JJ: After The New York Times reported the existence of these two Bradbury memos we filed a motion asking it to require the government to process these memos, which they hadn’t identified to us, in response to our FOIA request. We said these are clearly within the scope of the request, we don’t know why they haven’t identified them to us until now. And the government said the reason we haven’t identified them to you is because we used a January 2005 cut-off date for your FOIA request with respect to the OLC.
CH: How did they say that they picked that date?
JJ: It was completely arbitrary. In fact, they had identified some documents that post-dated May of 2005, some from June of 2005.
So, Judge Hellerstein said, “Look, I don’t care what the cut-off date was. It’s only three documents. They’re clearly within the scope of what the plaintiffs were looking for. I don’t think it’s a big burden on the Justice Department to process those memos.”
If we had lost that motion, what we would have done is just file a new FOIA request for those documents. It would have added months to the litigation and the government knew that, they understood that it was a stalling tactic. It was a very technical victory for us, but a very important one because…
CH: …because it shaved months off ?
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?