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CIA Shifts Reasons for Torture Secrets

By Jason Leopold
June 10, 2009

Last month, the CIA told a federal court judge it could not abide by a court order and turn over detailed documents about the destruction of 92 interrogation videotapes because it would compromise the integrity of a special prosecutor’s criminal investigation into the matter.

U.S. District Court Judge Alvin Hellerstein responded by demanding a sworn declaration from special counsel John Durham confirming that to be the case.

In a subsequent court filing, Lev Dassin, acting U.S. Attorney for the Southern District of New York, backtracked and said the government would no longer rely on that argument. Dassin said a “senior government official” would soon submit a declaration explaining why the detailed documents about related to the videotaped interrogations should not be turned over to the American Civil Liberties Union.

Late Monday, the identity of the “senior government official” was revealed. It was CIA Director Leon Panetta, who said in a 24-page sworn declaration that the documents must be withheld in the interests of national security.

Panetta argued that the documents should not be disclosed because they contain top-secret information about the use of specific interrogation techniques, as opposed to abstract information about the legal justification to use those methods that were included in four Office of Legal Counsel (OLC) memos -- from 2002 and 2005 -- that President Barack Obama ordered to be released in April.

Additionally, Panetta said a detailed description of the cables “contains information relating to intelligence sources and intelligence methods that is specifically exempted from disclosure” under the National Security Act.

Plus, “disclosure of explicit details of specific interrogations where [enhanced interrogation techniques] were applied would provide al-Qa’ida with propaganda it could use to recruit and raise funds," Panetta said.

“Al Qa’ida has a very effective propaganda operation. When the abuse of Iraqi detainees at the Abu Ghraib prison was disclosed, al-Qa’ida made very effective use of that information in extremist websites that recruit jihadists and solicit financial support.

“Information concerning the details of the [enhanced interrogation techniques] being applied would provide ready-made ammunition for al-Qa’ida propaganda. The resultant damage to national security would likely be exceptionally grave, and the withholding of this information is therefore proper under” certain FOIA exemptions.

Arguments Challenged

However, Panetta’s arguments were disputed by ACLU officials.

"The public has a right to know not only which interrogation methods were authorized but how those unlawful methods were actually applied," said Jameel Jaffer, director of the ACLU National Security Project. "This information is particularly important because documents that are already public suggest that interrogators disregarded even the minimal limits that the memos set out."

Other civil liberties advocates noted that the Obama administration’s argument that disclosures of national security crimes could endanger national security could be a blanket excuse to conceal wide swaths of government wrongdoing.

"The CIA's withholding of documents because they might be used as propaganda would justify the greatest governmental suppression of the worst governmental misconduct,” said Alex Abdo, a fellow with the ACLU National Security Project.

“If we accept the CIA's rationale, the government could, for example, suppress any document discussing torture, Abu Ghraib or Guantánamo Bay."

The documents at issue, according to a description of the materials that accompanied Panetta’s declaration, included a photograph of the first “high-value” detainee, Abu Zubaydah, who was waterboarded 83 times during the month of August 2002 at a secret CIA “black site” prison.

Other documents were notes drafted after the videotaped interrogations were viewed; e-mails that raise questions about how the destruction of the tapes should be explained publicly; and other internal communications about the policies and legal guidance related to the videotaped interrogations and their destruction.

In previous court filings, the CIA disclosed that 12 of the 92 videotaped interrogations depict CIA interrogators subjecting Zubaydah and Abd al-Rahim al-Nashiri, alleged mastermind of the USS Cole attack in 2000, to brutal interrogation methods, including waterboarding. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells.


Last month, the CIA released indexes to the ACLU that showed how CIA interrogators provided top agency officials in Langley, Virginia, with daily "torture" updates of Zubaydah during the month of August 2002.

The extensive back-and-forth between CIA field operatives and agency officials in Langley likely included updates provided to senior Bush administration officials.

Some of those cables are included in the 580 documents the CIA has identified as relating specifically to the case, and Panetta is asking Judge Hellerstein to let the agency keep the materials under wraps for national security reasons.

The Obama administration has used similar arguments about a threat to national security in explaining why it won’t turn over to the ACLU 44 photographs that depict U.S. soldiers abusing detainees in Iraq and Afghanistan, despite the fact that a detailed description of the photographs at issue have been publicly available for some time.

In that case, the Obama administration is now going above and beyond what the Bush administration had done in attempting to block the materials.

While the Obama administration is appealing to the disclosure case to the Supreme Court, two pro-Iraq War senators, Joe Lieberman and Lindsey Graham, are pushing for legislation to block release of photographs showing U.S. soldiers mistreating detainees.

Sens. Lieberman and Graham threatened to shut down Congress if legislation they sponsored blocking the release of all such photographs is stripped from the Iraq/Afghanistan war supplemental funding bill.

Both situations – the photos and the documents regarding the videotapes – mark an about-face on the open-government policies that President Obama proclaimed during his first days in office.

On Jan. 21, he signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests and promised to make the federal government more transparent.

Backlash on Openness

However, it’s becoming increasingly clear that after he ordered the disclosure of the “torture memos” in April, the President was stung by a backlash against his decision and now is aiming to avoid further criticism from the Right.

According to former CIA analyst Melvin Goodman, Panetta has become entrenched in the CIA bureaucracy. "It is obvious Panetta wants to make no waves at the CIA," Goodman said.

"It is extremely difficult for any outsider to make his mark within a bureaucracy as parochial and insular as the one at CIA," said Goodman, who spent more than two decades at the agency.

"Panetta, unfortunately, has tried to ingratiate himself with the negative elements. Panetta's first mistake was to keep in place all of the holdovers from the era of George Tenet and Porter Goss, who were responsible for the culture of cover-up created at the CIA.

"In keeping Steven Kappes as the deputy director, Panetta signaled that there would be no change at the Agency and no punishment for corruption. Kappes, after all, was the ideological driver for those policies that Obama and Panetta criticized before Panetta's confirmation.

“Instead of reaching out to contrarians or dissidents from the intelligence community, Panetta has relied solely on the leadership he inherited, the very people who have a vested interest in making sure that nothing changes."

Jason Leopold has launched his own Web site, The Public Record, at

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