ACLU Challenges CIA Refusal to Admit Existence of Presidential Order on Detention Facilities Abroad

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ACLU Also Seeking Justice Department Memo Authorizing CIA Interrogation Techniques

NEW YORK -- In the wake of controversy over CIA “extraordinary rendition” policies and secret prisons, the American Civil Liberties Union has asked a federal court to reconsider its previous decision to uphold the CIA’s refusal to admit even the existence of two key documents on interrogation techniques and detention facilities abroad.

“As the Bush administration seeks to exempt the CIA from a proposed ban on torture, the American public has a right to know what interrogation techniques the CIA considers lawful and appropriate,” said ACLU Executive Director Anthony D. Romero. “President Bush himself has said, ‘we do not torture.’ If that’s the case, why does the government continue to fight tooth and nail to withhold documents that would shed light on CIA interrogation techniques?”

The two documents in question are a directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees, and a Justice Department memorandum specifying interrogation methods that the CIA may use against top Al-Qaeda members.

The ACLU argues that the CIA improperly invoked a legal argument known as the “Glomar” response, under which it can refuse to confirm or deny the existence of the documents requested under the Freedom of Information Act. In legal papers previously filed before the court, the CIA claimed that to even admit that the agency has an interest in detainee interrogations would be damaging to national security. However, in a legal motion filed late Friday, the ACLU argued that the CIA’s claims are not valid because its own director, Porter J. Goss, has publicly acknowledged that the CIA does in fact participate in the interrogation of detainees.

“By its own admission, the CIA has publicly acknowledged that it conducts detainee interrogations following the Justice Department’s legal advice,” said Amrit Singh, an attorney with the ACLU. “Yet, in sworn declarations before a court of law, the agency argued that confirming even an interest in interrogation techniques would cause damage to national security. Not only is this argument meritless, it is also misleading.”

Goss was quoted by several media outlets in November defending the CIA’s participation in interrogations, saying that the agency uses interrogation techniques that are “unique” and “innovative.” He has also acknowledged that the agency uses or has used methods that would be prohibited under Senator John McCain’s proposal to ban “cruel, inhuman or degrading” treatment of detainees.

Judge Alvin K. Hellerstein previously ruled that the CIA could invoke “Glomar” with respect to those two documents, but that the agency improperly invoked “Glomar” with respect to a separate Justice Department memorandum interpreting the Convention Against Torture, which had also been requested by the ACLU. Based on Goss’ recent statements, the ACLU is asking Judge Hellerstein to reconsider his decision with respect to the two documents for which he upheld the CIA’s “Glomar” response.

On November 22, the CIA informed Judge Hellerstein that it would not appeal the decision on the Convention Against Torture memorandum, unless the ACLU decides to appeal the rulings on the other two documents.

The ACLU’s motion is online at: www.aclu.org/natsec/warpowers/22585lgl20051212.html

To date, more than 77,000 pages of government documents have been released in response to the ACLU's Freedom of Information Act lawsuit. The ACLU has been posting these documents online at www.aclu.org/torturefoia.