about an interrogation program the whole world knows about."

He said the ACLU would review its options before deciding whether to appeal.

Government lawyer Sean Lane declined to comment.

The government has said 92 videotapes were destroyed, including interrogations of al-Qaida lieutenant Abu Zubaydah and another al-Qaida leader. The destruction was revealed nearly two years ago.

The administration of President George W. Bush had said some tapes were destroyed to protect the identities of the government questioners while the Department of Justice was debating whether the interrogation tactics were legal.


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