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.”
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?
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?
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.”
Possibly, after that, we’ll probably have to go to court. But, we would much rather this be done without litigation. And, you know, President Obama did issue new FOIA guidance that said they’re going to withhold documents only when disclosure would result in an identifiable national security harm. While these are still early days, I think the release of these memos is an indication that he takes that promise seriously.