NEW YORK - In response to an ongoing lawsuit brought by the American Civil Liberties Union, the CIA has acknowledged the existence of two documents authorizing it to detain and interrogate terrorism suspects overseas. For more than two years, the CIA had refused to either deny or confirm the existence of the documents and had argued in court that doing so could jeopardize national security.
"The CIA’s sudden reversal on these secret directives is yet more evidence that the Bush administration is misusing claims of national security to avoid public scrutiny," said ACLU Executive Director Anthony D. Romero. "Confusion about whether such a presidential order existed certainly led to the torture and abuse scandal that embarrassed America. With a new Congress and renewed subpoena power, we now need to look up the chain of command."
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 legal analysis specifying interrogation methods that the CIA may use against top Al-Qaeda members.
In legal papers previously filed before the court, the CIA claimed that national security would be gravely injured if the CIA were compelled to admit or deny even an "interest" in interrogating detainees. But in a letter to the ACLU dated November 10, the CIA reversed course and acknowledged that the Justice Department memorandum and presidential directive exist. The CIA continues to withhold the documents.
"We intend to press for the release of both of these documents," said Jameel Jaffer, an ACLU attorney involved in the case. "If President Bush and the Justice Department authorized the CIA to torture its prisoners, the public has a right to know."
A federal district court upheld the CIA’s refusal to confirm or deny the existence of the two documents, but the ACLU appealed that decision to the Second Circuit Court of Appeals. The appeal was argued by Megan Lewis, an attorney with Gibbons, Del Deo, Dolan, Griffinger & Vecchione. After President Bush confirmed in September that the United States does indeed maintain secret detention facilities abroad, the government withdrew its opposition to the ACLU’s appeal. However, the CIA said it will withhold the documents in their entirety and file a new declaration explaining its legal basis for doing so. That declaration is expected before November 30.
The ACLU will return to court in this case on November 20 to challenge the government’s withholding of 21 images depicting abuse of detainees by U.S. forces in Afghanistan and Iraq. The ACLU argues that the release of these images is crucial to understanding the command failures that led to the abuse.
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.; Jameel Jaffer, Amrit Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the NYCLU; and Bill Goodman and Michael Ratner of the Center for Constitutional Rights.
In a related matter, the ACLU will appear at a federal hearing in Richmond, VA on November 28 in the case of Khaled El-Masri, an innocent German man who was kidnapped by the CIA and transported to a secret site in Afghanistan where he was detained and abused. A district court upheld the CIA’s claim that the case could not proceed without disclosing state secrets. The ACLU appealed the decision, noting that accounts of El-Masri’s abduction have already appeared in news reports around the world and foreign governments have launched their own investigations into the matter.
More information on the El-Masri case is online at: www.aclu.org/rendition.
The November 10 CIA letter is online at: www.aclu.org/safefree/torture/27365lgl20061109.html
(Note: the CIA letter refers to the documents by numbers. For a list of corresponding documents go to www.aclu.org/safefree/torture/27380lgl20061114.html)