For over five years, a team of lawyers from the American Civil Liberties Union has been waging a sprawling battle seeking documents pertaining to the United States’s detainee and interrogation policies. They won a major victory on April 16, when the Obama Justice Department agreed to release four key memos produced by the Office of Legal Counsel in 2002 and 2005.
Jameel Jaffer is an ACLU lawyer who litigated the case. Last month, he told CJR about the Freedom of Information Act lawsuit that netted the documents, how hints from investigative reporting aided its progress, and which documents are still under wraps.
Clint Hendler: So the memos’ release stems from a FOIA request, right?
Jameel Jaffer: We filed the initial FOIA in October 2003, and we filed another in June 2004 right after the Abu Ghraib photographs were broadcast. The requests were very general, asking for documents relating to the treatment and abuse of prisoners in US custody. They were filed with a full set of agencies including the Justice Department, but also the CIA and the Defense Department and the State Department.
CH: One of the ironies of FOIA is that in some sense you have to describe the records you’re after.
JJ: At the time we filed the request, we knew very little about what kinds of documents the government had in its custody. There had been a couple of really great news reports, one by Dana Priest and Bart Gellman at the Washington Post about the CIA’s endorsement of stress positions and one by Carlotta Gall at the New York Times about the two deaths at Bagram. We just wanted to fish around a little, and figure out if these sort of abuses were aberrational or if they were systemic.
CH: And the more systemic they were, the more likely there were going to be more documents…
JJ: Right. I think it’s not a matter of how many documents but really the nature of the documents. We thought that if they were aberrational abuses, we might be able to get Criminal Investigative Division files from the Defense Department on specific instances, or in the case of the Bagram deaths, the autopsy reports. But if the abuses were systemic we thought there would be additional documents at the level of policy.
I won’t pretend that we thought we had a good chance of getting very much of this stuff. We didn’t. In part we thought that filing the request would be a way of bringing attention to this issue and perhaps putting some pressure on the administration.
The main reason we didn’t expect to get very much is because it never occurred to us that there was this immense torture program that had been authorized at the senior-most levels of the Bush administration. We thought there was a pattern of abuse, maybe something more than what The New York Times and the Washington Post had reported. That occurred to us. But the thought that lawyers in the Justice Department were working away on memos that authorized CIA interrogators to use methods that the U.S. had once prosecuted as war crimes? That never occurred to us. In retrospect, we were naïve. But we just didn’t expect it.
But, after the Abu Ghraib photos broke, I think it became clear to us and to many people that even if abuse was aberrational, it was sufficiently serious and sufficiently common that it was a problem that the administration should be addressing.
So in June 2004 we went to court in New York and we asked Judge Hellerstein to order the government to process our request expeditiously. There was a whole bunch of briefing in the late summer, but to make a long story short he ultimately ordered them to begin processing our request.
Even at that point we didn’t have a whole lot of information about what kinds of documents were in the government’s custody. But we did have a slew of new news reports, which came after Abu Ghraib, some of which would have one sentence referencing, for example, a legal memo that was written in 2004 or a legal memo that was written in 2002, and that was all we knew. One article mentioned a September 2001 Presidential Directive authorizing the CIA to set up secret detention centers overseas. We put together a list and we said to the various agencies, “Look, here’s a list to start with, but we don’t see this list as exhaustive, but you need to start somewhere.”