CIA resists request for abuse data
WASHINGTON -- The CIA is refusing to disclose any information about abuse of detainees in Afghanistan and at the US naval base at Guantanamo Bay, Cuba, invoking a legal precedent that involved a secret project by billionaire Howard Hughes to recover a sunken Soviet nuclear submarine in the 1970s.
The CIA allegedly oversaw interrogations of top-level detainees, and some investigators think the agency's tactics are at the heart of the question of whether the Bush administration has authorized torture. But nearly all the disclosures concerning abuses have come from other agencies, including the Pentagon and the FBI.
The CIA traditionally has invoked special protections aimed at shielding its intelligence-gathering operations, but the American Civil Liberties Union, which is suing to obtain the records, and some independent observers think the agency's insistence on secrecy is inappropriate in this instance.
Megan Lewis, a lawyer for the ACLU, said she would file an objection in early January to the CIA's efforts to avoid scrutiny.
The CIA asserts that it is protected according to the submarine case, in which a judge allowed the agency to neither confirm nor deny that it possessed records of a deep-sea mining project thought to be a front to recover a sunken Soviet submarine. The CIA has refused to acknowledge whether it has documents and photographs related to abuse of detainees.
Among the records sought in the ongoing Freedom of Information Act case pursued by the ACLU are a Justice Department legal opinion about interrogation techniques and pictures of John Walker Lindh, an American who was detained with Taliban forces in Afghanistan.
In the same suit, the FBI chose to turn over troves of e-mails regarding accusations of prisoner abuse that were made public last week.
"CIA . . . asserts that it is not able to confirm or deny whether it has any records relating to its purported involvement in these specific activities related to the treatment, death, or rendition of detainees in US custody because to do so would tend to reveal classified information and intelligence sources and methods that are protected from disclosure," the agency said in a court filing Oct. 15.
The lawsuit has met stiff resistance from some other government agencies, most notably the Pentagon. Legal wrangling continues over Pentagon assertions that certain documents are exempt from disclosure on the grounds of national security. Still, all agencies involved other than the CIA have answered whether sought-after documents exist.
In seeking to keep its role in the detainee-abuse scandal from public view, the CIA has invoked the so-called "Glomar response," named for the Glomar Explorer, the deep-sea mining ship built by a Hughes-owned company for the CIA. The operation was exposed in 1975, leading to a Freedom of Information Act suit that established the precedent.
Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists who has extensive experience in Freedom of Information Act cases, said the use of the Glomar response is relatively rare and is particularly questionable in the context of records of detainee abuse. A more typical use, he suggested, would be a request for information about a secret technology or installation.
"The Glomar response has its place in FOIA litigation, but it doesn't follow that every time it's invoked, it is legitimate," he said.
A spokesman for the US attorney for the Southern District of New York in Manhattan, which is representing the CIA in the lawsuit filed in June, declined to comment.
Most of the documents in a 70-item list sought by the ACLU and other civil rights groups were derived from media coverage since the disclosures of abuse at Abu Ghraib prison. The rights groups have received more than 9,000 pages of documents from other government agencies, but have received nothing from the CIA.
The agency's response stands in stark contrast to the FBI, which issued a series of e-mails describing agents' outrage at witnessing physical and mental harm inflicted on detainees at Guantanamo and in Iraq, often during interrogation sessions. Among the items sought from the CIA:
An alleged memorandum issued in late 2001 from the Justice Department to the CIA setting boundaries for interrogations in the light of the United Nations Convention Against Torture.
From December 2001, alleged photographs, documents, and materials said to depict mistreatment of Lindh while in the custody of the Defense Department or the CIA.
An alleged memo from the Justice Department from August 2002 specifying interrogation methods that the CIA may use against top Al Qaeda members.
An alleged study from September 2002 by the CIA raising questions on the significance of detainees at Guantanamo Bay.
Alleged communications from 2002 and 2003 among CIA, FBI, and Defense Intelligence Agency officials about the questioning of the most important detainees and the use of new tactics such as "physical roughing up; sensory, food, and sleep deprivation"; and a water pit in which detainees must stand on tiptoe to keep from drowning, according to a June 2004 article in Newsweek.
A directive allegedly signed by President Bush that grants the CIA authority to set up detention facilities outside the United States.
Lewis said the ACLU is certain to challenge the CIA's use of the Glomar case to shield the alleged documents. She singled out the legal memos about the torture convention as particularly egregious.
The memos "look like particularly inappropriate uses of the Glomar response because they are basically legal analyses of laws against torture and the use of certain harsher interrogation techniques, which on its face does not look like it would compromise national security," Lewis said.
"They're just using [Glomar] to withhold these documents and to protect themselves. And it's very hard for anyone on the outside to pierce that veil. They just said, 'We can't confirm or deny it exists.' "