JJ: Yes, and I think more so in this litigation than in most FOIA litigations time really was of the essence. There was this ongoing national debate about the CIA torture practices and the role of the Justice Department in authorizing those practices. We wanted that debate to be informed. We wanted the public to have access to this information now, not years after the debate had taken place.
So, then the Bush administration filed a brief in late 2008 saying that, “Alright now, Judge Hellerstein, you’ve required us to process these documents. We processed them. We’re withholding them on exemptions one, three and five.”
The government’s brief then was due in January of 2009. The government asked for an extension and we consented because we would much rather have this considered by the new administration …
CH: At that point knowing full well who it was going to be, it was after the election.
JJ: Right. When the new administration took office, they asked us for a new extension, which we granted. When it came time for their second extension, they asked for two weeks.
Remember, this isn’t a deadline for production of the memos. This is a deadline for filing a brief defending the withholding of the memos. As we went along, we became less and less excited about granting additional extensions. Initially, we were very willing to do it because we wanted the new administration to have time to consider the last administration’s positions.
So we told the government we would accept this two week extension if you send a letter to Judge Hellerstein saying you need the extra two weeks because you’re reviewing the memos for possible release. We just wanted to put some pressure on them to actually do that, and not just stall for time.
CH: And the government agreed?
JJ: And the government agreed. At the end of that two weeks, they asked for third extension, saying, “Look, we need another two weeks.” And we said we would consent to another two weeks only if you agree to review not only these Bradbury memos but also the Bybee memo of 2002. And they agreed to that. Ultimately, we agreed to the deadline of April 16, with a brief due on April 22 relating to any remaining redactions.
CH: Is there stuff in the redactions that you guys would still like released?
JJ: Even with minimal redactions, we’ll want to know what the nature of the redactions is. If what they’re redacting is the number of times these methods were used, that’s something we’ll likely oppose. There’s a whole sentence that’s redacted in the middle of the paragraph about the insect in a box, and I’m curious to know the nature of that redaction. They’re minimal, but that doesn’t mean we necessarily won’t oppose them. We do want to know a little more about why they made those redactions.
Again, this is only to one branch of the litigation. We have a pending appeal in the Second Circuit relating to, among other things, the CIA’s Inspector General report, examining the CIA’s interrogation and detention program. We have a version that the CIA made available to us in response to the FOIA request, but it’s very heavily redacted. We’ve been fighting for the release of that for several years. And there’s this contempt motion that we have pending against the CIA.
CH: Is that stemming from the destruction of the videotapes?
JJ: Yeah. We filed the contempt motion in December 2007, so it’s been pending for a long time. The judge has required the CIA to produce relating to the destruction of the tapes over the course of the next two or so months.
CH: What other documents are you guys still looking for?
JJ: One is this 2001 presidential directive that authorized the CIA to set up secret detention centers overseas, there are also a whole slew of Defense Department documents that we’re finding out about in the Second Circuit. Mainly, those are documents relating to the use of methods other than those approved by the Army Field Manual.
And then there’s a whole set of OLC memos from 2002 to 2005, dozens, that we’re finding out about in the Second Circuit. We know almost nothing about them. They are identified to us not even by title, they just say “memo, date, 20 pages.” All we know about them is that they are responsive to a request about the treatment of prisoners. Some of them may be drafts, and they may address tangential issues, or issues that were folded into other memos, so it’s possible that we’ve already got the crucial legal memos on this issue, but we don’t know.