ACLU Learns of Third Secret Torture Memo by Gonzales Justice Department

November 6, 2007 12:00 am

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Group Presses for Release of Memos in Pending Lawsuit; Hearing Scheduled for November 13

NEW YORK – Legal papers filed in federal court Monday in a lawsuit brought by the American Civil Liberties Union and other organizations disclose that the Office of Legal Counsel (OLC) for the Department of Justice issued three secret memos in May 2005 relating to the interrogation of detainees in CIA custody. Until now, the existence of only two of those memos had been reported and it was not known precisely when the memos had been written. The memos are believed to have authorized the CIA to use extremely harsh interrogation methods including waterboarding.

“These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue.”

On October 4, 2007, The New York Times published a front-page article disclosing that the OLC authored two memoranda in 2005 relating to the interrogation of prisoners held by the CIA. The Times reported that the first was issued “soon after” February, when Alberto Gonzales assumed the post of attorney general, and explicitly authorized interrogators to use combinations of psychological “enhanced” interrogation practices including waterboarding, head slapping, and stress positions. The second memo, according to The Times, was dated “[l]ater that year” and declared that none of the CIA’s interrogation methods violated a law being considered by Congress that outlawed “cruel, inhuman and degrading” treatment.

The memos should have been – but were not – identified and processed for the ACLU as part of its Freedom of Information Act (FOIA) lawsuit requesting information on the treatment and interrogation of detainees in U.S. custody. In response to legal papers filed by the ACLU on October 24 objecting to that omission and requesting the release of the two memos, the government filed papers Monday stating:

“OLC has reviewed its opinions from that time frame and has determined that there were in fact three opinions issued to CIA relating to the interrogation of detainees in CIA custody … Two of the opinions were issued on May 10, 2005 … the third was issued on May 30, 2005 … OLC has not located any legal opinions issued to CIA from January 31, 2005 through May 9, 2005 that relate to the interrogation of detainees in CIA custody.” (emphasis added)

In addition to neglecting to provide the relevant memos to the ACLU as part of its FOIA lawsuit, the government has also withheld the documents from key senators in a congressional inquiry.

“The Justice Department’s failure to identify and disclose these memos is yet another example of its efforts to thwart public inquiry into its authorization of illegal interrogation methods,” said Amrit Singh, a staff attorney with the ACLU’s Immigrants’ Rights Project. “The memos must immediately be disclosed, and high ranking officials must be held accountable for authorizing torture.”

The OLC memos – and the possibility of others that might remain unknown – take on particular meaning as the confirmation process continues today in Congress regarding the nomination of Michael Mukasey for attorney general. Mukasey has been the subject of intense criticism over his refusal to identify waterboarding as torture.

A hearing regarding the ACLU’s request for the release of OLC torture memos is scheduled for November 13, 2007 at 4 p.m. Eastern Standard Time in federal court in New York.

A copy of the ACLU’s brief requesting production of outstanding documents is online at:

The government’s response to the ACLU’s brief is online at:

More information on the torture and abuse of detainees in U.S. military custody and an index of documents received by the ACLU in its FOIA lawsuit can be found online at:

Many of these documents are also contained and summarized in a recently published book by Jaffer and Singh, Administration of Torture. More information is available online at:

Attorneys in the FOIA case are Lawrence S. Lustberg and Melanca D. 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 Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.

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