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10 Jun

Administration Fights Disclosure on Two Fronts

“It is obvious Panetta wants to make no waves at the CIA,”

By: Jason Leopold, 10 June 2009

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Last month, the CIA told a federal court judge it could not abide by a court order and turn over detailed documents about the destruction of 92 interrogation videotapes because it would compromise the integrity of a special prosecutor’s criminal investigation into the matter.

US District Court Judge Alvin Hellerstein responded by demanding a sworn declaration from special counsel John Durham confirming that to be the case. In a subsequent court filing, Lev Dassin, acting US attorney for the Southern District of New York, backtracked and said the CIA would no longer rely on that argument.

Dassin added, however, that a “senior government official” would soon submit a declaration explaining why detailed documents related to the videotaped interrogations should not be turned over to the American Civil Liberties Union (ACLU).

In previous court filings, the CIA disclosed that 12 of the 92 videotaped interrogations depict CIA interrogators subjecting Abu Zubaydah, the first “high-value” detainee, and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, to brutal interrogation methods, including waterboarding.

The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. But it’s unknown whether the interrogation tapes that predate the August 1, 2002 “torture” memo depict “enhanced interrogation” techniques not yet approved by the Justice Department.

Late Monday, the identity of the “senior government official” was revealed.

In a 24-page sworn declaration, CIA Director Leon Panetta said the documents sought by the ACLU in a long-running Freedom of Information Act (FOIA) lawsuit the civil liberties organization filed against the Bush administration must be withheld in the interest of national security.

The documents at issue, according to a description of the materials that accompanied Panetta’s declaration, are a photograph of Zubaydah, who was waterboarded 83 times during the month of August 2002 at a secret CIA “black site” prison; notes drafted after the videotaped interrogations were viewed; emails that raise questions about how the destruction of the tapes should be explained publicly; and other internal communications about the policies and legal guidance related to the videotaped interrogations and their destruction.

Panetta argued that the documents should not be disclosed because it contains top-secret information about the use of specific interrogation techniques, as opposed to abstract information about the legal justification to use those methods that were included in Office of Legal Counsel (OLC) memos released in April.

“The information in these documents would provide future terrorists with a guidebook on how to evade such questioning,” Panetta’s declaration said. “Additionally, disclosure of explicit details of specific interrogations where [enhanced interrogation techniques] were applied would provide al-Qa’ida with propaganda it could use to recruit and raise funds.

The ACLU was harshly critical of Panetta’s argument…………………………………………………….

The Obama administration is applying the same argument – a threat to national security – in explaining its reasons for not turning over to the ACLU 44 photographs that depict US soldiers abusing detainees in Iraq and Afghanistan, despite the fact that a detailed description of the photographs at issue have been publicly available for some time.

In that case, the Obama administration is now going above and beyond what the Bush administration had done in attempting to block the materials.

The administration is appealing the case to the Supreme Court and at the same time looking to Congress to pass legislation to block release of the photographs. Late Monday, Sens. Joe Lieberman and Lindsey Graham threatened to shut down Congress if legislation they sponsored blocking the release of all photographs showing US soldiers abusing prisoners is stripped from the Iraq/Afghanistan war supplemental funding bill.

Both cases mark an about-face on the open-government policies that President Obama proclaimed during his first days in office.

On January 21, he signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of FOIA requests and promised to make the federal government more transparent.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agenci?s should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

It’s becoming increasingly clear that after the disclosure of the “torture memos” in April and the backlash that ensued, that Obama is aiming to avoid further criticism by continuing the Bush administration’s era of secrecy.

The argument Panetta has laid out about the reasons the documents in the interrogation tapes case should continue to be guarded by secrecy does not appear to be credible.

According to veteran CIA analyst Melvin Goodman, Panetta has become entrenched in CIA bureaucracy.

While stopping short of demanding investigations and prosecutions, Panetta certainly made it clear that Bush was acting above the law.

In a column published in the Washington Monthly last summer titled “No Torture, No Exceptions,” Panetta wrote, “there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, ‘to preserve, protect, and defend the Constitution.’ It’s what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force.”

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

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