The Glomar Explorer, the CIA ship after which the much-abused legal doctrine is named

Buried in the SSCI’s report is an arresting passage that suggests that the CIA was quietly releasing information about the torture program to journalists while it was contending in court that release of such information to the public would compromise national security.

After the April 15, 2005 National Security Principals Committee meeting, the CIA drafted an extensive document describing the CIA’s Detention and Interrogation Program for an anticipated media campaign.  CIA attorneys, discussing aspects of the campaign involving off-the-record disclosures, cautioned against attributing the information to the CIA itself.  One senior attorney stated that the proposed press briefing was “minimally acceptable, but only if not attributed to a CIA official.”  The CIA attorney continued: “This should be attributed to an ‘official knowledgeable’ about the program (or some similar obfuscation), but should not be attributed to a CIA or intelligence official.”

Referring to CIA efforts to deny Freedom of Information Act (FOIA) requests for previously acknowledged information, the attorney noted that, “[o]ur Glomar fig leaf is getting pretty thin.”  Another CIA attorney noted that the draft “makes the [legal] declaration I just wrote about the secrecy of the interrogation program a work of fiction.”

The reference to the “Glomar fig leaf” related to an argument the CIA was making in ACLU litigation that was pending before Judge Alvin K.  Hellerstein in the Southern District of New York.  In connection with Freedom of Information Act requests we’d filed in October 2003 and June 2004, we were seeking, among other things, three documents we’d learned of from media reports: the Memorandum of Notification (MON) in which President Bush had authorized the CIA to establish black sites overseas, and two memos in which lawyers from the Office of Legal Counsel had concluded that CIA interrogators could lawfully torture prisoners in their custody.  The CIA responded with a “Glomar” response—it argued that the existence or non-existence of the three documents was a properly classified fact. 

I’m not certain, but I think the declaration referenced in the exchange above was this declaration filed by Marilyn A. Dorn, a CIA Information Review Officer.  Dated March 30, 2005, the declaration contends that confirming or denying the existence of the MON and the two legal memos would “cause serious damage to the national security of the United States because confirming the existence or non-existence of records would give our enemies information about specific intelligence methods and activities utilized by the CIA.”

Judge Hellerstein wasn’t entirely persuaded by the declaration—six months after Dorn filed the declaration, he accepted the CIA’s Glomar response with respect to the MON and one of the legal memos but rejected it with respect to the other legal memo.  But, again, the CIA’s position in 2005 was that none of the documents could be acknowledged—let alone publicly disclosed, even in part—without causing “serious damage to the national security.”  Even after it was forced to abandon its Glomar response, the CIA maintained that the MON was so sensitive that even the font of the document was classified.

As the SSCI report makes clear, CIA lawyers didn’t really believe what the agency was saying in its sworn declarations.  They understood that the sworn declarations the agency was filing in federal court were “work[s] of fiction.”  The agency was telling the courts that nothing could be disclosed about its torture program without compromising national security, but at the same time, it was providing quotations and “facts” to the media in order to persuade the public that its activities were lawful, necessary and effective.

If all of this sounds familiar, it’s because the CIA is now doing precisely the same thing with respect to the targeted-killing program. To the courts, the CIA says that any disclosure about the program will gravely compromise national security.  To the media, it supplies a continuous stream of cherry-picked facts meant to cast the program in the most favorable light.

The SSCI report makes clear that some CIA lawyers were uncomfortable with the chasm between the agency’s representations to the court in the torture FOIA litigation and the agency’s actual conduct.  According to the SSCI, some CIA lawyers “urged that CIA leadership … ‘confront the inconsistency’ between CIA court declarations ‘about how critical it is to keep this information secret’ and the CIA ‘planning to reveal darn near the entire” program.’” Presumably those lawyers were worried about the possibility that a court would sanction the agency’s declarants; perhaps they were also worried about compliance with their own professional obligations. One wonders whether the CIA’s lawyers are worried about the same things today.

Image credit, Wikimedia Commons.