ACLU loses FOIA Case Asking For Torture Evidence

In a disappointing ruling for government transparency advocates, the Second Circuit Court of Appeals held the government could keep secret “cables describing waterboarding; a photograph of a detainee, Abu Zubaydah, taken around the time that he was subjected to the ‘enhanced interrogation techniques’; and a short phrase that appears in several Justice Department memos referring to a ‘source of authority.’” This suit came on the heels of revelations that tapes allegedly showing waterboarding were destroyed by a CIA officer.

The court accepted the government’s argument that waterboarding was an “intelligence method” and therefore exempt from disclose. The Obama administration argued in favor of this interpretation despite previously banning waterboarding as torture. As the ACLU’s Alexander Abdo wrote, the ruling means “the CIA can effectively decide for itself what Americans are allowed to learn about the torture committed in their name.”

In response to the ruling, the New York Times published an editorial, “A Court Covers Up,” lamenting yet another case of the government using secrecy to shield accountability, saying the “judges should have given the government’s overwrought claims of national security and secrecy special scrutiny, not extreme deference.”

As Abdo put it, “Were any other country to claim that national security required the suppression of details of torture, Americans would be rightfully shocked and incredulous.”

Leaks When They Want Them, Crimes When They Don’t

A FOIA request by the government watchdog group Judicial Watch revealed emails that show Obama administration officials gave Oscar-winning filmmaker Katherine Bigalow exclusive access to details about the classified Osama bin Laden raid while publicly warning other government officials that they would face investigation if they did the same.

This disclosure underscores the hypocrisy of the administration’s unprecedented prosecution of whistleblowers. Under the Obama administration, six former government employees who leaked information to the press have been charged under the Espionage Act—more than all other administrations combined. Apparently, whether disclosure of classified information is a crime is not based on the sensitivity of the information, but rather whether the information makes the government look bad.

WikiLeaks and the Bradley Manning Case

A group of journalists including Jeremy Scahill, Amy Goodman, Glenn Greenwald, and Kevin Gosztola joined WikiLeaks and their counsel, the Center for Constitutional Rights (CCR), in suing the federal government over the extreme secrecy in the trial of Bradley Manning. CCR asked the court “to grant the public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings, none of which have been made public to date.” CCR argues that the trial has been “even less transparent than the controversial military commission proceedings ongoing at Guantánamo Bay.”

Meanwhile, lawyers for Guantanamo detainees asked a court to lift restrictions on reading the WikiLeaked Guantanamo files. Despite being publicly available online for over a year, the lawyers are only allowed to view the cables on non-government computers but are prohibited from downloading, saving, or printing them. These restrictions are utterly nonsensical: in effect, an attorney could violate the restriction simply by virtue of the browser settings used when accessing the document. And, depending on the definition of “download” the government chose to invoke, the very act of accessing the documents online – which the attorneys are expressly permitted to do – could constitute a violation of the restrictions. The government filed a response to the attorneys’ motion challenging the restrictions – naturally, it was classified.

In other WikiLeaks news, declassified Australian diplomatic cables, obtained by The Age in Australia, confirm the US is still actively investigating WikiLeaks for obtaining and then publishing classified information. As we have detailed previously, this investigation represents a dangerous and virtually unprecendented attack on the First Amendment and freedom of the press.

More FOIA Problems For Justice Department

The FOIA Project released a study on the number of FOIA requests that ended in lawsuits because the government refused to comply. The Justice Department again came out looking the worst, as they were involved in 30% of the lawsuits, despite only receiving a total of 10% of the requests. Last year, DOJ won the National Security Archive’s “Rosemary Award” for worst open government performance.

During the same week, the ACLU added another case to the agency’s total: the ACLU sued the Justice Department for the release of information related to the DOJ’s use of pen registers and trap and trace devices. A federal law requires DOJ to report to Congress annually on the government’s use of pen registers and trap and trace devices, including: (1) The period of interceptions authorized by each order and the number and duration of any extensions of each order (2) The specific offenses for which each order was granted (3) The total number of investigations that involved orders (4) The total number of facilities (like phones) affected (5) The district applying for and the person authorizing each order

As the ACLU stated, “The Department of Justice is required to disclose these statistics to Congress each year, yet routinely fails to do so.”