To set the scene: after the CIA's 2007 public disclosure of the existence and destruction of the tapes and its disclosure that the CIA's Office of Inspector General (OIG) had viewed them, the ACLU quickly moved for contempt sanctions against the CIA arguing that the tapes were responsive to Judge Hellerstein's earlier orders in the case. Hellerstein had ordered that, while the CIA did not need to search its sensitive operational files themselves, the CIA did have to search and identify operational records "that have already been identified and produced to, or otherwise collected by, the CIA's Office of Inspector General."
The CIA's opposition to the contempt motion (which included the important Rea declaration) confirmed that the CIA OIG reviewed the tapes in May 2003 but that, in the CIA's view, Hellerstein's orders only applied to operational records that were physically placed in the OIG's files. Because the OIG did not take possession of the 92 tapes or copies after viewing them, therefore, the CIA did not consider the tapes responsive to Hellerstein's orders.
At the initial oral argument (transcript here), Judge Hellerstein was incredulous that the CIA would have interpreted his orders so narrowly. For a taste, here's Hellerstein and Peter Skinner, the DOJ lawyer with the unenviable task of representing the CIA on that day:
MR. SKINNER: The mere fact that the tapes were viewed by members of the office of Inspector General during the course of a special review does not mean the tapes were collected by the OIG and included within its files. As Ms. Rea explained --
THE COURT: I disagree. You'll have to say more about it. But that's what people do when they do a review or an investigation. . . .
MR. SKINNER: When people conduct an investigation --
THE COURT: . . . if there's a videotape, they run it and they watch it and they may take a note or two. But they watch it, they look at it. And that's what they do.
MR. SKINNER: And then they make a determination about whether that videotape that they reviewed is relevant to the review that they are doing.
THE COURT: No, they've already collected it.
MR. SKINNER: If they view --
If you read through the transcript, you'll see that what Hellerstein appeared to be most concerned about was not whether the tapes were covered by his orders - he was certain they were - but whether the CIA had intentionally or knowingly excluded the undeniably significant tapes when interpreting and responding to his orders.THE COURT: They've already collected it. That's collection.
Skinner suggested, for example, that the CIA's actions to comply with the orders were straightforward and mechanically applied by CIA FOIA personnel, stating that, in the CIA's view, Hellerstein had meant:
You only have to search what has been produced to or collected by the OIG. And we said, Okay, we'll go back and we'll do what the Court's told us. And when we searched and reviewed documents collected by the OIG, when the FOIA personnel did that, they didn't have any videotapes because the videotapes weren't there.
To which Hellerstein responded in an elevating and intensifying voice (to which I can personally attest as I was in the audience):
THE COURT: If your client was aware that that representation to me masked information that was important to the OIG, it was not put into the OIG files, I hesitate to state the inference I would take from that, Mr. Skinner.
MR. SKINNER: Your Honor, I certainly don't --
Hellerstein's verbal contempt in this exchange illustrates the central significance of the John L. McPherson connection. Given that McPherson was reportedly the attorney that viewed the 92 tapes for the Office of General Counsel (OGC) in Nov. 2002 and was later interviewed by the OIG about them, the fact that he was the person that responded to the ACLU about the OIG records in April 2005 confirms Hellerstein's suspicions. The response was not from FOIA personnel having mechanically applied the CIA's interpretation of Hellerstein's order without any knowledge of the tapes existence as Skinner's characterization suggested. The response instead came from a senior CIA attorney who had viewed every minute of the 92 tapes, was fully aware of their importance to the OIG's investigation and, likely, the extensive discussions about the tapes throughout the legislative and executive branches.THE COURT: It seems to me that you were gulled and the Court was gulled.
But that's not all.
Hellerstein also could not fathom how the OIG could not have included copies (or at least file "markers" representing copies) of the tapes in its files in the first place given their significance and he was concerned about the larger implications of that decision, especially when combined with the CIA's narrow interpretations of his orders:
Skinner attempted to argue, in contrast, that the decision not to include copies of the tapes (or even "markers" of them) as part of the OIG files could not have had any improper motive because of the timing, stating:if the videotapes were not put into the OIG files and no markers were put into the OIG files, both of which I find it very hard to understand, that's just that many other kinds of documents were looked at by inspectors general or the staffs and not referenced. It makes a sham out of this whole case.
when they made the determination in May of '03 of whether or not to include these videotapes as part of the actual OIG special review file, it was before a FOIA request was filed, it was before the Court's orders were in effect. How could they have made a determination to try and hide something from someone?The short answer to Skinner's question is that, at the time, the CIA was in fact desperately trying to avoid any actions that would destroy its carefully constructed legal fiction that the tapes were not "records," which was designed to evade the preservation requirements of the federal records laws. This purpose intersected, and was closely intertwined with, the subsequent FOIA analysis.
Where's the evidence for this?
McPherson's review of the tapes for the OGC in Nov. 2002 was itself part of the CIA's argument that the live videotapes were not records because they were the equivalent of superfluous copies of the written records of the interrogations. This was illustrated in the briefing given to Sen. Roberts on Feb. 4, 2003 in which the CIA's then GC Scott Muller described the tapes as simply an "aide to the interrogations" and that the OGC's review had found that the "match" between the videos and the "cables describing the same interrogations" was "perfect."
The argument was made even more explicit the next day, Feb. 5, 2003, in a briefing to Rep. Jane Harman who pushed back in a letter the next week noting that the CIA had informed her that it was already planning to destroy the tapes after the OIG "finishes his inquiry" and arguing "Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate" (emphasis added).
Two days later, on Feb. 7, 2003 the OGC's predetermined plan to destroy the "nonrecord" tapes after the OIG review appears to have met the with the very complication Judge Hellerstein couldn't believe didn't happen - the OIG requested copies of the tapes. See this email within the CIA entitled "Request of tape copies" discussing "how best to accommodate a request for review of videotapes, without complicating security issues" and another the same day entitled "Tapes" concerning "IGs anticipated tape review."
Since January 2003, the CIA OGC had been circulating emails (see, e.g., here, here, here, here) discussing "what actions will make the videotapes an official record" and "informing and reminding CIA officers of the question, what actions make the videotapes an official record." It was therefore imperative that CIA attorneys ensured that the OIG did not receive copies of the tapes or include copy equivalents such as "markers" in the OIG's files precisely because that simple act would have undermined all of the OGC's work by making the tape copies OIG "records" that would have to be preserved pursuant to the federal records laws.
Moreover, they would have been not simply records, but almost assuredly permanent (as in "you can never destroy them") records pursuant to this CIA records schedule (for true conspiracy theorists, note that this CIA schedule used to be on the website of the National Archives, but was "temporarily" removed more than a year ago and has not returned). This would have meant that the tapes would have been preserved irrespective of their relevance to later FOIA requests or litigation.
While the content of the discussion between the OGC and the OIG is unavailable, in the end the OIG reviewed the tapes on-site, took no copies, and included no "markers" in their file.
In sum, while Skinner hung his hat on the fact that the CIA could not have decided not to place tape copies in the OIG files in clairvoyant anticipation of the ACLU's future FOIA request, the CIA knowingly and deliberately avoided putting copies (or the equivalent of copies) in the OIG's files to avoid giving them the status of federal records. As I mentioned in my last post, the federal records laws are so intertwined with FOIA, that Hellerstein's subsequent determination that the tapes were records responsive to his orders, undermined both the CIA's FOIA analysis and its Federal Records Act analysis. See, e.g., CREW v. U.S. Dep't Homeland Sec., 592 F. Supp. 2d 111, 124 (D.D.C. 2009) ("It follows, then, that the records at issue here - having been found by this Court to be subject to FOIA - are 'federal records' subject to the FRA").
The CIA did not make a mistake or inadvertently overlook something in a good faith attempt to comply with Hellerstein's orders - instead, its lawyers expertly gamed the system and got away with a slap on the wrist. It is an unfortunate conclusion to a story that began with Hellerstein's high-flying Sept. 2004 Opinion and Order:
Ours is a government of laws, laws duly promulgated and laws duly observed. No one is above the law: not the executive, not the Congress, and not the judiciary. . . . One of our laws is the Freedom of Information Act (FOIA). That law, no less than any other, must be duly observed.