The CIA  destroyed 92 videotapes depicting the torture of two captives, Abu Zubaydah and Abd Al-Rahim Al-Nashiri, despite a court order requiring the production of the videos. This was the subject of  an action brought by the ACLU under the Freedom of Information Act “related to the detention and treatment of prisoners in U.S. custody abroad.”

We argued that the CIA showed complete disdain for the court and the rule of law itself when it flouted several court orders to produce the videotapes and instead destroyed them. To provide some background, in September 2004, the court first ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody, which would have included at least 92 videotapes documenting the harsh interrogation of the two prisoners. Despite the orders, the CIA never produced the tapes or even acknowledged their existence. Unbeknownst to the public, the tapes were destroyed in November 2005, a year after the court’s first order, although the destruction was not publicly revealed until 2007.

A smack in the face of a federal court by a branch of our government?  Maybe a love tap.

After a lively round of arguments, the judge sanctioned the CIA for its attempt to evade the law and will require the agency to pay our legal fees for costs incurred in bringing the misconduct to light. The judge also asked the CIA to publish its forthcoming document-destruction policies, which are being considered in response to our litigation to prevent this type of destruction from occurring again. Finally, the judge commented that the ACLU had played an “extraordinary” role in revealing to the public information about the abuse of detainees in U.S. custody. However, in his ruling from the bench, the judge failed to hold the CIA in contempt of court, leaving unaddressed our larger concerns about accountability.

Would it be considered naive to suggest a victory of sorts for the judge to “ask” the Central Intelligence Agency to publish its document-destruction policies, given that regardless of what policies it makes, it remains above reproach for doing whatever it chooses to do?  Apparently, some people have far more faith in the institutions of this fine nation than others.

So the CIA tortured detainees held abroad.  The CIA destroyed videos of the torture after a United States District Judge ordered them to turn them over.  The CIA denied the former and concealed the latter.  And the remedy is that they should publish their policy about destroying documents, even if there is no penalty for ignoring it and only if they want to.

And they have to pay the ACLU’s legal fees out of their taxpayer funded  budget.  Harsh, right?

The action brought by the ACLU is one of the rare opportunities presented to put an agency of the government under scrutiny that otherwise defies scrutiny of any sort.  The argument on the one side is that the CIA cannot, and should not, be subject to public scrutiny if it’s going to do the vital job we need of it.  It’s all about spying, and spying is one of those things that is best left undercover.

But then, the romance and intrigue of James Bond movies doesn’t fit well the the routine torture of guys with arabic names in foreign prisons.  The willingness to allow the CIA do so as it pleases, as it must according to those who have faith in its ability to protect us from foreign enemies, is dependant on our belief that it comports with our expectations that it can restrain itself from acting in ways that would outrage Americans.

Some supporters might be willing to accept torture as a necessity these days.  Some would explain that those of us who are less enthusiastic about torture don’t get it, that it’s a hard, harsh world out there, populated by crazies who want to end our lives.  The CIA only does what it has to do to keep us safe, and it will continue to do so even if whiners and hang-wringers think they shouldn’t.

Regardless of where you fit along the spectrum of supporters and detractors, Judge Hellerstein’s allowance of an agency of government to not merely disregard his order, but to act in direct defiance of it, presents a deeper dilemma.  Perhaps the people of the United States, and even the courts, are constrained to give our spooks greater latitude in the performance of their duties than we would give anyone else.  Anyone.  Maybe this is a real give-back for the nasty, ugly, harsh but necessary job they do.

But once they are allowed to directly, overtly, flagrantly defy the order of the court, then they are without constraint of any sort.  No one can stop them.  No one can control them.  No one can say, “enough.”

Leon Panetta may be a wonderful human being, deeply concerned for the welfare of the citizens of the United States of America.  But the memo just came across his desk that as Director of the CIA, he answers to no one.  In a democracy, no government official should ever be in a position where he answers to no one.

Eventually, another opportunity will come along to subject the CIA to the scrutiny of our legal system.  Whoever happens to be the judge to whom the case gets wheeled, let this be considered in deciding whether it’s acceptable to have an agency of our government tell the court that its impotent.  No matter how much the judge loves the CIA and appreciates what it has accomplished for the nation, this cannot be allowed or tolerated. 

But it will be awfully hard to tell the CIA that the next time, it has to comply because of this monumentally weak decision.  And when the CIA tells the court to go fly a kite next time, what exactly is the court going to do about it?