Administration Fights Disclosure on Two Fronts

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.

US 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 US 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 (ACLU).

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 August 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, CIA Director Leon Panetta said the documents sought by the ACLU in a long-running Freedom of Information Act (FOIA) lawsuit the civil liberties organization filed against 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; emails 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 said. "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 Guantanamo 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, 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 its field agents sent back to headquarters, citing several exemptions under the FOIA, 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."

Some of those cables are included in the 580 documents Panetta asked Judge Hellerstein to authorize the agency to keep under wraps. The CIA has identified a sampling of 65 of those documents that it prepared for review and possible release that Panetta told Hellerstein must be withheld to protect national security.

"Al Qa'ida has a very effective propaganda operation. When the abuse of Iraqi detainees at the Abu Ghraib prison was disclosed, al-Qa'ida made very effective use of that information in extremist websites that recruit jihadists and solicit financial support. Information concerning the details of the [enhanced interrogation techniques] being applied would provide ready-made ammunition for al-Qa'ida propaganda.

"The resultant damage to national security would likely be exceptionally grave, and the withholding of this information is therefore proper under" certain FOIA exemptions.

The Obama administration is applying the same argument - a threat to national security - in explaining its reasons for not turning over to the ACLU 44 photographs that depict US soldiers abusing detainees in Iraq and Afghanistan, despite the fact that a detailed description of the photographs at issue have been publicly available for some time.

In that case, the Obama administration is now going above and beyond what the Bush administration had done in attempting to block the materials.

The administration is appealing the case to the Supreme Court and at the same time looking to Congress to pass legislation to block release of the photographs. Late Monday, Sens. Joe Lieberman and Lindsey Graham threatened to shut down Congress if legislation they sponsored blocking the release of all photographs showing US soldiers abusing prisoners is stripped from the Iraq/Afghanistan war supplemental funding bill.

Both cases mark an about-face on the open-government policies that President Obama proclaimed during his first days in office.

On January 21, he signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of FOIA requests and promised to make the federal government more transparent.

"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's order said. "In responding to requests under the FOIA, executive branch agenci?s should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

It's becoming increasingly clear that after the disclosure of the "torture memos" in April and the backlash that ensued, that Obama is aiming to avoid further criticism by continuing the Bush administration's era of secrecy.

The argument Panetta has laid out about the reasons the documents in the interrogation tapes case should continue to be guarded by secrecy does not appear to be credible.

According to veteran CIA analyst Melvin Goodman, Panetta has become entrenched in CIA bureaucracy.

"It is obvious Panetta wants to make no waves at the CIA," Goodman said.

"It is extremely difficult for any outsider to make his mark within a bureaucracy as parochial and insular as the one at CIA," said Goodman, who spent more than two decades at the agency. "Panetta, unfortunately, has tried to ingratiate himself with the negative elements. Panetta's first mistake was to keep in place all of the holdovers from the era of George Tenet and Porter Goss, who were responsible for the culture of cover-up created at the CIA.

"In keeping Steven Kappes as the deputy director, Panetta signaled that there would be no change at the Agency and no punishment for corruption," Goodman added. "Kappes, after all, was the ideological driver for those policies that Obama and Panetta criticized before Panetta's confirmation. Instead of reaching out to contrarians or dissidents from the intelligence community, Panetta has relied solely on the leadership he inherited, the very people who have a vested interest in making sure that nothing changes."

Panetta's about-face stands in stark contrast to statements he made in a series of op-eds in the Monterey County Herald and other publications last year. In a March 8, 2008, column titled "Americans Reject Fear Tactics," Panetta wrote that "all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike."

"Our forefathers prohibited 'cruel and unusual punishment' because that was how tyrants and despots ruled in the 1700's. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law."

While stopping short of demanding investigations and prosecutions, Panetta certainly made it clear that Bush was acting above the law.

In a column published in the Washington Monthly last summer titled "No Torture, No Exceptions," Panetta wrote, "there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, 'to preserve, protect, and defend the Constitution.' It's what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force."

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

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