By SCOTT SHANE, New York Times, June 9, 2009
WASHINGTON — So far, President Obama has managed to curb Congressional calls for a national commission to investigate Bush administration detention policies. But Mr. Obama cannot control the courts, and lawsuits are turning out to be the force driving disclosures about brutal interrogations.
Mr. Obama’s decision in April to release legal opinions from the Bush administration on interrogation, which were sought in a lawsuit, has opened the door to the disclosure of other documents. That poses a problem for the Central Intelligence Agency as it tries to comply with Mr. Obama’s proclaimed policy of openness while preserving the secrecy that agency officials view as the foundation of intelligence collection.
In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.
The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing. The report by the inspector general, whose secret findings in April 2004 led to a suspension of the C.I.A. interrogation program, will be released by June 19, the Justice Department said in a letter to a federal judge in New York.
Precisely how much the agency will disclose, however, remains to be determined, as the administration is clearly struggling to decide where to draw the line. In both cases, which involve separate Freedom of Information Act lawsuits filed by the American Civil Liberties Union, the documents are likely to be redacted to withhold information the C.I.A. still considers especially delicate.
But in April, when Mr. Obama released the Bush administration’s legal opinions, which included extensive descriptions of the C.I.A.’s interrogation methods, the agency lost a major rationale for withholding the other documents, and it agreed to review them again for possible release.
Mr. Obama began his presidency with a pledge of “a new era of openness” and overruled strong objections from the C.I.A. in disclosing the interrogation memorandums.
He has proved wary, however, of bogging down his broader agenda in divisive disputes about torture, and he has successfully pressed most Congressional Democrats to oppose calls for a national commission on the Bush administration’s interrogation and surveillance programs. The Senate Intelligence Committee is reviewing the interrogation program, but behind closed doors.
Last month, Mr. Obama reversed plans to release hundreds of photographs showing abuse of prisoners, saying the pictures would add little to public knowledge and could endanger American troops. The C.I.A. has also declined to release to former Vice President Dick Cheney two memorandums that Mr. Cheney asserts show the effectiveness of harsh interrogations.
Leon E. Panetta, the C.I.A. director, sought to set limits this week in a court declaration opposing disclosure to the A.C.L.U. of documents related to 92 interrogation videotapes, including some showing waterboarding, that the C.I.A. destroyed in 2005.
Mr. Panetta said in the court filing, reported Monday night by The Washington Post, that agency officials had decided that no documents of a sample of 65 could be released without causing “exceptionally grave damage to the national security” and providing “ready-made ammunition for Al Qaeda propaganda.”
Jameel Jaffer, a lawyer for the A.C.L.U., said his organization accepted that there should be limits to disclosures and was not seeking, for example, intelligence revealed during harsh interrogations or the identities of rank-and-file C.I.A. officers.
“What we want disclosed is really quite narrow — information on how the techniques were authorized and how they were used,” Mr. Jaffer said.
Mr. Panetta’s logic, Mr. Jaffer said, would defeat the purpose of the Freedom of Information Act in exposing government misconduct, with the worst abuses being kept secret because they could fuel the most effective propaganda. “Americans have a right to know the full story of the Bush administration torture program,” he said.
The releases expected this month will not begin to exhaust the anticipated disclosures on interrogation. The Justice Department’s long-awaited ethics report on the lawyers who wrote the interrogation memorandums is set for release this summer. A criminal investigation of the destruction of interrogation videotapes by John H. Durham, a federal prosecutor, is still under way.
The A.C.L.U., one of a dozen advocacy groups fighting in court for details of the Bush administration security programs, plans to file another lawsuit on Thursday, this one seeking additional White House and Justice Department documents on interrogation. The same day, the National Religious Campaign Against Torture, a coalition of clergy members, will meet with Obama administration officials to argue for a national commission, said a spokesman, Steve Fox.
The Democratic chairmen of the Senate and House judiciary committees, Senator Patrick J. Leahy of Vermont and Representative John Conyers of Michigan, continue to press for such a commission, though their efforts so far show no sign of winning majority support.
A spokesman for Mr. Leahy, David Carle, said the senator saw the commission proposal as “an uphill battle,” but he added, “He has kept the option alive.”