Government can withhold Bush-era waterboarding documents and photograph

The Court of Appeals has turned back an effort by the ACLU to get its hands on government documents relating to waterboarding in the course of the "war on terror." The Second Circuit finds that the Freedom of Information Act does not authorize this disclosure.

The case is American Civil Liberties Union v. Department of Justice, decided on May 21. Who wouldn't want these records? Waterboarding was among the most controversial practices of the Bush administration, which denied that this "enhanced interrogation technique" amounted to torture. In particular, the ACLU wants unredacted government memoranda concerning waterboarding and a photograph of Abu Zubaydah, a "high value" detainee who was in CIA custody abroad.

The Freedom of Information Act provides for the release of certain government records, but there are exemptions, including one for national security. The government invoked that exemption, arguing that they "related to 'intelligence methods,' 'intelligence activities,' and CIA 'functions.'" The plaintiffs responded that these records were subject to disclosure because President Obama announced in January 2009 that waterboarding is torture and therefore illegal.

The Court of Appeals (Wesley, Carney and Cederbaum [D.J.]) provides the backdrop: courts afford the government substantial deference in cases like this that involve national security. In keeping these records under wraps, the government's affidavits must "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. ... Ultimately, an agency may invoke a FOIA exemption if its justification 'appears logical or plausible.'”

Some of the records in this case were properly withheld because the president said so under an Executive Order in 1995. The Second Circuit looks at these materials in private and finds that they concern intelligence activity rather than a "source of authority." The Court says, "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." In particular,

The Government’s declarations describe in persuasive detail how revealing the redacted information would cause exceptionally grave harm to national security by (1) “damaging on-going activities and relationships with foreign intelligence liaison partners, which are of utmost importance to the CIA’s overseas intelligence operations,” (2) “alerting our adversaries of the existence of [the] intelligence method, which would give them the opportunity to alter their conduct to adapt to this new information and make future intelligence operations more dangerous and less effective”; and (3) “increasing the risks for all individuals involved in those operations, including CIA officers and assets.”

Other records in this case -- those relating to waterboarding -- are also kept under lock and key. The plaintiffs make the interesting argument that these records cannot be exempt under the "intelligence method" exception because "the President has declared the practice of waterboarding illegal. ... Plaintiffs argue that the CIA may decline to disclose only records relating to those intelligence methods that fall within the CIA’s charter. Plaintiffs argue that because an illegal activity cannot be said to 'fall within the Agency’s mandate to conduct foreign intelligence,' waterboarding cannot be an 'intelligence method' within the meaning of the CIA’s withholding authorities."

The Second Circuit rejects this argument as lacking any basis in FOIA law. The Court is also "wary of the practical difficulties that would likely arise were the category of protectable intelligence methods circumscribed as Plaintiffs propose." In particular, under the plaintiffs' theory, "an information officer and then the court would potentially be forced to engage in a complex inquiry to determine whether the government has sufficiently demonstrated the legality of the method to justify withholding."

So what about the torture photograph? Plaintiffs do not get that one, either. The Second Circuit says that "a photograph depicting a person in CIA custody discloses far more information than the person’s identity. 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.' The Government’s justification for withholding the photograph is thus both 'logical and plausible.'"