This interview can be heard here.

Glenn Greenwald: I'm speaking today to Amrit Singh, who is a staff attorney with the ACLU in New York, and we're speaking regarding some potentially significant developments in this scandal that arose out of the CIA's destruction of at least 2 video tapes, which it made and then destroyed, of its interrogation of suspected al-Qaeda suspects. Thanks very much for joining me today.

Amrit Singh: You're welcome.

GG: Now, I just want to begin by reminding everyone - because there's so many scandals over the last seven years that involve serious criminality, and the attention span of the media seems to be so short that these scandals explode onto the scene for about 48 hours, and then disappear unresolved, so - this arose, just very briefly, out of reporting by The New York Times' Mark Mazzetti in December 2007, where he reported that in 2005 the CIA destroyed at least 2 videotapes of interrogations that it had conducted of various al-Qaeda members, despite there being all sorts of civil and criminal and investigative proceedings relevant to those videotapes, and there was some suggestion in that article and since that the CIA's actions in that regard might have constituted obstruction of justice, as it was the destruction of evidence relevant to some of these investigations.

So can you talk about the background of what has led the ACLU to be involved in a court proceeding involving this scandal, and where things are right now?

AS: Certainly. In October of 2003 the ACLU filed a Freedom of Information Act request with the CIA and other agencies requesting the disclosure of records relating to the treatment of prisoners found in US custody abroad. Subsequently, in court proceedings, a federal judge in September of 2004 ordered the CIA and other agencies to turn over all responsive documents.

GG: Let me just interrupt you for a second. So, the FOIA request that the CIA filed would have included, had it been responded to, obviously, videotapes of interrogations, since the whole point of the FOIA request was to get all information relevant to how the government was treating its detainees. Is that right?

AS: Exactly. So that the videotapes were exactly what we were requesting. And instead of turning them over to us, or identifying the records as being in their possession, the CIA destroyed these records. And in doing so, basically violated a court order requiring them to produce or identify these documents.

GG: Now, you say the court order required them to produce or identify the documents. Was there actually a ruling that the CIA, had they possessed videotapes, would have had to turn them over to the ACLU, or was the ruling that, if they did possess them, they either had to turn them over or identify the ones they possessed and give some good reason why they shouldn't have to turn them over?

AS: The ruling was framed generally in terms of all of the defendants in the lawsuit, the CIA and other defendant agencies including the Defense Department. Basically, the judge ordered them to either turn over all responsive records, or to identify these records and explain which exemption under the Freedom of Information Act would allow them to withhold them from the ACLU and the broader public at large.

GG: And so, what did the CIA do in response to that order from the court?

AS: Well, it essentially flouted that order - it destroyed these videotapes. It did not identify the videotapes and did not turn them over, and destroyed them. That's the reason the ACLU walked into court and filed a contempt motion in December of 2007 right after we heard that the tapes had been destroyed. In fact, we didn't know the tapes had been destroyed. Had it not been for the New York Times article, we would not even have known. The point of the contempt motion is to hold CIA accountable for its flagrant disregard for the rule of law.

GG: So, and just to be clear, what typically happens with these Freedom of Information Act requests, at least in theory, is, you request that the government disclose some information, on the theory that we have an open government in this country, and they're required either to give it to you, to let you see it, or to tell you what it is that they have and the reason why they can legitimately withhold it. And if they don't do that, you can go to a court and get a court order compelling them to comply with their obligations, in essence.

And you got a court order compelling them to identify what it is that they possess, that was responsive to your request, which you allege is a court order that they violated by destroying these videotapes instead, and never identifying them.

So, what happened this week that is potentially significant in terms of holding the CIA accountable?

AS: Well, we had a hearing before Judge Hellerstein in the Southern District of New York on Monday, and the judge indicated his impatience with the CIA's request for a stay of the contempt proceedings. The CIA's arguing that the contempt proceeding should be stayed pending the Justice Department's criminal investigation into the destruction of the tapes. But the ACLU argued that there was no reason for the court to stay the proceedings because what is before the court is a pure legal issue, whether or not the CIA complied with its orders, and that the judge is perfectly entitled to rule against the CIA and to move for the ACLU and uphold the right under the Freedom of Information Act to the public, at least know whether these records exist.

The judge also said that the CIA had to identify at a minimum, within approximately 30 days, what documents it had destroyed, along with lists of witnesses who could potentially testify as to the destruction and the content of the tapes, and transcripts, summaries, and other records reflecting the contents of the tapes would also have to be identified.

GG: So, just to be clear, the Justice Department, and Attorney General Mukasey, after the disclosure by The New York Times that the CIA destroyed these video tapes, announced that they, the Justice Department, in essence, would investigate to see if crimes had been committed here. They didn't appoint an outsider, an independent investigator; they took a career prosecutor with the Justice Department and assigned him the task of determining whether there was a crime committed here that the Justice Department ought to prosecute. That was eight months ago or so. Has anything happened in terms of that investigation, that you know of?

AS: Not that I know of, and in fact, the judge himself said, how long is this investigation going to continue? and how long does justice have to be delayed until this investigation is going to go on? He says that he's already stayed his hand for about eight months, and expressed a great deal of impatience with the thought that he would have to stay his hand for at least another couple months, which is what the government is asking for. The point is that this is just a ruse to delay holding the CIA accountable for what was clearly a flagrant disregard for the rule of law.

GG: What is interesting, and I began by alluding to this in the beginning, is that there's so many different episodes of what appears to be clear criminality - not just corruption, or wrong-doing, but actual crimes - in the Bush presidency, that you actually forget about all the different ones that arise and they sort of fade away. And this is probably one of the clearest, in that, there was even an op-ed from Lee Hamilton and Thomas Kean, the co-chair of the 9/11 Commission, who said that the CIA's failure to give them these videotapes, or to identify the existence of these videotapes, almost certainly constituted - and they used this word twice - obstruction, which is a crime, to obstruct the investigation of the 9/11 Commission.

And so here you have the Justice Department claiming to investigate, and yet not doing anything, and then the same Justice Department, or I guess here the CIA, government lawyers going in to court, and arguing that, because the Justice Department is supposedly investigating, even though nothing's happening, everything else should be put on hold, including the courts, here the federal courts' interests in vindicating its own order.

Was the original order that was issued, that you argue the CIA violated, an order that was issued by Judge Hellerstein or is was that a different -- ?

AS: Yes. That was Judge Hellerstein, yes.

GG: So, the argument is that the CIA essentially flouted his order to comply with the Freedom of Information Act?

AS: Right.

GG: And, what possible remedies does Judge Hellerstein have if he finds that the CIA did that?

AS: Well, he can order them to, at a minimum, identify everything that was destroyed. He can order discovery into the question of why these tapes were destroyed. He can ask them to pay attorneys' fees to the plaintiffs. He can ask them to reconstruct what was on the tapes. He can order the disclosure of any transcripts that reflect the content of the tapes or any other documents that reflect the contents of the tapes.

GG: Now one of the aspects of this controversy that did did generate some subsequent attention was the question of who exactly it was within the government responsible for the destruction of these videotapes. There was an effort originally to scapegoat a mid-level CIA official, Jose Rodriguez, and yet subsequent evidence or reporting seemed to suggest, at the very least, that there were very high-level discussions at the White House about whether these tapes ought to be destroyed, and at least some White House officials, such as David Addington, Dick Cheney's top lawyer and advisor, vehemently arguing that the tapes ought not to be preserved, that they ought to be destroyed. Has there been any further information or evidence that you're aware of as to who it was that actually ordered or approved of the destruction of these videos, and would your procedure, your contempt hearing entail some discovery into that question?

AS: Well, that's certainly seems what Judge Hellerstein wants to do. As of now, we haven't received any information about who specifically ordered the destruction of the tapes, but the judge seemed keen on finding out more about why these tapes were destroyed, and under whose authority.

GG: Okay. Last question is: Has there been an actually ruling from the judge as far as what the CIA is now required to do, or was it more just a general sense that he's getting close to the point where he's frustrated and therefore might action?

AS: Well the judge did indicate that he wanted the CIA at a minimum to start identifying all records that were destroyed and also whether there were any transcripts, summaries or other records that reflected the contents of the tapes. He wanted those records to be identified as well. So at a minimum that's what he wants done, approximately within 30 days.

GG: So they have a deadline of 30 days from Monday?

AS: From the entry of the order. So, we've submitted a proposed order. That order hasn't been formally entered, but at the conference the judge indicated a desire to enter such an order. So once he actually signs such an order, then the clock will start ticking on the CIA to produce these lists.

GG: And the list will have to include, at least if they comply with the court's order this time, a declaration as to how many videotapes it was that were destroyed, and whether transcripts of what was on the videotapes exists somewhere?

AS: Yes.

GG: Well, that seems like a significant step, at least, and it seems like a reflection that Judge Hellerstein is at least intent on moving forward, at least incrementally in compelling some answers from the CIA that we actually don't have right now.

AS: Yes. We certainly hope that he will hold the CIA accountable, and I think there's a larger issue here, is not only the destruction of the tapes, what was reflected on the tapes. That these tapes reflected the abusive interrogation methods and waterboarding, and it is essential that the CIA be held accountable not only for destroying the tapes, but for the conduct that was depicted on the tapes.

GG: That's an interesting point, actually, because there is some controversy over Attorney General Mukasey's decision to exclude from the Justice Department investigation, any question about whether or not the interrogation methods depicted on the tapes themselves violated the law. Is it true that the Justice Department investigation is confined solely to the question as to whether the destruction of those videotapes were a crime, but excludes the question of whether what was depicted on the videotapes was a crime?

AS: That is my impression from reading the news, yes. And also I would add that the Attorney General was very clear in hearings before Congress that he would not feel comfortable prosecuting anyone at the CIA for the use of methods that had specifically been cleared by the Office of Legal Counsel. And there was an August of 2002 memorandum issued by the Office of Legal Counsel to the CIA that specifically, we think, authorized waterboarding, and it would appear from the Attorney General's statement that, to the extent that these tapes reflected methods that had specifically been cleared by the Office of Legal Counsel, he thought that there was no basis for prosecution.

GG: My last question is, has the CIA confirmed, or are you aware of confirmation otherwise, that there are no copies of those videotapes anywhere that weren't destroyed? Were those the only copies, and are there other copies in some other form? Or is that part of what you'll learn if Judge Hellerstein's order is complied with?

AS: There have been no confirmations of the existence or non-existence of those copies.

GG: If there were other copies, in some partial form, or some other format, like transcripts or something, or summaries, is that something that the CIA would be required to disclose as part of its compliance with the order?

AS: Yes, and that's what we've asked for. We require if it decides to withhold them, then it needs to provide a good reason for why they should be withheld.

GG: Right. Well, it's very interesting and we'll certainly follow the proceedings, it sounds as though it could be the thread that if it's pulled hard enough, can unravel at least this discrete act of high-level criminality. I appreciate your taking the time to describe what the latest developments are and I hope to talk to you again as there's more.

AS: You're welcome.

GG: Thanks very much.
[Transcript courtesy of Thames Valley Transcribe]