Just a quick post on a rather remarkable filing by the CIA in the context of a FOIA lawsuit filed by reporter, and tireless FOIA requester, Jason Leopold. The filing is the CIA's Opposition to Leopold's Motion for a Preservation Order in a lawsuit over Leopold's FOIA request for the CIA's internal "Panetta Review."
Of particular note, the CIA boldly argues in its filing that the "destruction of the interrogation videotapes in 2005 is irrelevant" to whether there is a need for a preservation order in Leopold's case and, a few lines later, that the "conditions under which the interrogation videotapes were destroyed have no bearing on this case" (pp. 4-5). The government's support for these questionable assertions creates a new low for government litigation.
First, the CIA shamelessly cites to ACLU v. Dep't of Defense, 827 F. Supp. 2d 217, in which the court actually held that the CIA had violated FOIA and federal court orders in a FOIA case by destroying the responsive interrogation videotapes and in which the court stopped just short of holding the CIA in contempt for doing so. The CIA nevertheless asserts that the ACLU case supports its opposition to a preservation order because in Leopold's case, unlike in the ACLU case, the CIA is not arguing that the Panetta Review falls under the CIA's "operational files exemption." While it is good that the CIA is indicating that it does not plan on manipulating that specific exemption in Leopold's case in order to avoid its preservation obligations, the ACLU case will always stand for the broader proposition that the CIA is willing and able to manipulate FOIA in order to avoid an obligation to preserve relevant records. And as I have explained here, the CIA's manipulation of FOIA in the ACLU case was knowing and intentional.
Second, the other purported support is an even more shameless CIA citation to an unpublished 2008 decision in a GTMO case Abdah v. Bush (here). In that decision, however, the court simply held that the destruction of the videotapes did not appear to violate the specific, and quite narrow, preservation order that had previously been entered in that specific case. Indeed, if anything that opinion stands for the proposition that the preservation order the court entered in that case was not broad enough. Let me explain quickly:
In 2004, Abdah, like Leopold, sought a preservation order and the government filed an opposition (here) that, like today's CIA filing, claimed a preservation order was unnecessary. The government's filing, which was in January 2005 (ergo, 11 months before the tapes were destroyed), ridiculed Abdah's "conspiracy theory" that the government has a "propensity to destroy evidence" and that there was "no basis whatsoever for suspecting an impending campaign to destroy documents relating to Guantanamo." Moreover, the government claimed that it "strains credulity" that it would destroy any documents given the many pending government investigations into the "mistreatment of detainees"(and it also specifically cited the ACLU FOIA litigation!). Finally, the government declared that it was "well aware" of its broader "obligation not to destroy evidence that may be relevant in pending litigation." Despite the government's protestations, the court in Abdah nevertheless granted a preservation order (here), but it only covered "evidence and information regarding the torture, mistreatment, and abuse of detainees" at Guantanamo, not all evidence relevant to Abdah's case.
Therefore, the Abdah opinion the CIA purports to rely upon is simply the one in which the Court looks at its old preservation order and says the destroyed tapes are not covered by it. The court specifically does not reach the issue (because it was not raised in Abdah's motion) of whether the tapes violated the government's broader duty not to destroy relevant evidence. If anything, that opinion would argue for plaintiffs like Leopold to request belt-and-suspenders protection through preservation orders when dealing with the government in national security cases and that courts should be more liberal in granting them.
Finally, the CIA's citation to the unpublished Abdah opinion is alarming for the separate reason that the CIA fails to bring to the court's attention the published opinion in Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) decided just a few weeks after Abdah, in which a court held that another GTMO detainee had made "a colorable showing that information obtained from Abu Zubaydah during 2002 likely included information" about him and that the destroyed tapes were "therefore subject to the preservation order" in that case, which was broader than in Abdah. This contrary holding in a published opinion goes directly against the point the CIA is making in its motion in Leopold's case. CIA cites Abdah for the fact that the judge in Abdah "declined to inquire further into whether the CIA had abided by its preservation requirements." Yet in Abdullah, which again the CIA does not cite, that is exactly what the court did. Based on its finding of a violation of the preservation order in the destruction of the tapes, the court in Abdullah ordered that the government was required to file a report "detailing what they have done since the preservation order was entered . . . what they are now doing, to ensure compliance with . . . the preservation order, and the nature of any evidence potentially subject to the protective order that has been destroyed or otherwise spoliated." The final kicker is that the government also filed this report in Abdah (here).
It is truly disturbing that this is the support the CIA would put forward in an attempt to distinguish the destruction of the CIA tapes and to support the proposition in its filing today that there is "no reason for the Court to believe that the CIA will not abide by its legal obligations to preserve responsive records."