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The CIA's Shifting Reasons For Withholding Documents in the Torture Tapes Case

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Tuesday, 09 June 2009 13:10
Last Updated on Tuesday, 09 June 2009 14:04

Last month, the CIA told a federal court judge it could not abide by a court order and turn over detailed documents about the destruction of 92 interrogation videotapes because it would compromise the integrity of a special prosecutor's criminal investigation into the matter.

U.S. District Court Judge Alvin Hellerstein responded by demanding a sworn declaration from special counsel John Durham confirming that to be the case. In a subsequent court filing, Lev Dassin, acting U.S. Attorney for the Southern District of New York, backtracked and said the CIA would no longer rely on that argument.

Dassin added, however, that a "senior government official" would soon submit a declaration explaining why detailed documents related to the videotaped interrogations should not be turned over to the American Civil Liberties Union. In previous court filings, the CIA disclosed that 12 of the 92 videotaped interrogations depict CIA interrogators subjecting Abu Zubaydah, the first "high-value" detainee, and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, to brutal interrogation methods, including waterboarding.

The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. But it's unknown whether the interrogation tapes that predate the Aug. 1, 2002 "torture" memo depict "enhanced interrogation" techniques not yet approved by the Justice Department.

Late Monday, the identity of the "senior government official" was revealed.

In a 24-page sworn declaration click here CIA Director Leon Panetta said the documents sought by the ACLU in a long-running Freedom of Information Act lawsuit the civil liberties organization filed against the the Bush Administration must be withheld in the interest of national security.

The documents at issue, according to a description of the materials that accompanied Panetta's declaration, are a photograph of Zubaydah, who was waterboarded 83 times during the month of August 2002 at a secret CIA "black site" prison; notes drafted after the videotaped interrogations were viewed; e-mails that raise questions about how the destruction of the tapes should be explained publicly; and other internal communications about the policies and legal guidance related to the videotaped interrogations and their destruction.

Panetta argued that the documents should not be disclosed because it contains top-secret information about the use of specific interrogation techniques, as opposed to abstract information about the legal justification to use those methods that were included in Office of Legal Counsel (OLC) memos released in April.  

"The information in these documents would provide future terrorists with a guidebook on how to evade such questioning," Panetta's declaration says. "Additionally, disclosure of explicit details of specific interrogations where [enhanced interrogation techniques] were applied would provide al-Qa'ida with propaganda it could use to recruit and raise funds.

The ACLU was harshly critical of Panetta's argument.

"The CIA's withholding of documents because they might be used as propaganda would justify the greatest governmental suppression of the worst governmental misconduct. If we accept the CIA's rationale, the government could, for example, suppress any document discussing torture, Abu Ghraib or Guantánamo Bay," said Alex Abdo, a fellow with the ACLU National Security Project. "Certain governmental information must of course remain classified for security reasons, but terrorists should not have a veto power over what the public is allowed to know about governmental misconduct."

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA's interrogation of "war on terror" detainees.

Last month, as first reported by The Public Record, the CIA turned over indexes to the ACLU that showed how CIA interrogators provided top agency officials in Langley with daily "torture" updates of Zubaydah during the month of August 2002. The extensive back-and-forth between CIA field operatives and agency officials in Langley likely included updates provided to senior Bush administration officials.

The CIA and the Justice Department declined to turn over a more detailed description of the cables it's field agents sent back to headquarters citing several exemptions under the Freedom of Information Act, which Panetta further elaborated on in his declaration.

The agency had said it withheld a detailed description of the cables because it "contains information relating to intelligence sources and intelligence methods that is specifically exempted from disclosure" in accordance with the National Security Act. The documents also contain "information relating to the organization, functions, and names of person employed by the CIA that is specifically exempted from disclosure."

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Jason Leopold is Deputy Managing Editor of and the founding editor of the online investigative news magazine The Public Record, He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
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