Ruling That CIAs Waterboarding Records Are Exempt From FOIA Is Upheld

Records concerning waterboarding and a photograph of Abu Zubaydah during his interrogation in CIA custody are exempt from disclosure under the Freedom of Information Act, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

In the latest development in the long-running fight over classified materials documenting the use of enhanced interrogation techniques by the United States, the circuit said the act shields the material from public view even though President Barack Obama declared the practice of waterboarding illegal.

In American Civil Liberties Union v. Department of Justice, 10-4290-cv, a three-judge panel also held that the government is entitled to withhold redacted material from two memoranda relating to interrogations written by the Justice Department’s Office of Legal Counsel (OLC).

Second Circuit Judges Richard Wesley (See Profile), Susan Carney (See Profile) and Southern District Judge Miriam Goldman Cedarbaum (See Profile), sitting by designation, heard oral arguments on March 9 on cross appeals by the government and the plaintiffs from holdings by Southern District Judge Alvin Hellerstein (See Profile).

The American Civil Liberties Union, the Center for Constitutional Rights and other plaintiff organizations have been seeking records relating to detainee mistreatment, deaths in custody and the use of alleged torture since 2003. They have won access to 150,000 pages of documents through a number of rulings by the judge, including a 2009 order for documents relating to the CIA’s destruction of 92 videotapes of detainee interrogations.

Here, on the OLC memoranda, Hellerstein ruled against the government in 2010, holding that Exemption 1 of FOIA was inapplicable because the OLC memoranda pertained to a “source of authority” rather than a “method of interrogation.” The exemption covers information properly classified pursuant to an executive order in the interest of national defense or foreign policy.

Hellerstein ruled against the plaintiffs on a second matter, finding that a sampling of records related to the contents of the destroyed videotapes and a photo of Zubaydah could be withheld from disclosure under Exemption 3, which covers material specifically exempted from disclosure by statute.

On the OLC memoranda, the Second Circuit accepted the government’s argument that the redacted memoranda was properly classified because it pertains to an intelligence activity.

Judge Wesley wrote the court’s opinion.

“We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity,” he wrote. “We reject any notion that to sustain the Government’s assertion that the withheld information concerns a protected ‘intelligence activity’ under Executive Order No. 12,958 is effectively to exempt the CIA from FOIA’s mandate.”

The declarations “describe in persuasive detail how revealing the redacted information would cause exceptionally grave harm to national security,” he said, damaging ongoing activities and relationships with foreign intelligence partners, alerting adversaries to intelligence methods, and increasing the risk to CIA officers and assets.

Turning to the records relating to the interrogations and the photo, the circuit rejected the plaintiffs’ contention that the CIA can only withhold records relating to activities that fall within the CIA’s charter, and that waterboarding does not because it has been declared illegal by the president.

In support of their argument, the plaintiffs had cited the U.S. Supreme Court ruling in CIA v. Sims, 471 U.S. 159 (1985), but the Second Circuit said “Sims offers no support for Plaintiffs’ proposed limitation upon the CIA’s ability to protect information relating to intelligence methods.”

“The parties agree that waterboarding was an interrogation method used by the CIA in connection with its foreign intelligence-gathering activities,” Wesley said. “Because the CIA’s declarations are not contradicted by the record or undermined by any allegations of bad faith, the Government has sustained its burden of proving that the records relating to the CIA’s use of waterboarding are exempt from disclosure under FOIA Exemption 3.”

The circuit also was persuaded by then-CIA Director Leon Panetta’s 2009 declaration that sample records provided to Hellerstein and the photo contain “TOP SECRET operational information concerning the interrogations” of Zubaydah.

The government argued on appeal that the photo necessarily “relates to” an “intelligence source or method” because it records Zubaydah’s condition during the interrogation.

The circuit had viewed the image and the sample records together.

“Like the district court, we observe that a photograph depicting a person in CIA custody discloses far more information than the person’s identity,” Wesley said. “We agree with the district court that the image at issue here conveys an ‘aspect of information that is important to intelligence gathering…and that this information necessarily ‘relates to’ an ‘intelligence source or method.’”

Assistant U.S. Attorney Tara La Morte argued for the government. Alexander Abdo argued for the plaintiff organizations, who also include Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace.

“We are obviously disappointed,” Abdo said. “This is another court decision actually allowing the CIA to decide for itself what the public is allowed to know about the torture committed in its name.”

- Mark Hamblett can be contacted at mhamblett@alm.com.

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