CIA Urges Judge To Keep Bush-Era Documents Sealed
Al-Qaeda Could Use Contents, Agency Says

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, June 9, 2009

The Obama administration objected yesterday to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees at secret prisons, arguing to a federal judge that doing so would endanger national security and benefit al-Qaeda's recruitment efforts.

In an affidavit, CIA Director Leon E. Panetta defended the classification of records describing the contents of the 92 videotapes, their destruction by the CIA in 2005 and what he called "sensitive operational information" about the interrogations.

The forced disclosure of such material to the American Civil Liberties Union "could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed," Panetta argued.

Although Panetta's statement is in keeping with his previous opposition to the disclosure of other information about the CIA's interrogation policies and practices during George W. Bush's presidency, it represents a new assertion by the Obama administration that the CIA should be allowed to keep such information secret. Bush's critics have long hoped that disclosure would pinpoint responsibility for actions they contend were abusive or illegal.

Last month, President Obama said he would seek to bar the release of photographs being sought by other nonprofit groups that depict abusive interrogations at military prisons during the Bush administration.

Panetta argued that none of the 65 CIA documents immediately at issue, which the ACLU has sought for several years in a Freedom of Information Act lawsuit, should be released. He asked U.S. District Judge Alvin K. Hellerstein to draw a legal distinction between the administration's release in April of Justice Department memos authorizing the harsh interrogations and the CIA's desire to keep classified its own documents detailing the specific handling of detainees at its secret facilities overseas.

He said that while the Justice Department memos discussed harsh interrogation "in the abstract," the CIA information was "of a qualitatively different nature" because it described the interrogation techniques "as applied in actual operations."

The "disclosure of explicit details of specific interrogations" would provide al-Qaeda "with propaganda it could use to recruit and raise funds," Panetta said, describing the information at issue as "ready-made ammunition." He also submitted a classified statement to the court that he said explains why detainees could use the contents to evade questions in the future, even though Obama has promised that the United States will not use the harsh interrogation techniques again.

Jameel Jaffer, director of the ACLU's national security program, said yesterday evening that it is "grim" and "troubling" for the Obama administration to say that information about purported abuses should be withheld because it might fuel anti-American propaganda. He said that amounts to an assertion that "the greater the abuse, the more important it is that it should remain secret." Jaffer said the ACLU is convinced that the public should have "access to the complete record of what took place in the CIA's prisons and on whose authority."

Although the ACLU first sought CIA documents related to harsh interrogations in 2004, it moved in 2007 to have the court hold the CIA in contempt following disclosures about the agency's destruction of the videotapes. The ACLU demanded as a remedy access to internal e-mails and other information that would reveal the contents of the videotapes and who participated, approved or endorsed their destruction.

Hellerstein has repeatedly denied CIA motions demanding that the case be dismissed, but has not declared the agency in contempt. Instead, he ordered the CIA to surrender some of the records and provide details of others it is withholding; the agency has responded mostly by giving the documents to the court under seal.

A federal prosecutor continues to investigate the destruction of the videotapes.

In total, the CIA has said that 580 documents are related to the ACLU's 2007 request; Panetta said that his statement applies to all of the 65 documents selected so far by the court for potential release and that the CIA will in the future consider releasing "non-operational documents" in the larger set.

In two exhibits given to the court along with Panetta's affidavit, the CIA said the material that must be withheld includes a photograph of Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, the first detainee that the CIA believed to be of high value; a lengthy handwritten summary of notes taken after reviewing the videotapes; a five-page account by a CIA lawyer detailing the agency's policy and legal guidance about the destruction of the videotapes; an e-mail to CIA managers summarizing the opinions of others about the tapes; a six-page account by an agency employee of a discussion with an agency lawyer about the tapes; and a series of e-mails discussing what the CIA should say publicly about the destruction.

It also said that one of the documents summarized "details of waterboard exposures from the destroyed videotapes," referring to a simulated-drowning technique that Obama and his appointees have said amounted to illegal torture.

Although the CIA frequently redacts sometimes extensive portions of the documents it releases, Panetta said he had "determined that no meaningful segregable information can be released from the operational documents at issue." Some, he said, were covered by attorney-client privilege, and nearly all contain personal information about CIA employees and others that would, if disclosed, "constitute a clearly unwarranted invasion of personal privacy."

Panetta also said he wanted to emphasize that his request was "in no way driven by a desire to prevent embarrassment for the U.S. government or the CIA, or to suppress evidence of any unlawful conduct." He said his only purpose was to prevent harm to U.S. national security and to protect intelligence sources and methods.

Staff researcher Julie Tate contributed to this report.

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