The Torture Report, the CIA’s “Work of Fiction,” and a Friday-afternoon Letter From DOJ

In an earlier post, I called attention to the revelation in the Senate torture report that the CIA contemplated disclosing information about the torture program under cover of anonymity at the same time the agency’s lawyers were telling courts that any disclosure about the program would compromise national security.

As I wrote in that earlier post, in the spring of 2005 the CIA was relying on the “Glomar” doctrine to justify its refusal to acknowledge three foundational documents that the ACLU had sought in FOIA litigation—the presidential directive that authorized the CIA to establish black sites overseas, and two legal memos evaluating the lawfulness of the CIA’s interrogation methods.  According to the Senate report, while the CIA was relying on the Glomar doctrine in the ACLU lawsuit, the agency drafted “an extensive document” for “an anticipated media campaign” in which the CIA would provide journalists with information about its interrogation practices on condition that the information not be attributed to the agency.

The proposed media campaign apparently caused consternation among CIA attorneys. One attorney worried that the agency’s Glomar argument had become merely a “fig leaf”—and a “pretty thin” one, at that. Another stated that the media campaign would render the legal declaration” she had just written about the secrecy of the interrogation program “a work of fiction.” The CIA’s legal department “urged that CIA leadership needed to ‘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.’”

In my earlier post, I speculated that the declaration that would be rendered a “work of fiction” by the CIA’s media campaign was a declaration that had been filed by Marilyn A. Dorn, a CIA Information Review Officer, in the same ACLU FOIA litigation in which the CIA was invoking the Glomar doctrine.  But the Justice Department now says this is wrong.  In a letter filed late on Friday, the Justice Department seems to concede that the CIA attorney who described the agency’s Glomar argument as a “fig leaf” was referencing the ACLU FOIA litigation, but it says the CIA attorney who worried that her declaration would be rendered a “work of fiction” was referencing a declaration filed in another lawsuit.

Which case?  The Justice Department doesn’t say.  In fact, given the gravity of the allegations in the Senate report, the Justice Department’s letter says surprisingly little. It doesn’t say whether the CIA’s media campaign was ever carried out. It doesn’t say which information the CIA contemplated releasing, and to whom. And it doesn’t say whether the CIA intends to file something—either in the ACLU lawsuit or another one—addressing the allegations in the Senate report at more length. It’s a letter that raises more questions than it answers, and I don’t think it’s likely to satisfy the courts.

  

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About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).