In the Trenches: Archival Ethics, Law and the Case of the Destroyed CIA Tapes

Abstract

IntroductionThe archival community has embraced government accountability as a "core value" of archivists and ethical codes for archivists have long included prohibitions on document destruction designed to sanitize "the record" or conceal evidence (Society of American Archivists ["SAA"], 2013). For government archivists such values and standards are not simply aspirational or theoretical, but an integral part of their professional and legal obligations. In particular, the duties of the Archivist of the United States and NARA include the responsibility to authorize and empower federal agencies to destroy records. Exercising this authority requires NARA to negotiate a unique mix of competing, and sometimes conflicting, interests. While working cooperatively with federal agencies to improve the efficiency of agency record-keeping by encouraging agencies to dispose of unnecessary records, NARA archivists are simultaneously tasked with ensuring that agencies retain records that may be directly adverse to the interests of the agency and enforcing records retention responsibilities when agencies fail to comply.This essay explores the relationship between NARA and government records destruction. It begins by discussing relevant archival "values" and ethical codes related to document destruction and government accountability and stressing the unique role of government archivists. It describes the methods federal agencies have used historically to evade record-keeping responsibilities and archival guidance, which have often relied upon manipulating archival concepts and terminology. The essay then examines the CIA's 2005 destruction of videotapes depicting the detention and brutal interrogation of detainees as a practical illustration of both an agency apparently attempting to avoid recordkeeping requirements and the difficult task of archivists in attempting to enforce them as a means towards government accountability. The article ends by suggest - ing that the most practical efforts to deal with conflicts are largely within the special expertise of archivists, but that current record-keeping reforms may unfor - tunately result in diminishing the role of archivists in ensuring accountability.Archivists, Ethics, and Government Document DestructionArchivists have a unique relationship with document destruction. Unlike many professionals who work in repositories of historical and cultural material, archivists' destruction of material in their care is not only acceptable, but a crucial and indispensable responsibility. In the process euphemistically called "selection," the role of the archivist is to separate the wheat from the chaffand determine which portions merit long-term preservation. The primary justification for this process is that with ever-present limitations of resources, archivists must reject the many to preserve the few (Cox, R.J., 2004, p. 8). In fact, the responsibility to select arguably rises to the same level as the duty to preserve. The 1955 "Archivist's Code" created by the National Archives, for example, stated that an archivist "must be as diligent in disposing of records that have no significant or lasting value as in retaining those that do" (National Archives, 1955).In performing the selection function, ethical considerations primarily focus on not intentionally distorting or sanitizing the record. The SAA Code of Ethics, for example, provides that "Archivists may not willfully alter, manipulate, or destroy data or records to conceal facts or distort evidence" (2013). This ethical standard, therefore, simply prohibits the archivist from intentionally undertaking such destructive acts. In practice, however, the significantly more complex reality is that manipulation or destruction of "the record" most often occurs before documents arrive at the archives, while they are still in the hands of the institutions or individuals that created them. That is, archivists may never see the reams of documents consigned to the trash bin whether because their creators considered them insignificant, unimportant, or embarrassing or undesirable evidence of wrongdoing. …