[JURIST] The American Civil Liberties Union [advocacy website] on Monday asked the US Court of Appeals for the Second Circuit [official website] to force the US Central Intelligence Agency [official website] to turn over two documents relating to the CIA's overseas interrogation practices under the ACLU's Freedom of Information Act (FOIA) [text; DOJ materials] request. The ACLU wants the documents - a directive signed by President Bush giving the CIA authority to set up detention centers outside the US to interrogate prisoners and a Department of Justice [official website] memorandum outlining interrogation methods the CIA could use against al Qaeda members - in order to force the CIA to reveal how much authority it has been given to interrogate detainees since Sept. 11, 2001. The government, however, has refused to confirm or deny that the documents exist, even though the ACLU argues that confirming the documents exist would not jeopardize national security or reveal intelligence gathering methods. The Second Circuit heard arguments Monday to determine whether the documents fall outside of FOIA as the government argues, but the court first needs to determine if the documents exist and what they contain. The government believes that confirming the existence of the documents, which have allegedly been linked to media reports, will reveal how the CIA operates and threaten national security. A federal district court judge ruled [PDF text] in favor of the government last fall, prompting the ACLU to appeal [PDF text].
The panel of three judges seemed split on the government's argument, trying to determine whether the CIA refused to confirm or deny the existence of the documents because of national security, or to avoid political embarrassment as the ACLU alleged. Peter Skinner, the lawyer representing the government, seemed apologetic during his vague arguments, noting that he could not explain much of the government's argument because of classified information. Anemona Hartocollis of the New York Times has more.