The CIA said in court papers late Monday that it intends to withhold hundreds of pages of documents related to the Bush administration’s torture and detention policies on grounds that disclosing the information will threaten national security.
In a 33-page declaration, Wendy M. Hilton, the associate information officer of the CIA’s National Clandestine Service, said the documents the agency is withholding are “primarily” those “from closed investigations conducted by the CIA’s OIG [Office of Inspector General] of alleged improprieties in the treatment of detainees in Iraq and Afghanistan.
“These documents include cables, OIG interview reports of CIA officers, emails written by CIA officers, memoranda and other inter-office communications, memoranda for the record, presentations and handwritten notes,” Hilton’s declaration states in reference to documents the CIA has withheld related to Justice Department legal opinions authorizing torture and documents that were used to write a 2004 inspector general’s report that reviewed the program.
Hilton said the documents, one of which includes a September 2001 executive order signed by George W. Bush establishing “black site” prisons where the torture of high-value detainees took place, could not be released even in redacted form.
“The documents contain information relating to how the CIA conducted counterterrorism operations against al-Qa’ida and affiliated groups,” she added. “This highly sensitive information details how the CIA developed its program, coordinated with various other elements of the United States Government, targeted and exploited terrorists, worked with its liaison partners, and developed information that was essential to protecting the United States.
Hilton said if the CIA disclosed the documents it would likely “degrade the U.S.G.’s [U.S. government's] ability to effectively question terrorist detainees and elicit information necessary to protect the American people.”
“These interrogation methods are integral to the U.S.G.’s interrogation program…,” she added.
However, Obama signed an executive order Jan. 22 banning the use of waterboarding and other methods of torture. So it’s unclear from Hilton’s affidavit how the government’s ability to interrogate suspected terrorists would be compromised if that is the case.
Hilton also provided a separate 42-page declaration outlining reasons the agency would continue to withhold transcripts related to Combatant Status Review Tribunals for specific detainees captured in the “war on terror.”
The CIA’s refusal to turn over the documents comes one week after the release of a May 2004 redacted report prepared by the agency’s inspector general on the Bush administration’s torture and detention of high-value detainees at “black site” prisons. The report called into question the effectiveness of using brutal torture techniques to extract intelligence and concluded that its use did not thwart any imminent terrorist attacks.
Attorney General Eric Holder appointed a federal prosecutor to conduct a “preliminary review” of about 10 cases where CIA interrogators and/or contractors deviated from Justice Department legal opinions that authorized agency operatives to use specific methods, such as waterboarding, during interrogations.
Holder and the Obama administration have been viciously attacked by the likes of former Vice President Dick Cheney and Republicans for initiating a review of those cases. Cheney, in an interview last Sunday on Fox News, called the decision an “outrageous political act.”
In court papers, the CIA also argued that information about the Bush administration’s torture program thus far should be strictly limited to the historical context and the legal underpinnings. But that doesn’t square with the fact that the government has already released dozens of pages of documents that go far beyond the abstract details about the interrogations.
For example, last week, in addition to the CiA IG report, the CIA released a document that for the first time described in extraordinary detail the process of “rendition” and how the systematic torture of high-value detainees is implemented once those prisoners are carted off to “black site” prisons.
The documents at issue, which a federal judge ordered the Obama administration to turn over to the ACLU by Aug. 31 or cite reasons for continuing to withhold them, provide a detailed backstory about the Bush administration’s torture program and shows how the systematic torture of detainees had been managed and who the top officials were that implemented and oversaw what became policy.
The ACLU filed Freedom of Information Act lawsuits against the Bush administration for access to documents describing the treatment of detainees in U.S. custody. Thus far, the ACLU has obtained more than 100,000 pages of documents.
The CIA did, however, did turn over a 203-page index that describes the contents of the documents that remain classified. The agency said many of those documents were being withheld because it contains “information relating to intelligence activities (including special activities), intelligence sources, intelligence methods, and foreign relations or foreign activities of the United States, including confidential sources, that is properly classified…and is thus protected from disclosure.” [Marcy Wheeler has compiled an extensive list of the materials.]
Bush’s Action Memorandum
One document is dated is described as a “a four page memo and a two page memo that is undated and a one page email dated February 7, 2002. The email is informing a CIA officer that the writer of the email has been tasked by [Office of General Counsel] to review memos. The emailer also mentions they need to follow up in the issue of whether paws could be tried in the U.S. criminal court.”
Feb. 7, 2002 was the same date that George W. Bush issued an action memorandum which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention.
Several documents contain information about anticipated litigation related to the torture program during the weeks prior to the issuance of an Aug. 1, 2002 Justice Department legal opinion authorizing torture.
“This document is a 2-page email chain between CIA attorneys,” the index says, describing a July 10, 2002 document. “The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.”
That email was written three days before John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, provided CIA Acting General Counsel John Rizzo with legal advice on how to avoid violating torture laws.
Another document is “a 4-page draft plan dated March 16, 2002 from two CIA officers detailing proposed enhanced interrogation techniques.”
The officers are believed to be Dr. Bruce Jessen and James Mitchell, who were actually contractors hired by the CIA and are widely credited with helping to design the torture program and the list of specific techniques to be used against high-value detainees.
The March 16, 2002 document was drafted two weeks before the CIA and Pakistani intelligence agents captured Abu Zubaydah, the first high-value detainee who was also the first prisoner to be subjected to waterboarding and other torture techniques.
The interrogation plan was also drafted just three days after Yoo drafted a legal memo authorizing the CIA to “render” suspected terrorists to “black site” prisons in other countries where they were tortured.
Another document related to the capture of Zubaydah indicates the CIA took an active role in his interrogation shortly after he was captured. Zubaydah’s initial interrogation had been handled by the FBI whose agents had used the rapport building approach to obtain intelligence information from him.
However, a one-page e-mail dated April 5, 2002 “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah” indicates CIA became involved in the interrogation and likely moved toward more coercive techniques.
That seems to be backed up by an April 16, 2002 document described as “a 4-page Memorandum for the Record by two CIA officers dated April 16, 2002 that outlines pre-decisional discussions among CIA attorneys and officers, as well as attorneys from other government agencies that occurred in anticipation of a counter-terrorism operation.”
The two CIA officers referred to in the document may also be Mitchell and Jessen.
According to previously released documents and numerous public statements by Bush administration officials, Zubaydah was not subjected to so-called “enhanced interrogation techniques” until after Yoo drafted the Aug. 1, 2002 torture memo.
One undated document “contains 26 pages of photos and a handwritten coversheet detailing a classified intelligence method.”
While it has been known that the CIA videotaped its interrogations of Zubaydah and another high-value detainee it’s unknown if interrogators also photographed those interrogations as the description of the withheld document would appear to indicate.
Some withheld documents also contain information about the CIA’s desire to increase the level of torture against detainees. A 38-page document dated Nov. 2, 2002 outlines “the need for and proposing a more intense counterterrorism program, for detained unlawful combatants. It discusses certain proposed interrogation techniques, medical information, and operational intelligence.”
The documents that followed during that month were from CIA headquarters in Langley and relate to the capture and torture of Abd Al-Rahim Al Nashirim, the alleged mastermind of the U.S.S. Cole bombing.
A Nov. 9, 2002 “one page cable from CIA Headquarters to the field. The cable contains information relating to the detention of al-Nashiri” and a Nov. 12, 2002 document, which “is a one page email chain between CIA officers with a one page cable attached. The document relates to the interrogation of a terrorist suspect conducted within the CIA’s counter-terrorism program.”
Another document, dated, Nov. 21, 2002 is a “five page cable from the field to CIA Headquarters. The cable contains information relating to the interrogation of al-Nashiri.”
It was Nashiri’s interrogation that sparked Helgerson’s investigation of the CIA’s torture and detention program.
The review was launched in January 2003 after the agency’s Office of the Inspector General received word from agency officials that “unauthorized interrogation techniques” were used against Al Nashiri.
Al Nashiri was captured in late October 2002, was waterboarded 12 days after his capture, and a month later was singled out in a speech George W. Bush gave at the fairgrounds in Shreveport, Louisiana.
“The other day we hauled a guy in named al-Nashiri. It’s not a household name here in America. I can understand why some go blank when they hear his name. But he was the al-Qaeda commander in the Gulf States,” Bush said on Dec. 3, 2002.
“Let me just put it to you this way: He no longer has the capacity to do what he did in the past, which was to mastermind the USS Cole that killed – the plot on the Cole that killed American soldiers. He’s out of action for the good of the world.
“Sometimes you’ll see it and sometimes you won’t. But you’ve got to know that in this war against terror, the doctrine stands that says, ‘Either you’re with us or you’re with the terrorists.’”
About three weeks after Bush’s speech, according to the report, one interrogator, who pretended to be an operative from a Middle East intelligence agency, threatened to rape Al Nashiri’s mother in front of him. Interrogators also threatened Al Nashiri with a gun and revved power drill while he stood naked and hooded during the interrogation.
“The debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information….Nashiri sat shackled and [he] racked the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day, the debriefer used the power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill,” the report says.
It is a violation of he Convention Against Torture to threaten a prisoner in custody of the U.S. government with death.
The CIA also withheld, according to the index, “a 129 page draft document [dated Feb. 24, 2004], regarding the review of the CIA’s interrogation program, with comments and suggestions from a CIA attorney on how the document could be improved.”
That document likely refers to a draft of CIA Inspector General John Helgerson’s report on the torture and detention program.
Lack of Transparency
Although the Obama administration has released hundreds of pages of previously classified Bush administration documents that have shed enormous light on the highly secretive torture and detention program, as evidenced by the public disclosure of the CIA IG report, the Obama White House continues to withhold crucial documents that would no doubt provide valuable insight into the roles played by top Bush officials during the torture program’s five-year life span.
Such disclosures, however, would certainly lead to calls for a wide-ranging investigation of those officials, which some key Democrats and civil liberties groups have already called for, as opposed to the limited scope review involving CIA officers and contractors Holder authorized last week.
Obama has said he is not interested in “looking backwards” and he has fought hard against Congressional efforts to launch a “truth commission” that would delve into the Bush administration’s broad claims of executive power and probe the policies that lead to torture and domestic surveillance.
For organizations like the ACLU that have waged years long legal battles to pry loose secret documents, Obama’s continued resistance flies in the face of the open government and transparency promises he had made immediately after taking office.
Indeed. On Jan. 21, Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act (FOIA) requests and promised to make the federal government more transparent.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
But in some highly charged FOIA cases Obama has inherited, his Justice Department has adopted the same legal arguments used by the Bush administration that were previously rejected by federal courts in arguing against disclosure.
In opposing a federal court order demanding the administration release of more than two-dozen detainee abuse photos, a matter that the Obama administration has now appealed to the U.S. Supreme Court, the White House has said national security would be threatened, an argument the 2nd Circuit Court of Appeals rejected when it was used by the Bush administration.
But what is the more likely scenario is that disclosing those images would lead to calls for accountability, force Congress to take action, and that in turn would jeopardize Obama’s domestic priorities such overhauling the healthcare system—a policy initiative he has staked his presidency on.
Jameel Jaffer, director of the ACLU’s National Security Project, said the Obama administration’s message is inconsistent with what Justice Department lawyers state in court.
“The CIA’s justification for withholding the documents is entirely incompatible with the Obama administration’s stated commitment to ending torture and restoring governmental transparency. On the one hand, President Obama has publicly recognized that torture undermines the rule of law and America’s standing in the world, but on the other, the CIA continues to argue in court that it cannot disclose information about its torture techniques because it would jeopardize the CIA’s interrogation program,” Jaffer said. “The CIA’s arguments are utterly disconnected from the Obama administration’s stated positions. The agency seems to be disregarding altogether the important policy changes that President Obama announced immediately after he took office.”