NYC judge again sides with CIA on withholding names of harshly treated Sept. 11 detainees

NY judge: CIA can keep secrets despite ACLU demand

NEW YORK — A judge for a second time has denied efforts by the American Civil Liberties Union to force the CIA to release names and documents relating to Sept. 11 detainees who were interrogated harshly.

Judge Alvin K. Hellerstein listened to lawyers for the ACLU and the government for more than an hour Wednesday before announcing he had not changed his mind and would issue a written ruling later.

He told attorney Larry Lustberg, who argued for the ACLU, that he had made an impact.

“However, I will adhere to the views I expressed last time and deny the motion,” the judge said.

Last September the judge rejected a request by the ACLU to force the CIA to release records related to harshly treated detainees, saying he had an obligation “to defer to the extent appropriate — and that is substantial — to the decision of the director of the CIA.”

CIA Director Leon Panetta had told the judge in court papers that releasing documents about the agency’s terror interrogations would gravely damage national security.

The ACLU asked for a second chance to argue on the subject because some of the arguments by the government were made for national security reasons without the ACLU lawyers present in the room.

Lustberg told the judge he had an obligation to force the release of the identities of the detainees and related documents if he concluded that harsh tactics such as waterboarding, a form of simulated drowning, weren’t sanctioned by Congress.

“We believe, given all the disclosures that’s taken place already, it would not hurt national security,” Lustberg said.

The judge responded: “I was not appointed to be the director of central intelligence.”

He added that he did not think it was the job of a district judge to determine what tactics used by the CIA are appropriate.

He put the government’s lawyer, Sean Lane, on the defensive, though, when he asked if there comes a time when there is no intelligence purposes for keeping a name secret.

“What do we fear here?” the judge asked.

Lane said the government periodically reviews its reasoning for keeping documents secret and agrees to release them when national security would no longer be endangered.

After the hearing, Lustberg said he was disappointed. Once a written ruling is issued, the ACLU plans to appeal, he said.

“It’s a ruling that courts are not going to second guess the CIA when it engages in torture,” Lustberg said.

The ACLU had been seeking roughly 580 documents, including 53 field reports to CIA headquarters about interrogations.

An ACLU lawsuit already has forced the release of legal memos authorizing harsh methods, including waterboarding and slamming suspects into walls, techniques described by critics as torture.

The judge has said he likely would have ruled against public disclosure of videotapes documenting new harsh questioning techniques if the CIA had not destroyed them in 2005. The destruction was revealed nearly two years ago, and a criminal investigation into why the videotapes were destroyed continues.

The government has said the destruction was of 92 videotapes, including those containing interrogations of al-Qaida lieutenant Abu Zubaydah, who later told a military tribunal he suffered physical and mental torture and nearly died four times. Zubaydah claimed that after many months of such treatment, authorities concluded he was not the No. 3 person in al-Qaida as they had long believed.

The administration of former President George W. Bush had said some tapes were destroyed to protect the identities of the government questioners while the Department of Justice was debating whether the interrogation tactics were legal.