By Jason Leopold

Two weeks ago, the CIA said in court documents that it would not turn over documents to the ACLU related to the destruction of 92 interrogation videotapes because it would compromise the integrity of a special prosecutor’s criminal investigation into the matter.

But on Monday, the Justice Department, acting on behalf of the CIA, submitted a letter to U.S. District Court Judge Alvin Hellerstein that said the agency would no longer rely on that argument as the basis for withholding documents from the civil rights organization related to the destruction of the videotapes. The reversal comes after Hellerstein demanded that Durham and other officials provide the court with a sworn affidavit to back up the CIA’s claims that Durham’s probe would be hindered by the production of relevant documents.

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA’s interrogation of “war on terror” detainees.

In his letter to Judge Hellerstein Monday, Lev Dassin, the acting U.S. Attorney for the Southern District of New York, also submitted a letter from Special Prosecutor John Durham that contained details of Durham’s criminal probe, which Dassin said was “ongoing.” Durham’s letter was not disclosed publicly and was only made available to Judge Hellerstein because it described the status of his investigation.

Dassin’s letter said Durham “withdraws his objection” to a paragraph in an April 20 order by Hellerstein requiring the CIA to turn over documents to the ACLU.

That paragraph said, “The Government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002.

“I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.”

But on May 5, Dassin sent a letter to Hellerstein stating that the production of any documents “would conflict and substantially interfere with [Durham's criminal] investigation.”

“As the court is aware, the scope of the tapes investigation includes the review of whether any person obstructed justice, knowingly made materially false statements, or acted in contempt of court or Congress in connection with the destruction of videotapes,” Dassin’s letter said. “The Government thus respectfully requests that [a previous court order demanding the CIA turn over detailed descriptions of the contents of the destroyed tapes] be withdrawn or otherwise stayed until the tapes investigation has been completed.”

Hellerstein rejected that argument and said Durham did not step forward to say that his probe would be compromised if the documents were turned over to the ACLU. Hellerstein demanded that Dassin back up his argument with a sworn affidavit from Durham and/or other officials.

Hellerstein also pointed out that in a March court filing, Dassin noted that a stay of the contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on Feb. 28 without a request for a continuation – signaling that Durham’s investigation was complete. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.

Last month, however, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison but Durham asked for a delay so he could question him about the tape destruction.

According to Amrit Singh, an ACLU staff attorney, the CIA’s reversal suggests that Durham was unwilling to provide the court with a declaration, as he and the agency has done in the past, stating that the production of documents would compromise the integrity of Durham’s probe.

Dassin also added in his letter that the CIA has identified new documents related to the destruction of the tapes that fall outside of this time frame. The agency said those documents cover April 1, 2002 through June 30, 2003, coinciding with dates set forth in Hellerstein’s April 20 order. 

If Hellerstein amends his April 20 order, Durham may “have objections to the production of documents” covering April 1, 2002 through June 30, 2003. But Durham is “prepared to supplement the record as needed” if Hellerstein’s order is amended, Dassin’s letter says.

The documents covering April 1, 2002 means the videotaped interrogation of Abu Zubaydah, the Bush administration’s first alleged “high-value” detainee, began immediately after he was captured in Pakistan and whisked away to a CIA “black site” prison on March 28, 2002, while still recovering from gunshot wounds.

A document released by the Senate Select Committee on Intelligence last month indicates that top Bush administration officials discussed as early as April 2002 creating the legal framework that would allow CIA interrogators to torture Zubaydah.

Zubaydah’s interrogation was initially conducted by two FBI special agents, Steve Gaudin and Ali Soufan, both of whom used the agency’s “rapport building approach” to extract intelligence information from Zubaydah before the CIA took over and implemented harsher techniques that Soufan said was “borderline torture,” according a report released last year by Justice Department Inspector General Glenn Fine.

In previous court filings, Dassin acknowledged that 12 videotapes showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other torturous methods.

The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. But it’s unknown whether those 12 tapes depicting CIA interrogators torturing Zubaydah predated an Aug. 1, 2002 Justice Department legal memo that authorized 10 different brutal techniques. Recently released Justice Department legal memos showed that Zubaydah was waterboarded 83 times in August 2002.

In his book State of War, New York Times reporter James Risen wrote that immediately after CIA Director George Tenet informed President Bush about Zubaydah’s capture and the fact that he was so badly wounded that he was put on a high dosage of painkillers, Bush said “Who authorized putting him on pain medication?”

Risen suggests that it’s possible that Bush’s response was nothing more than “jocular banter.” Or, as Risen wrote, “it is also possible that the comment meant something more.”

“Was the President of the United States implicitly encouraging the director of Central Intelligence to order the harsh treatment of a prisoner?” Risen wrote. “If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the U.S. military.”

Tenet sent in a CIA team in April 2002, led by Dr. James Mitchell, a psychologist under contract to the agency, to take over the interrogations, which became more aggressive.

In her book, The Dark Side, New Yorker reporter Jane Mayer wrote that when Mitchell arrived he told Soufan and the other FBI agent that Zubaydah needed to be treated “like a dog in a cage.”

Mitchell said Zubaydah was “like an experiment, when you apply electric shocks to a caged dog, after a while he’s so diminished, he can’t resist.”

Soufan and the other FBI agent argued that Zubaydah was “not a dog, he was a human being” to which Mitchell responded: “Science is science.”

Earlier this month, as first reported by The Public Record, the CIA turned over to the ACLU documents that showed CIA interrogators provided top agency officials in Langley with daily “torture” updates of Zubaydah.

The documents–Part I, Part II–contained general descriptions of cables sent back to CIA headquarters describing the August 2002 videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.

The CIA and the Justice Department declined to turn over a more detailed description of the cables it’s field agents sent back to headquarters citing several exemptions under the Freedom of Information Act.

In a two-page letter accompanying the indexes, CIA Associate General Counsel John McPherson wrote that a “senior government official” would submit a declaration on May 22, “that more fully explains the justifications for withholding a more detailed description of the cables.”
 
Dassin said in his letter Monday that the CIA will now begin to work with the ACLU on a proposed schedule for turning over certain documents related to the destruction of the videotapes. It’s also possible, said the ACLU’s Singh, that the agency will come up with yet another rationale for withholding the documents.