NEW YORK A federal judge said Thursday that the CIA appeared to have violated a court order by failing to disclose that it had videotaped two al-Qaida suspects undergoing a harsh interrogation at an overseas prison.
U.S. District Judge Alvin Hellerstein chided the intelligence service over its handling of the tapes, which were destroyed in 2005, and said he would consider exploring ways of re-creating their content including requiring CIA officials who viewed the recordings to reveal what they contained.
"I know that we all are disappointed ... What to do about it is another issue," Hellerstein said. "It's quite possible that the destruction was not absolute."
The American Civil Liberties Union has asked Hellerstein to find the CIA in contempt of court for failing to preserve the tapes, the destruction of which has also become the subject of congressional hearings and a criminal investigation by the Justice Department.
ACLU lawyers said the tapes should have been protected by an order Hellerstein issued in 2005 requiring the intelligence service to produce or identify a broad volume of records regarding its treatment of captives.
Speaking from the bench Thursday, Hellerstein said he was disinclined to find the CIA in contempt, saying, "I'm not about to punish the government."
He said his preference was to seek more information about what the tapes contained, which he would review in private before deciding whether the CIA should be allowed to keep it secret. The ACLU has sought the tapes and other CIA records under federal freedom of information laws.
Assistant U.S. Attorney Peter M. Skinner, who is representing the CIA, asked Hellerstein to delay action until the Justice Department completes its inquiry into whether the erasure amounted to obstruction of justice or violated any court orders.
Hellerstein is one of several judges who ordered government agencies to preserve records related to the treatment of detainees in the wake of the Abu Ghraib prison scandal in Iraq.
In rulings made in 2004 and early 2005, Hellerstein granted the ACLU limited access to government records on the treatment of detainees, including those collected by the CIA's Office of Inspector General. He ordered the intelligence agency to provide those records or explain why they should be kept secret.
Many documents, including photographs and government reports, were ultimately made public because of the order. Others remained sealed based on the government's insistence that their disclosure would compromise national security.
No information was turned over, however, on the hundreds of hours of videos that were made of the interrogations of al-Qaida suspects Abu Zubaydah and Abd al-Rahim al-Nashiri in 2002.
Skinner said the agency didn't believe the tapes were subject to the disclosure order because the OIG officials who viewed them in 2003 considered them irrelevant, and never collected or copied them.
Hellerstein expressed dismay with that explanation Thursday. He also questioned why the CIA had failed to disclose other paper records related to the tapes, including notes or memos that might have been written by OIG officials who viewed them.
He said he found it inconceivable that OIG officials investigating the treatment of prisoners would find "actual motion pictures, videotapes of the relationship between interrogators and prisoners" to be of "so little value" that they left no paper trail.
"I just can't accept it. If it came up in an ordinary case, it just would not be credible," Hellerstein said. "It boggles the mind."
The judge has yet to issue a formal ruling on the contempt motion, and didn't indicate when he might decide whether to intervene.