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Second Circuit allows CIA to withhold interrogation documents

The US Court of Appeals for the Second Circuit [official website] on Monday ruled [opinion, PDF] that the Central Intelligence Agency (CIA) and the Department of Justice (DOJ) [official websites] do not have to release records pertaining to CIA detention and interrogation programs for prisoners in US custody overseas. The unanimous three-judge panel held that certain exemptions under the Freedom of Information Act (FOIA) [text; DOJ materials] shield the agencies from having to release documents sought in a longstanding FOIA request originally filed by American Civil Liberties Union (ACLU) [advocacy website; press release] and other civil liberties groups in 2003. The FOIA request [ACLU materials] sought disclosure of records concerning the treatment of detainees, the deaths of detainees while in US custody and the rendition, since September 11, 2001 [JURIST backgrounder], of detainees and other individuals to countries known to employ torture or illegal interrogation methods. The Second Circuit overturned a lower court decision compelling the DOJ Office of Legal Counsel (OLC) [official website] to comply with the FOIA request to disclose memoranda that were prepared by Bush administration lawyers to analyze the legality of certain interrogation techniques. The court "resolve[d] the matter easily" by invoking FOIA Exemption 1, which permits the government to withhold information "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" if that information has been "properly classified pursuant to such Executive order." The court held that the OLC interrogation memoranda pertained to an "intelligence activity" and so were exempt as properly classified under Executive Order No. 12,958, which authorized the classification of information concerning "intelligence activities (including special activities), intelligence sources or methods, or cryptology." Furthermore, the court affirmed the lower court's ruling that Exemption 3 justified the CIA's withholding of both destroyed videotapes of detainee interrogations and a post-waterboarding photograph of high-value detainee Abu Zubaydah [BBC News profile; JURIST news archive] taken while in CIA custody, because such materials "relate" to an "intelligence method" under the National Security Act.

Earlier this month the ACLU filed a motion [JURIST report] in the Guantanamo Bay [JURIST backgrounder] military court seeking access to hear what methods the CIA used when interrogating the five alleged 9/11 conspirators. A "high value" terror suspect [DNI profile] who was transferred to Guantanamo Bay [JURIST report] in 2006, Abu Zubaydah is a Palestinian and alleged al Qaeda facilitator who was captured in Pakistan in 2002 and taken to multiple CIA black sites, where he claims he was the victim of various human rights violations. According to Zubaydah, whose claims are supported by government intelligence reports, he was waterboarded approximately 83 times [CIA memo, PDF] while in Thailand, then flown from Morocco to a secret detention facility [JURIST news archive] in Lithuania in February 2005, where he was supposedly tortured once again. In October Zubayadah filed a complaint [JURIST report] against Lithuania in the European Court of Human Rights [official website] for torture and secret detention. At the time Lithuania is the only European country to have admitted directly working with CIA officials to provide secret detention facilities. Additionally, in December 2010 Zubaydah asked Polish prosecutors [JURIST report] to investigate his alleged abuse at a secret CIA prison in Poland, where he claims he was the victim of enhanced interrogation techniques. He also asked a US Combatant Status Review Tribunal to investigate his claims of torture [JURIST report] in 2007.

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