Federal appeals court rules government may withhold CIA interrogation, waterboarding records

Amanda Simmons | Freedom of Information | News | May 22, 2012

A federal appeals court ruled yesterday that the government may withhold certain records relating to the Central Intelligence Agency’s use of enhanced interrogation techniques – including waterboarding – from public disclosure under the federal Freedom of Information Act.

The four categories of records at issue were documents related to the CIA’s use of waterboarding as an interrogation technique, a photograph of detainee Abu Zubaydah taken while in CIA custody, and portions of two Office of Legal Counsel (OLC) memoranda analyzing the use of enhanced interrogation techniques on detainees under CIA custody abroad

After conducting an in camera review of the records, the U.S. Court of Appeals in New York City (2d Cir.) agreed with the agencies’ claims that all of those records comprised classified national security information or intelligence "sources and methods" information specifically barred from disclosure by law, and could therefore be withheld under corresponding exemptions in the FOIA.

Regarding records related to the waterboarding and the photograph, the court upheld the lower district court’s decision in favor of the agencies, ruling that those records are exempt from disclosure as intelligence sources and methods that may be protected under the National Security Act of 1947 and the Central Intelligence Act of 1949.

The American Civil Liberties Union unsuccessfully argued that the files related to waterboarding could not relate to an “intelligence method” because of President Obama's 2009 executive order banning waterboarding as an intelligence-gathering technique.

“In our view, such an ‘illegality’ inquiry is clearly beyond the scope and purpose of FOIA,” wrote Judge Richard Wesley, writing for the unanimous three-judge panel.

In holding that the photograph could also be withheld, the court relied on a declaration submitted by former CIA director Leon Panetta claiming that the photograph of Zubaydah contained “TOP SECRET operational information concerning” his interrogation. The court agreed with the government that it was exempt from disclosure under FOIA as it was a record related to intelligence sources or methods.

“[W]e observe that a photograph depicting a person in CIA custody discloses far more than the person’s identity,” the court added.

While the lower district court granted the ACLU’s request for the redacted, classified portions of the two OLC memoranda, the appeals court overturned the decision on the basis that they were properly classified, as their release would “reveal the existence and scope of a highly classified, active intelligence activity.”

“[P]ublic disclosure of certain government records may not always be in the public interest,” wrote Wesley.

“We’re disappointed,” said Alexander Abdo, a staff attorney with the ACLU’s National Security Project who argued the case for the organization and the other plaintiff groups, including Physicians for Human Rights, Veterans for Common Sense, the Center for Constitutional Rights, and Veterans for Peace. “The court has allowed the CIA to keep secret what the CIA wants.”

According to the opinion and the ACLU’s website, it has obtained documents relating to the CIA’s destruction of 92 video recordings that depicted the enhanced interrogation of detainees, including Zubaydah. The ACLU has denounced the intelligence methods revealed in the CIA records as torture and has argued that government officials involved should be held publicly accountable through the release of the remaining documents.

As the opinion notes, the ACLU and other organizations initially submitted the FOIA requests underlying the litigation in 2003 to the CIA, Department of Justice and other federal agencies, and another in 2005 to the OLC. They sought access to records related to the treatment of U.S. detainees, their deaths while in U.S. custody, and their post-9/11 rendition to countries known to use torture or illegal interrogation tactics.

Since its initial request, the ACLU has received access to more than 100,000 pages of written records detailing the apparent abuse and torture of detainees during U.S. interrogations, according to its website.

“FOIA can be an extraordinary tool for learning what the government is doing, especially for learning about government abuses of power. But in terms of national security, courts have too often taken a hands-off approach,” blocking the public’s access to information, said Abdo.

The U.S. Attorney’s Office for the Southern District of New York declined to comment on the ruling.

The plaintiffs have not yet decided if they will appeal the ruling to the U.S. Supreme Court, said Abdo.

Related Reporters Committee resources:

· Federal Open Government Guide: 1. National security

· Federal Open Government Guide: 3. Statutory exemption