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US Government Argues Cables on Illegal CIA Waterboarding Should Remain Secret


As part of a follow-up from the CIA’s destruction of torture videotapes, the American Civil Liberties Union (ACLU) has been working to force the CIA to release cables that describe how the agency used waterboarding. The CIA asserts the Freedom of Information Act (FOIA) lawsuit should not induce the release of documents because waterboarding involves “intelligence methods” that should not be revealed. But, the ACLU disputes that argument and points out waterboarding is illegal so the cables should not be protected from release.

On March 9, the ACLU will be appearing in a federal appeals court to argue against the CIA’s efforts to, as ACLU attorney Alexander Abdo says, “prevent the public from learning the full scope of the torture program.”

The ACLU reports the “CIA identified 580 documents that describe what the tapes depicted, but it has refused to release them. The agency is also refusing to release a photo of one of the detainees, Abu Zubaydah, apparently taken around the time he was being interrogated.”

A “reply brief” filed in response to the government’s attempt to block the release of the cables calls attention to the key issue, which is that the government is trying to avoid transparency by arguing that details on an “unlawful activity” should be withheld from the public. The reply notes there is no “instance” the ACLU is aware of “in the history of FOIA,” where an agency claimed an illegal activity was an “intelligence method” so it should be kept secret.

On the Zubaydah photo, the brief charges that the CIA continues to “fabricate” explanations to justify keeping the photo secret but the statements raise doubts as to whether the photo even happens to show a protected “intelligence method” or activity being used on Zubaydah.

The government’s response challenging the ACLU argues the lawsuit involves “extraordinarily sensitive, classified information,” which includes:

(1) documents reflecting the CIA’s use of enhanced interrogation techniques (including waterboarding) on detainees in CIA custody at clandestine overseas facilities (the “interrogation records”); (2) an operational photograph of high-value detainee Abu Zubaydah, taken while he was detained in CIA custody overseas; and (3) information in two OLC memoranda pertaining to a highly classified, active intelligence method

The government makes the tired argument that the disclosure could “cause grave national security harm.” They also argue “the legality of government action is ‘beyond the scope’ of FOIA.” That line suggests that there is, in fact, a debate on whether waterboarding is illegal or not. There is no debate. Waterboarding is a war crime.

Additionally, the government writes in “factual background” for the case that the “government has released numerous records discussing” torture or “Enhanced Interrogation Techniques (“EITs”), including waterboarding.” They note “on January 22, 2009, President Obama issued an Executive Order,” which terminated “the CIA’s detention and interrogation program” and mandated that “individuals in United States custody ‘shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual.'” Both of these citations are intended to excuse the Obama Administration’s desire to err on the side of secrecy.

That documents have been released already on torture or war crimes is no excuse to keep secret further details on a government agency’s employment of torture to collect intelligence.

No former Bush Administration officials have been held accountable for committing illegal acts of torture. Not a single one of the torture memo authors, like Jay Bybee, Steven Bradbury or John Yoo, have been put on trial. Essentially, all involved in torture have enjoyed impunity and torture has been essentially decriminalized as the Obama Administration refuses to fully pursue prosecutions.

The government’s challenge to ACLU’s FOIA action is just another example of the Obama Administration’s unwillingness to investigate how the torture program originated, compensate torture survivors and hold accountable those who granted permission to interrogators to use torture.

A consensus has emerged that Obama Administration is worse on FOIA than the Bush Administration. In a recent interview, NSA whistleblower Thomas Drake finds Obama has expanded the secrecy regime far beyond what Bush ever intended.

But, the Administration does not just block documents. It also sends high-ranking officials to make speeches in lieu of transparency. For example, on March 5, Attorney General Eric Holder delivered a policy speech on the legality of the US government’s targeted killing programs. The speech was a cheap attempt at feigning transparency and only increased interest in the contents of legal memos drafted to provide justification for killing without charge or trial US citizens suspected of terror abroad.

The government’s continued battles against transparency are appalling. Like Abdo says, “The Obama administration should fulfill its commitment to transparency and release these additional documents. The American public has a right to know the full truth about the torture that was committed.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."