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.
CH: Now that some memos have come out now in an official release, a governmentally acknowledged release, does that change at all the degree to which former officials can speak about the stuff in the documents?
JJ: Yes. They’ve declassified this material so people who previously couldn’t talk about legal theories and specific techniques are now free to do that.
CH: What does the release of the OLC memos mean legally for other memos that you guys might be trying to a look at? Does the fact that these were released willingly and officially by the government in the course of a lawsuit change how easy it might be to get similar documents?
JJ: We will argue that, yes, to the extent that the government has disclosed and acknowledged facts about the CIA’s interrogation program, at the very least documents that relate to those facts can’t be properly withheld. I don’t think the government is going to dispute that proposition.
But the documents aren’t going to be identical. They’re going to relate to the same basic program, but be different sorts of documents. And it’s possible that there will be disputes about what can and can’t be released given the release of the memos. But we’re still hopeful that the new administration has made a decision not just that these memos can be released, but that certain information about the CIA’s program that, until now, has been withheld, not just can be released, but should be released to the public. So, rather than go directly to the court and say, “Order the government to release these other documents,” our first step will be to go to the administration and say, “Now that you’ve released these memos, we hope you’ll consider releasing the following documents as well.”