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.”
CH: Of course, a lot of times reporters gather much more information than what pops up in their stories. The editors say “No, this isn’t going to interest our readers, we’re getting in the weeds here.” Would you ever get in touch with the reporters to ask what else they knew about these documents?
JJ: Yes. And some reporters have been very helpful to us. One who I think was especially helpful was Stephen Gray, who helped us a lot with the rendition issue. He’s not the only one who has been helpful but he stands out in my mind.
But, you know, there’s also a certain amount of competition between the reporters, and not everybody is that willing to share information that they haven’t already published.
CH: Were there other reporters who wanted to keep advocacy organizations like the ACLU at arm’s length, who were more hesitant to speak to you?
JJ: There were certainly reporters who were hesitant to share information. I don’t think it was because we are an advocacy organization—I think they would have been even more hesitant to share with another news organization—but as you know, for a reporter information is everything, and people are, for understandable reasons, sometimes reluctant to share what they may be able to use themselves in the next day’s story. It’s just a fact about the way the media world works.
CH: You said you filed the suit in part to bring attention, and that you didn’t really expect that you would get all that much. Is that because of precedents in national security FOIA litigations?
JJ: Yes, absolutely. It is very difficult to obtain a document the government is withholding on national security grounds. It almost never happens.
One thing I should emphasize is that it’s not that we filed the request and then all this information started coming in the door. We’ve filed probably 250 briefs in this case, literally. The appeals have gone up the Second Circuit three times. Judge Hellerstein has issued probably a dozen published opinions and maybe three dozen unpublished orders and opinions.
Along the way there were disclosures either through leaks to the media or through documents given to us through the FOIA, and we learned about documents that we didn’t know about earlier. It just became a sprawling litigation, with multiple branches in the district court, and several branches in the appeals court as well. It required an enormous investment in the ACLU’s resources, but also enormous investment of litigation resources by cooperating attorneys. We have a law firm, Gibbons Del Deo, and they have been working on this case since 2003, and putting, I don’t even know how many, but, by this point several thousand hours. It’s part of their pro-bono program, which Larry Lustberg runs. It’s great. We would never have been able to do this without their help.
CH: From all I’ve heard from people who’ve done national security-related FOIA requests going back to the Reagan era, this is how it works. You start with a tiny request and then it becomes a sprawling litigation and you probably wind up getting more than you ever though you would.
JJ: Right, more than you ever knew existed.
CH: How did we get to the point where April 16 was a key deadline?