HOW MUCH FREEDOM OF INFORMATION?

By William Fisher


The U.S. Central Intelligence Agency has refused to release more than 7,000 documents related to its programs of secret detentions, renditions, and torture, and is asking a federal judge to dismiss a Freedom of Information lawsuit demanding disclosure.

The refusal came last week in the CIA’s response to a lawsuit brought by three human rights groups, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR) and the International Human Rights Clinic at New York University School of Law (NYU IHRC).

The CIA filed a motion with the court for a summary judgment to end the lawsuit and avoid turning over more than 7,000 documents related to its secret “ghost” detention and extraordinary rendition programs.

The CIA claimed that it did not have to release the documents because many consist of correspondence with the White House or top Bush administration officials, or because they are between parties seeking legal advice on the programs, including guidance on the legality of certain interrogation procedures. The CIA confirmed that it requested -- and received -- legal advice from attorneys at the Department of Justice Office of Legal Counsel concerning these procedures.

The case is significant for a number of reasons. Among them, said CCR Executive Director Vincent Warren, it marks the first time the CIA “has acknowledged that it has well over 7000 documents that relate to the torture and disappearance of men.”

And Curt Goering, AIUSA senior deputy executive director, said, “Given what we already know about documents written by Bush administration officials trying to justify torture and other human rights crimes, one does not need a fertile imagination to conclude that the real reason for refusing to disclose these documents has more to do with avoiding disclosure of criminal activity than national security.”

He called on the CIA to “stop stonewalling congressional oversight committees and release vital documents related to the program of secret detentions, renditions, and torture.”

The three human rights organizations will file their response brief in court next month.

These organizations filed their Freedom of Information Act (FOIA) requests last June with several U.S. government agencies, including the CIA. These requests sought information about individuals who are -- or have been -- held by the U.S. government or detained with U.S. involvement, and about whom there is no public record.

The requests also sought information about the government’s legal justifications for its secret detention and extraordinary rendition program. Comprehensive information about the identities and locations of prisoners in CIA custody -- as well as the conditions of their detention and the specific interrogation methods used against them -- has never been publicly revealed.

Emi MacLean, a CCR attorney, told IPS, “The CIA has been running a program of enforced disappearance and torture. What we are asking for is fundamental to a democratic society -- some essential transparency and accountability. We need to know what is being done in our name. Indeed, the documents withheld by the government demonstrate that this basic accountability is what they have been worried about from the very beginning.”

“The CIA has employed illegal techniques such as torture, enforced disappearances, and extraordinary rendition,” said Meg Satterthwaite, Director of the NYU IHRC. “It cannot use FOIA exemptions as a shield to hide its violations of U.S. and international law.”

In its legal filings, the CIA acknowledged that this program “will continue.” Some prisoners have been transferred to prisons in other countries for proxy detention where they face the risk of torture and where they continue to be held secretly, without charge or trial. Human rights reports indicate that the fate and whereabouts of at least 30 people believed to have been held in secret U.S. custody remain unknown.

In September 2006, President Bush publicly acknowledged the existence of CIA-operated secret prisons. At the same time, 14 detainees from these facilities were transferred to Guantánamo and several more have arrived since. The administration has admitted to using so-called “alternative interrogation procedures” on those held in the CIA program, including waterboarding. The international community and the United States, in other contexts, have unequivocally deemed these techniques torture.

One of the centers of particular interest in this case is a CCR client, Majid Khan. Khan emigrated from his native Pakistan to the U.S. in 1996 and is a legal U.S. resident. On a trip to Pakistan to visit his wife, Khan was abducted by Pakistani officials and transferred to one of the CIA’s secret prisons. Among those transferred to Guantanamo Bay to be tried before a Military Commission, he was the first of the so-called "high value" detainees to have legal representation.

Congress has also been unable to obtain CIA records. The few documents released in the human rights groups’ lawsuit demonstrate a pattern of withholding information from Congress.

In a pointed 2003 bipartisan letter, then-Chair and Ranking Member of the House Select Committee on Intelligence requested that the then CIA Director George Tenet provide senior level briefings on the treatment of, and information obtained by, three men known to be held in secret CIA detention.” He told the CIA that their committee was “frustrated with the quality of the information” provided in past briefings.

The CIA appears to have avoided answering detailed requests for specific information, responding instead with form letters and references to briefings. In 2005, these practices led to a forceful letter from Michigan Democratic Senator Carl Levin, now the Chairman of the Senate Armed Services Committee, who was attempting to investigate CIA involvement in detainee deaths. In his letter, Levin noted that “The lack of CIA cooperation with the investigations to date has left significant omissions in the record.”

The Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson in 1966. It allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, but grants a number of exemptions to Federal agencies.