Declassification of the CIA interrogation program: Developments on three fronts

Last month I published a post setting forth the state of play regarding the declassification and disclosure of the executive summary, and findings and conclusions, of the Senate Select Committee on Intelligence (SSCI)’s report on the CIA’s former detention and interrogation Program.  This post is both an update and an elaboration.  It turns out the declassification process regarding the CIA program involves at least three components; it is not limited to the documents that are the subject of the SSCI request.

1.  The SSCI Executive Summary and Findings & Conclusions

On April 18, then-Counsel to the President Kathy Ruemmler wrote to Senator Feinstein that “the President and this Administration are committed to working with you to ensure that the 500-plus page executive summary, findings, and conclusions of the report on the former RDI program undergo a declassification review as expeditiously as possible, consistent with our national security interests.”  Ruemmler’s letter explained that the President “supports making public the Committee’s important review of the historical RDI program, as he believes that public scrutiny  and debate will help to inform the public understanding of the program and to ensure that such a program will not be contemplated by a future administration.”  The letter further informed Senator Feinstein that the CIA is conducting the declassification review in consultation with other agencies, and that the Director of National Intelligence is overseeing the review.

White House Chief of Staff Denis McDonough reportedly has informed Senator Feinstein that the SSCI declassification review will probably be finished by July, and Senator Feinstein is “in discussion with” the DNI to see if the process can be still further expedited.

2.  The “Panetta Report” and the CIA’s response to the original draft SSCI Report

In the meantime, the ACLU and journalist Jason Leopold have filed FOIA suits against the CIA, seeking disclosure of not only the SSCI report itself, but also two other documents:  (i) the CIA’s internal report, the so-called “Panetta Report,” on the CIA program — the subject of the recent contretemps between Senator Feinstein and the CIA; and (ii) the CIA’s memorandum to the SSCI, responding to the initial draft of the SSCI report.  In that litigation, the CIA agreed that it would process these two documents for declassification and “release of any non-exempt information” by May 22, 2014.  On May 15, the CIA filed motions with Judge Boasberg for an extension of time in both cases, explaining that “the treatment of the CIA Response and the so-called Panetta Report will depend in part on the declassification review process currently underway for the executive summary, findings, and conclusions, of the SSCI Report.”  The CIA has told Judge Bates that it “hopes the declassification review and accompanying processing of those documents can be completed this summer,” and asks to be “permitted to submit a status report no later than June 20, 2014, at which time it anticipates it can provide a firmer date to complete the processing of the CIA Response and the so-called Panetta Report.”

3.  Information About Treatment of Military Commission Defendants

Finally, as many Just Security readers know, the CIA’s treatment of detainees has also been the subject of great controversy and concern in pending military commission proceedings at Guantánamo.  The issue arises in the commissions in two principal contexts:

First, the defendants in both the 9/11 and al-Nashiri cases are seeking extensive discovery from the government about the way in which the CIA treated them and other detainees who are possible trial witnesses (or whose statements might be introduced at trial).  On April 14, in the al-Nashiri case, Judge Pohl issued an extraordinary order requiring the prosecution to provide the defense with, among other things:

— A chronology identifying where al-Nashiri was held in detention between the date of his capture to the date he arrived at Guantánamo Bay, Cuba in September 2006;

— A description of how al-Nashiri was transported between the various locations including how he was restrained and how he was clothed;

All records, photographs, videos and summaries the Government of the United States has in its possession which document the condition of al-Nashiri‘s confinement at each location, and his conditions during each movement between the various locations;

— The identities, employment records (including adverse actions), and training records of medical personnel (examining and treating physicians, psychologist, psychiatrists, mental health professionals, dentists, etc.), guard force personnel, and interrogators, whether employees of the United States Government or employees of a contractor hired by the United States Government, who had direct and substantial contact with al-Nashiri at each location and participated in his transport between the various locations;

— Copies of the standard operating procedures, policies, or guidelines on handling, moving, transporting, treating, interrogating, etc., high-value detainees at and between various facilities;

Unredacted copies of requests, with any accompanying justifications and legal reviews of same, to employ “Enhanced Interrogation Techniques” on al-Nashiri and all co-conspirators; and

— Unredacted copies of documents memorializing decisions approving or disapproving the use of such techniques.

The prosecution has asked Judge Pohl to clarify and reconsider the scope of this order, once the government has made its declassification decisions about the CIA program.  And, just to be clear, this order concerns only what must be shared with the defense–not what will be made public.  (Much more on this particular aspect of the proceedings in comprehensive pieces by Carol Rosenberg and Charlie Savage.)  Even so, it is notable that (as far as I know) Judge Pohl’s discovery order goes far beyond what any Article III judge has ever required the government to provide to lawyers for terrorism suspects under the Classified Information Procedures Act.

Second–and more importantly in terms of public understanding of the CIA program–the defendants in both major commissions cases have challenged the legality of protective orders that prohibit the detainees themselves, and their counsel, from disclosing to the public (including at trial) many of the details about their detention and treatment, including, for example, the interrogation techniques that were applied to them, and descriptions of the conditions of their confinement by the CIA.  There is, to say the least, a very serious question about whether the government has the legal authority to silence such persons from disclosing their own accounts of what our government has done to them.  This issue has loomed large over the commissions process:  Many observers, both here in the U.S. and abroad, have come to believe, rightly or wrongly, that the government has elected to use a military justice system rather than Article III courts in order to suppress information about the CIA’s treatment of the “high-value” detainees.  (For what it’s worth, although I have grave doubts about the legality of such “gag orders,” I don’t think they are simply a function of the commissions process, or of detention at Guantánamo:  There is every reason to believe the government would have endeavored to impose the same speech constraints if the defendants had been detained and tried here in the United States, just as it did in the Ghailani case in the Southern District of New York.  (Speaking of which:  The Federal Judicial Center has recently published this very handy collection of protective orders that federal judges have imposed in national security cases over the past 15 years, including the Ghailani Order at page 50.)  But that’s a topic for another day.)

This serious problem of legitimacy did not go unnoticed by government officials.  On January 6, Senators Feinstein and Levin wrote to the President, “urg[ing]” that he “direct all appropriate action to address the ongoing delay in the military commission trial of Khalid Shaykh Mohammad (KSM) and four other detainees.”  “Much of the delay,” the Senators wrote, “is related to the continued classification of information concerning the now defunct CIA Detention and Interrogation Program.  This situation needs to be resolved, or the trial should shifted to an Article III federal criminal court.  The delay is further undermining the reputation of the military commissions with the American public and our friends and allies overseas.  The continued classification of information also interferes with our country’s long-delayed, but important efforts to publicly shine a light on a misguided CIA program that you rightfully ended almost five years ago.”

On February 10, White House Counsel Ruemmler wrote back to the Senators to inform them that “Director Brennan is taking [steps] to declassify certain information relating to the former [Rendition, Detention, and Interrogation] program in support of the current military commission proceedings.”

In the meantime, it was not only the Senators who were urging declassification of the information regarding the CIA’s treatment of the commission defendants.  The Chief Prosecutor, Mark Martins, apparently had done likewise, according to the prosecution’s recent motion in the al-Nashiri case (“The declassification process is underway not only because of the request from the SSCI but because of prior requests by the Chief Prosecutor.”).  In a recent statement, Brigadier General Martins indicated that his efforts to secure declassification began “more than a year ago,” in an effort to fulfill the prosecution’s “ongoing obligation to seek declassification of all relevant evidence ‘to the maximum extent possible consistent with the requirements of national security,’ M.C.R.E. 505(a)(3).”

The recent prosecution motion further discloses that the Administration intends to apply its declassification “guidelines” for the SSCI review “to declassification of materials relevant to military commissions proceedings”; that “[t]he President intends the declassification process to be expeditious”; and that the process “will include consideration of information relating to interrogation techniques as applied to particular detainees.”  According to the Chief Prosecutor, “[a]lthough the specific application of the President’s declassification decision to information at issue in this case remains underway, declassification of enhanced interrogation techniques applied to certain detainees would further enable the defense to develop the full range of exculpatory, mitigation, and extenuation evidence by interviewing the accused and, as appropriate, showing him newly declassified material relating to his interrogation.”

This is a very promising development.  If, in fact, the government declassifies much or all of the information concerning how the government treated the commission defendants and their co-conspirators, that would presumably mean the end–or at least the substantial narrowing–of the controversial gag orders.  Whether that would be enough to substantially restore the legitimacy of the commissions in the eyes of many observers remains to be seen.  But certainly it would be a substantial, and very salutary, step forward. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).