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“The CIA’s declaration uses national security as
a pretext for withholding evidence that high-level government officials in all
likelihood authorized abusive techniques that amount to torture,” said ACLU
attorney Amrit Singh. “This declaration is especially disturbing because it
suggests that unlawful interrogation techniques cleared by the Justice
Department for use by the CIA still remain in effect. The American public has a
right to know how the government is treating its prisoners.”
One of
the documents is described as a “14-page memorandum dated 17 September 2001 from
President Bush to the Director of the CIA pertaining to the CIA’s authorization
to detain terrorists.” According to the brief, of the 14 pages, 12 pages are “a
notification memorandum” from the president to the National Security Council
regarding a “clandestine intelligence activity.” The ACLU said this revelation
raises questions regarding the extent to which Condoleezza Rice was involved in
establishing the CIA detention program as National Security
Advisor.
In its declaration, the CIA also says that the Bush memo
is so “Top Secret” that National Security Council officials created a “special
access program” governing access to the document. It states that “the name of
the special access program is itself classified SECRET,” meaning that the CIA
believes that the disclosure of the program’s name “could be expected to result
in serious danger to the nation’s security.”
The other two
documents are legal memoranda prepared for the CIA by the Justice Department’s
Office of Legal Counsel. One is an 18-page legal memorandum dated August 1, 2002
“advising the CIA regarding interrogation methods it may use against al Qaeda
members.” It includes information “regarding potential interrogation methods and
the context in which their use was contemplated.” It also discuses “alternative
interrogation methods,” a phrase that was echoed by President Bush in a
September 2006 speech promoting the Military Commissions Act. According to news
reports, interrogation methods specifically authorized by the undisclosed
Justice Department memo and used by the CIA include “waterboarding,” a technique
meant to induce the perception of drowning, and the use of “stress positions.”
The ACLU said that the CIA’s declaration suggests that the August
1, 2002 memo remains in effect. In particular, the CIA argues that public
disclosure of the methods cleared by the Justice Department would allow
terrorists “to resist cooperation.”
The second Office of Legal
Counsel document being withheld is a “31-page undated, unsigned, draft legal
memorandum…that interprets the Convention Against Torture.” According to the
CIA, the document is a “preliminary” version of an August 1, 2002 memo prepared
for Alberto Gonzales by Assistant Attorney General Jay S. Bybee. The CIA said it
is withholding the document on attorney work-product and “deliberative process”
grounds, noting that disclosure of the draft would permit the public to compare
versions and “identify the similarities and differences between the draft and
final legal documents.”
The final Bybee memorandum contended that
abuse does not rise to the level of torture under U.S. law unless it inflicts
pain “equivalent in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily function, or even death.” After
public outcry, that memorandum was rescinded by the administration in December
2004.
The CIA previously claimed that it could neither deny nor
confirm the mere existence of the documents without jeopardizing national
security. But the agency backed away from that claim after President Bush
acknowledged in his September speech that the CIA does in fact detain and
interrogate terrorism suspects overseas.
“Through these memos, the
president and Office of Legal Counsel created a legal framework that was
specifically intended to allow the CIA to violate both U.S. and international
law,” said Jameel Jaffer, Deputy Director of the ACLU’s National Security
Program. “While national security sometimes requires secrecy, it is increasingly
clear that these documents are being kept secret not for national security
reasons but for political ones.”
The documents discussed in the
CIA’s declaration have been the subject of Congressional interest as well. In a
November 16, 2006 letter to Attorney General Alberto Gonzales, Senator Patrick
Leahy requested these among other documents, and also sought clarification from
the Justice Department on whether the August 1, 2002 interrogation techniques
memo has been modified or withdrawn since 2002. In a letter dated December
22, 2006, the Justice Department refused to release the documents to Senator
Leahy and did not deny that the August 1, 2002 interrogation techniques memo
remains in effect.
The CIA declaration is online at: www.aclu.org/ pdfs/safefree/20070110/ cia_dorn_declaration_items_1_29_61.pdf
The
ACLU also released today Defense Department declarations purporting to explain
why the department is withholding numerous other documents related to prisoner
abuse. Those declarations are available online at: www.aclu.org/torturefoia
To
date, more than 100,000 pages of government documents have been released in
response to the ACLU’s Freedom of Information Act (FOIA) lawsuit. The ACLU has
been posting these documents online at: www.aclu.org/torturefoia
Attorneys
in the FOIA case are Lawrence Lustberg and Melanca Clark of the New Jersey-based
law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.; Jaffer,
Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the
New York Civil Liberties Union; and Bill Goodman and Michael Ratner of the
Center for Constitutional Rights.