By Christine Kearney
NEW YORK, Jan 17 (Reuters) - A U.S. judge deciding if the CIA should be held in contempt for destroying video tapes of interrogations of suspected Islamist militants said on Thursday he believed the court had been deceived by the agency.
U.S. District Judge Alvin Hellerstein was responding to arguments by the American Civil Liberties Union, which accused the Central Intelligence Agency of flouting a court order by destroying the tapes after Freedom of Information Act requests filed by the ACLU in 2003 and 2004.
Hellerstein said he found it "hard to believe" the tapes did not produce any notes or markers that could have been turned over. Government lawyers argued that the videotapes were the subject of a CIA "special review" of the detention program, not an investigation, and were therefore held in operational files not included in the court order.
"If there are hundreds of hours of videotape it’s inconceivable to me that someone doing a special review or investigation of what is going on would not make a summary," Hellerstein said in Manhattan federal court.
"It would seem to me, in fact, that you were gulled and the court was gulled," he told Assistant U.S. Attorney Peter Skinner, before adding he was "disappointed" by the agency’s practice.
Hellerstein said he would likely rule the CIA had shown noncompliance but not find it in contempt and left open the possibility that he may subpoena CIA officials.
The CIA disclosed in December that in 2005 it destroyed hundreds of hours of tapes showing the harsh interrogations of two detainees, suspected al Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri.
Among the techniques believed to have been used in the 2002 interrogations was a simulated form of drowning known as waterboarding that has been condemned internationally as torture.
The destruction of the tapes prompted an outcry by human rights activists and triggered investigations by Congress and the Justice Department.
Civil rights groups, including the ACLU, had sought records from several departments and agencies, including the CIA, Federal Bureau of Investigation and Department of Defense relating to treatment of prisoners in U.S. custody overseas, including in Iraq, Afghanistan and Guantanamo Bay, Cuba.
The ACLU is seeking a reconstruction of the tapes in the form of any notes or transcripts.
To date, more than 100,000 pages of documents have been released. The CIA has objected to releasing many documents, arguing that they are classified and would compromise national security interests. (Editing by Michelle Nichols and Stuart Grudgings)