Saturday, August 29, 2009

DOJ May Skirt Court Order on Interrogation Documents

DOJ May Skirt Court Order on Interrogation Documents

In Response to ACLU Lawsuit, Federal Judge Ordered Files Released by Aug. 31

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The Obama administration may circumvent the spirit of a judge’s order to disclose hundreds of documents relating to the CIA’s Bush-era interrogation program, delivering instead generic descriptions of the documents and legal arguments for continued nondisclosure.

While the CIA inspector general’s 2004 report on torture was released Monday, a tranche of hundreds of supporting documents sought by an ongoing American Civil Liberties Union court case remain unseen. Those include 129 documents that provide some of the source material for the inspector general’s report; 138 other documents from the Justice Department’s Office of Legal Counsel about the interrogation program; and a Sept. 17, 2001 presidential order from George W. Bush authorizing the CIA to set up unacknowledged detention facilities around the world. The Justice Department released additional supporting documents earlier this week in addition to the inspector general’s report.

On July 20, Judge Allen Hellerstein of the U.S. District Court for the Southern District of New York ruled that the government needed to complete a review of the documents for declassification in response to an ACLU Freedom of Information Act lawsuit by Monday, Aug. 31. “As to the remaining 318 remanded CIA documents, the Government shall complete its processing of those documents by August 31, 2009, such that, on or before that date, the Government shall produce to the plaintiffs any portions of those 318 documents that are appropriate for release under [the Freedom of Information Act],”Hellerstein wrote in an order filed the following day.

But after The Washington Independent reported on the forthcoming disclosure, an administration official who insisted on anonymity emailed to say the report was inaccurate. Asked if there would be any disclosures on Monday, the official responded, “Nope.”

Hellerstein, however, ordered in July that the government had the option of submitting a so-called “Vaughn declaration,” a FOIA term detailing, as Hellerstein wrote, legal reasons “setting forth the justification for withholding the information.” Neither the official nor the U.S. Attorney’s office in New York replied to queries about the reasons for the nondisclosure. Hellerstein’s office, which declined to comment on the record, said the judge’s ruling from July 21 was still in effect and the Justice Department had yet to file any motions to extend the deadline for disclosure.

The ACLU and the Obama administration tussled earlier this year over a date for releasing the documents, with the Justice Department requesting and receiving four delays. In July, the U.S. Attorney’s office in New York, arguing that it couldn’t prepare any documents for declassification before Aug. 31, mused about a compromise. “The OIG report would come out August 24th, and then the remaining documents would come out August 31st,” Sean Lane, a lawyer in the U.S. Attorney’s office, told Hellerstein on July 15.

Lane did not return an email seeking comment on Friday. A Justice Department official emailed to clarify that the agency had released a number of the documents alongside the CIA inspector general’s report on Aug. 24 on a DVD. According to the ACLU’s tally, it had received eight of 137 documents supporting the CIA inspector general’s review and 43 of 181 Office of Legal Counsel documents.

The ACLU said late on Friday afternoon that it expected to receive a Vaughn declaration on Monday and not the documents themselves. “This past week, the Obama administration released documents that shed some much-needed light on theCIA’s rendition, detention and interrogation program,” said Jameel Jaffer, director of the ACLU’s national-security project. “Some of the most crucial documents, though, are still being withheld. The documents that the CIA is required to review for possible release by Monday would, if released, fill in some of the remaining gaps in the public record.”

Rachel Myers, a representative for the ACLU, said the organization expects to continue litigating to receive the still-withheld documents.

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