In May, shortly after the American Civil Liberties Union’s longstanding Freedom of Information lawsuit seeking documents illuminating the United States’s interrogation policies netted key memos from the Justice Department’s office of legal counsel, CJR spoke with ACLU lawyer Jameel Jaffer about the long course of the lawsuit, which was originally filed in 2003 in New York’s Southern District Court, and assigned to Judge Alvin Hellerstein.
Today, another widely anticipated document at issue in the same suit is expected to be released: a 2004 Central Intelligence Agency internal investigation into the agency’s interrogation program, conducted by the CIA’s Office of Inspector General (O.I.G.). CJR spoke with Amrit Singh, another ACLU attorney at work on the suit, about this document’s path to release. This is an edited transcript.
Clint Hendler: When did the ACLU learn of the Inspector General’s report?
Amrit Singh: The government had told us that there were documents that became subject to our request as a result of an I.G. report early on in the litigation. And subsequent news reports confirmed that the subject matter of that investigation was interrogation methods. So we’ve known for a while. But they gave us very few details relating to the specific investigation.
CH: The IG report was written in 2004. But that’s after the date of your original FOIA request.
AS: That’s correct. We filed a subsequent FOIA request in May of 2004 basically reiterating our request for the same information, so it’s part of the same lawsuit. The Bush administration withheld this report and records relating to it. A heavily redacted version was provided back in May 2008.
CH: Obviously you don’t know what’s in it until you see it, but what was missing from that version?
AS: Most of the information on the legality and effectiveness of the techniques was redacted. There was very little information— it was practically, virtually, completely redacted.
CH: What exemptions did the Bush administration claim to justify the redacted version of the report?
AS: The I.G. report was being held on grounds of claims of exemptions one and three. One is the exemption for properly classified information, and three is the FOIA provision that authorizes the withholding of records authorized for withholding by another statute. In this case, the CIA has a separate statute that allows it to withhold so-called intelligence sources and methods.
CH: So you had to argue that the document was not properly classified, and that it did not reveal sources and methods?
AS: Right—that the CIA could not lawfully withhold evidence of torture because that did not fall within the mandate of the agency.
CH: So the argument was that, if the CIA is not allowed to torture, releasing the document would not be revealing a protected source or method?
AS: Right. There was some information that was disclosed subsequent to a hearing, but most of the May 2008 redactions were upheld by Judge Hellerstein.
CH: Since the Obama administration took office, how many times has this document been promised?
AS: I think there’s been at least three pushed-off dates. I’m afraid it’s been pushed off so many times, that I’m afraid I can’t remember the original deadline. Basically, they continued to try to push off the deadline until we had a hearing earlier this summer before Judge Hellerstein. When the judge scheduled the hearing, he basically required the CIA to make haste. And at the hearing, the CIA said it would finally try to turn the report over by the 24th.
CH: The government picked the date.
AS: Yes, exactly.
CH: Hellerstein is a district judge, but this case has had some action in the circuit court. Why is he still the relevant judge?
AS: We challenged the redactions up to the Second Circuit. But on May 13, the government filed a motion to remand in the Second Circuit in the light of President Obama’s new interrogation directive, and said the landscape with respect to what was being withheld had changed.
CH: Is there legal relevance to the point that the document was no longer describing policies in effect?
AS: They’ve always sort of hedged their bets, and never promised upfront that documents will be released. All of this is cast in the broadest possible language and that, essentially, the remand was necessary because the record was stale, and President Obama’s interrogation directive had had some effect on what the agency could or could not withhold.
It basically meant that the issue would be relitigated before the district court, in the sense that the government would, to the extent it could, reconsider what information it could release. The government itself said it would basically reconsider its position, and then it turned over this. There was no ruling, really, before a judge.
CH: So these are not coming out as a result of Hellerstein’s order. These are coming out as a result of the Justice Department’s decision to no longer claim exemptions one and three.
AS: Correct. They’ve turned over more than they had turned over in the first round.
CH: The I.G. report has been widely anticipated for a long time—it’s supposed to be quite comprehensive, and I’ve heard it described as “the crown jewel.” What is still pending from the suit that we might see in a future release?
AS: There are numerous other CIA documents that apparently are going to be released to us on August 31. These apparently relate to the OIG investigation. There are additional legal memos being withheld by the government that we’ve sought through another FOIA request that is also the subject of litigation. There’s also the presidential directive authorizing the CIA to set up detention facilities abroad. That’s also the subject of the current litigation. There are a bunch of documents relating to interrogation methods applied by the Defense Department that are continuing to be withheld, and remain subject to the litigat