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Summer 2009 Bulletin
FOIA and Access
Obama and Courts Seek Balance between National Security and Transparency in Terrorism Cases
The Obama administration continued to fight the release of some Bush-era classified detainee treatment materials, while releasing redacted versions of others in response to FOIA requests. In the meantime, federal courts faced decisions about whether certain materials involved in terrorism trials should be made public.
President Barack Obama continued to retreat from a previous stance that government photographs depicting detainee mistreatment at U.S. military facilities in Iraq and Afghanistan should be made public, and his administration is appealing a September 2008 2nd Circuit U.S. Court of Appeals ruling that ordered their release to the Supreme Court.
“It was my judgment – informed by my national security team – that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war,” Obama said in a May 21 speech, according to his prepared remarks published on The Washington Post’s Web site. “Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm’s way.”
“I had to strike the right balance between transparency and national security,” Obama said in his speech. “I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book.”
The American Civil Liberties Union (ACLU) sued for the release of the photos under the Freedom of Information Act, 5 U.S.C. § 552, and won both at the federal district court and at the 2nd Circuit U.S. Court of Appeals in American Civil Liberties Union v. Department of Defense, 543 F.3d 59 (2d Cir. 2008). (See “Detainee Abuse Photos Ordered Released” in the Fall 2008 Silha Bulletin for more on the case.)
Obama first announced his intention to resist releasing the detainee photos on May 13, 2009, about a month after the administration told a federal district court judge it would not oppose an order to release the photos. Under an agreement between the Justice Department and the ACLU, the photos were supposed to be made public by May 28. (See “Obama’s Policies Promote Openness; Some Secrecy Persists” in the Spring 2009 Silha Bulletin.)
On May 28, the Department of Defense and the Department of the Army filed a motion in the 2nd Circuit to recall the court’s mandate that the photos be released, allowing the government to keep the photos secret while filing a petition for a writ of certiorari with the Supreme Court. The motion also mentioned the possibility that Congress could pass legislation during the government’s appeal that would exempt the photos from the FOIA.
“We recognize that this motion comes after the government initially determined not to seek certiorari and government counsel informed [the ACLU] that the photographs would be released. But the time for seeking Supreme Court review has not expired, and extraordinary circumstances have intervened,” the Defense Department motion said.
The ACLU filed a response opposing the government’s motion on June 1. “A unanimous panel of this court has already addressed and rejected the Government’s argument that the photographs may lawfully be suppressed because they could be used to incite violence and generate propaganda,” the response said. “In seeking to further delay disclosure of these images, the Government’s motion is fundamentally inconsistent with FOIA’s basic purpose.”
According to a June 12, 2009 Associated Press (AP) story, the 2nd Circuit issued a one-paragraph ruling on June 11 that allows the government to keep the detainee pictures secret while it is seeking to take its case to the Supreme Court.
ACLU lawyer Amrit Singh said in the AP story that the ruling “further delays the disclosure of photographs that are critical to informing the debate about the treatment of U.S. prisoners.”
Meanwhile, the U.S. Senate passed The Detainee Photographic Records Protection Act of 2009 on June 17, which would allow the government to withhold the detainee photos from FOIA requests. A similar bill, H.R. 2875, was introduced in the House of Representatives on June 15 and referred to the Armed Services Committee. If passed into law, the bill would specifically exempt the detainee photos from the FOIA.
In a separate FOIA lawsuit, the Obama administration has continued to resist the release of CIA documents that describe the contents of 92 destroyed videotapes that depicted prisoner interrogations at secret CIA prisons. The ACLU sued to obtain the materials in 2004, in American Civil Liberties Union v. Department of Defense, No. 1:04-cv-04151-AKH (S.D.N.Y. filed June 2, 2004).
According to a June 9 story in The Washington Post, the Obama administration objected to the release of the documents, saying that making them public would endanger national security and benefit al-Qaida’s recruitment efforts.
In a June 8 declaration filed with the U.S. District Court for the Southern District of New York, CIA Director Leon Panetta defended the classification of records describing the contents of the videotapes and their destruction by the CIA in 2005.
“I have determined that the disclosure of intelligence about al-Qaeda reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed,” Panetta wrote in the declaration.
According to The Washington Post, the Panetta statement represented “a new assertion” by the Obama administration that the CIA should be allowed to keep information from the previous administration secret.
The Post reported that the materials the CIA is seeking to withhold include detainee photographs, notes taken after reviewing the videotapes, an account by a CIA lawyer detailing agency policy and legal guidance about the destruction of the videotapes, an e-mail to CIA managers that summarizes agency opinions about the tapes, and e-mails discussing what the CIA should say publicly about their destruction.
Panetta argued that none of the CIA documents at issue in the case should be released, and that there should be a distinction between the administration’s April release of Justice Department memos authorizing the interrogations and the CIA’s desire to keep its own documents pertaining to the specific handling of detainees classified.
The “disclosure of explicit details of specific interrogations” would provide al-Qaida “with propaganda it could use to recruit and raise funds,” Panetta said in the declaration. Panetta also submitted a classified statement to the court along with his declaration, which he said explains why detainees could use the documents to evade questions in the future.
Jameel Jaffer, director of the ACLU’s national security program, said in The Washington Post story that it is “grim” and “troubling” for the Obama administration to say that the information about purported abuse should be withheld because it might be used against the United States. Jaffer said that such an argument amounts to an assertion that “the greater the abuse, the more important it is that it should remain secret.” The ACLU is convinced that the public should have “access to the complete record of what took place in the CIA’s prisons and on whose authority,” Jaffer said.
The Post reported that district court Judge Alvin Hellerstein, to whom Panetta submitted his declaration, has repeatedly denied CIA motions requesting that the case be dismissed. Hellerstein has ordered the CIA to surrender some of the records and provide details of others it is withholding. The agency responded by giving the documents to the court under seal.
Panetta said in the declaration that his goal in withholding the documents was “in no way driven by a desire to prevent embarrassment for the U.S. government or the CIA, or to suppress evidence of any unlawful conduct,” but that his “sole purpose is to prevent the exceptionally grave damage to the national security reasonably likely to occur from public disclosure of any portion of these documents.”
On August 24 the Obama administration released multiple documents from the CIA inspector general and the Department of Justice’s Office of Legal Counsel detailing enhanced interrogation techniques used between 2002 and 2007, in response to the 2004 ACLU lawsuit.
An August 25 story in The New York Times reported that, although large portions of the 109-page inspector general report were blacked out, “it gives new details about a variety of abuses inside the C.I.A.’s overseas prisons.”
In an August 25 column on the Web site Findlaw.com, attorney Joanne Mariner said too much information was redacted from the documents. “If we live long enough to see the report’s full declassification, we may learn a lot more. Some 35 pages of the 109-page report were almost entirely blacked out, including long sections on waterboarding,” Mariner wrote. “One longs to know precisely what ‘activities’ were mentioned – what activities could merit redaction even when so many other abuses were revealed.”
The ACLU released a statement on August 24 that said it will “fight for the disclosure of the torture files that are still secret.”
“Accountability for torture is a legal, political, and moral imperative,” the statement said.
Federal Judges Order Release of Allegations, Evidence in Terror Cases
On June 1, 2009 a federal district court judge in Washington, D.C. ordered the federal government to release unclassified versions of allegations and evidence that the government said justified the continued imprisonment of more than 100 Guantanamo Bay detainees.
Judge Thomas Hogan, of the U.S. District Court for the District of Columbia, wrote in In re Guantanamo Bay Detainee Litigation, 624 F.Supp.2d 27 (D.D.C. 2009), that the government was attempting “to usurp the Court’s discretion to seal judicial records” with its arguments in the case.
“The issue of what to do with the detainees at Guantanamo Bay remains a source of great public interest and debate,” Hogan wrote. “Providing the public with access to the charges levied against these detainees … ensures greater oversight of the detentions and these proceedings.”
According to a June 2 AP story, the Justice Department had been filing unclassified versions of its legal documents under seal, so that the documents could only be seen by judges, attorneys, and government officials working on the cases. Justice Department officials said the practice was necessary to protect national security after they discovered that some unclassified records mistakenly contained some classified information.
According to the AP, defense lawyers in the case objected to the government’s method of filing, and The New York Times, the AP, and USA Today all “joined the fight,” arguing that the government was keeping valuable information from the public.
Hogan agreed. “As long as public access does not come at the expense of the litigation interests of petitioners or national security, the court believes the public has a common law right to access the returns,” he wrote in his opinion.
The opinion included a judicial order that, if the government wished to keep any unclassified factual returns secret, it must specifically request to do so by “highlighting with a colored marker the exact words or lines the government seeks to be deemed protected” and also include “a memorandum explaining why each word or line should be protected.”
Justice Department spokesman Dean Boyd said in the June 2 AP story that the documents were never meant to be sealed indefinitely. He said the government had limited resources for classification and was using them to create declassified versions of the documents that detainees’ attorneys could share with their clients and witnesses.
Media attorneys said the order struck the right balance. “A court doesn’t have to accept the government’s word that keeping court records secret protects important security interests,” said AP general counsel Dave Tomlin in the June 2 story. “The government must try to prove it, and it’s the court’s job to decide if they’ve succeeded.”
Meanwhile, several news organizations successfully petitioned a federal judge in Georgia to release audio and video evidence in a domestic terrorism trial in Atlanta.
Judge William Duffey of the U.S. District Court for the Northern District of Georgia issued a minute order on June 1, 2009 requiring the government to make one copy of all the audio and video evidence available to the media. Atlanta attorney Thomas Clyde, who represented the media groups in the matter, said Duffey made statements from the bench indicating that, because the evidence had been used in prior hearings, the law strongly supported its disclosure.
The AP, The Atlanta Journal-Constitution, the Canadian Broadcasting Corporation, CNN, and WSB-TV filed a joint motion on May 28 seeking access to audio interviews with defendant Syed Haris Ahmed, as well as videotape that Ahmed and his co-defendant allegedly created in an effort to research potential terrorism targets.
According to a May 29 AP story, Ahmed’s attorneys had asked that the videotapes be sealed after they were filed as evidence in January 2008. A federal magistrate judge rejected the request, but said the order was under review by Duffey.
The news organizations’ May 28 petition in the case, United States v. Ahmed, 2009 WL 1370936, 2009 U.S. Dist. LEXIS 41188 (N.D. Ga. May 14, 2009), said the audio recordings of Ahmed’s interviews “communicate the demeanor, tone and conduct of Defendant Ahmed and the FBI agents during approximately 12 hours of interviews which were followed by Defendant Ahmed’s arrest and indictment. Just as this information was relevant to the Court in determining whether Defendant Ahmed’s interviews were voluntary, it is relevant to the public’s understanding of this case.”
The memorandum requesting access said the First Amendment guaranteed the public a right of access to judicial proceedings in criminal cases, citing cases such as Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). The media groups argued, and Duffey agreed, that the right of access “extends to all records filed with the court.”
– Jacob Parsley
Silha Research Assistant
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
