By Jason Leopold

A federal court judge overseeing a lawsuit filed against the CIA by the American Civil Liberties Union agreed this week to review classified documents related to the destruction of 92 interrogation videotapes to determine if the agency improperly classified some of the materials.

In a letter filed March 9, by the ACLU in U.S. District Court in New York, staff attorney Amrit Singh said the CIA’s recent document production detailing the number of videotaped interrogations that were destroyed may have been “improperly classified.”

“Plaintiffs are skeptical that all of the information redacted from the CIA’s latest submission can be properly withheld from the public,” Sing wrote in a letter to Judge Alvin Hellerstein. “To the extent that the redacted information relates to illegal interrogation methods, the information is not properly classified.

“Significantly, President Obama’s recent directive expressly prohibits the government from ‘keep[ing] information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be reveled, or because of speculative abstract fears.”

Singh was referring to an executive order Obama signed Jan. 21, one day after he was sworn in as president in which he instructed all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama said. “In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

In December 2007, the ACLU filed a motion seeking to hold the CIA in contempt for destroying the tapes. The civil liberties organization had previously filed a Freedom of Information Act lawsuit that sought materials related to the treatment of detainees and the way in which they were interrogated. 

Two weeks ago, the CIA filed court documents that for the first time provided details into the agency’s systematic destruction of videotaped interrogations involving two alleged high-level al-Qaeda operatives: Abu Zubaydah and Al-Nashiri.

The destruction of the CIA tapes has been the subject of a yearlong criminal investigation by John Durham, the acting U.S. Attorney for the Eastern District of Virginia who was appointed special prosecutor last year by Attorney General Michael Mukasey.

Civil liberties advocates also have urged fuller investigations into whether President Bush and some of his senior aides committed war crimes and violated federal anti-torture statutes by ordering CIA interrogators to subject detainees to brutal tactics.

The CIA said in court documents filed March 2 that it destroyed 92 videotapes. A dozen of those tapes showed agents subjecting the detainees to the drowning sensation of waterboarding and other brutal interrogation methods, according to redacted documents filed in federal court.

Last week, the Justice Department filed a heavily redacted document on behalf of the CIA that said: “Interrogators administered [redacted] waterboard to Al-Nashiri.”

The same page indicates that a dozen of 92 destroyed videotapes of the CIA’s interrogations were of detainees undergoing brutal treatment. “There are 92 videotapes, 12 of which include EIT [enhanced interrogation techniques] applications,” the page says.

Other censored CIA documents filed with the court included an inventory of the destroyed tapes.

In a letter to the U.S. District Court for the Southern District of New York, Acting U.S. Attorney Lev Dassin said a complete list of summaries; transcripts or memoranda related to the videotapes would be filed with the court by March 20. The CIA requested an extra two weeks, Dassin said, “Because it is still searching and identifying the records at issue.”

However, “to date, the CIA is not aware of any transcripts of the destroyed videotapes,” Dassin wrote.

Dassin said much of the information the ACLU is seeking remains classified and still cannot be released publicly. Dassin said an unredacted version of the inventory of videotapes the CIA destroyed could be viewed “in camera” by the judge presiding over the case.

In her March 9, letter to the Judge Hellerstein, Singh said the ACLU is “troubled by the redactions in the materials that have already been produced” and she requested the court “conduct an independent in camera review of the material and any other material that the CIA redacts in connection with the pending contempt motion with a view to determining whether such material should be publicly disclosed.”

Hellerstein said March 9 that he would establish a procedure for an in camera review of CIA documents in order to ascertain whether documents have been properly classified or should be disclosed publicly. It’s unknown when he is expected to begin his review or render a decision in the matter.

In an interview, Singh said the CIA has “engaged in a pattern and practice of excessive cover-up” by “needlessly withholding” and “over classifying” documents related to the organization’s lawsuit against the agency.

Before leaving office, Vice President Dick Cheney admitted in several interviews that he “signed off” on waterboarding three terrorist detainees–Al-Nashiri, Abu Zubaydah and Khalid Sheikh Mohammed, the alleged mastermind of 9/11–and approved the “enhanced interrogation” of 33 detainees. President Bush also indicated that he endorsed the use of harsh interrogations.

Last year, the Pentagon formally charged al-Nashiri, a Saudi, with “organizing and directing” the Cole bombing. However, the case is now under review because President Barack Obama has barred continuation of cases under the Military Commissions Act of 2006.