Obama administration’s new moves to block release of torture documents

By Tom Eley
12 June 2009

The Obama administration’s efforts in court to suppress the release of evidence linking top Bush administration officials to the torture of “terror” detainees intensified this week.

On Thursday, the American Civil Liberties Union (ACLU) launched a broad lawsuit it believes will establish a further link between the Bush White House and the torture of detainees. The suit, filed in US District Court in Manhattan, demands the release of all documentation relating to the “harsh interrogation” techniques used on prisoners at US military and Central Intelligence Agency (CIA) prisons. It names the CIA, Department of Defense, Department of State, and the Department of Justice as defendants. Obama administration officials have not publicly commented on the lawsuit.

Jameel Jaffer, director of the ACLU’s National Security Project, said the new court action was a response to recent revelations linking the Bush White House to torture. Until recently, the ACLU “did not consider the possibility that lawyers in the Justice Department and people at the highest levels of the Bush administration were engaged in developing and implementing a far-reaching and brutal torture program,” Jaffer said. “That is something that was a shock to us, just like it was a shock to most other people.”

On Monday, CIA Director Leon Panetta made a court filing in response to a separate ACLU lawsuit, in which he expressed the Obama administration’s opposition to the release of documents related to 92 interrogation videotapes the agency ordered destroyed in 2005. The tapes depicted the use of the CIA’s “harsh interrogation” methods, including waterboarding.

Panetta is requesting that about 580 documents remain classified. Among these are cables from field agents to top CIA and perhaps White House officials describing interrogation sessions, e-mail communications discussing the legal implications and potential public reaction to the destruction of torture videotapes, as well as notes written after agents viewed the films.

The destroyed video tapes included footage of the torture of Abd al-Rahim al-Nashiri, accused of organizing the attack on the USS Cole in 2000, and Abu Zubaydah, who the CIA claims was a senior Al Qaeda operative when he was abducted from Pakistan in 2002. Zubaydah was waterboarded 83 times in one month at a secret “black site” prison in 2002.

The tapes’ destruction is the subject of a separate criminal investigation by federal prosecutor John H. Durham. The CIA destroyed the tapes in violation of a court decision ordering it to release or identify all records related to its interrogation practices.

Last month the CIA said it could not comply with a court order demanding the release of the documents because to do so would compromise Durham’s federal investigation. When US District Court Judge Alvin Hellerstein then demanded that the Obama administration provide an affidavit from Durham stating that to be the case, the CIA dropped the argument, and a US government attorney said that a “senior government official”—Panetta— would soon provide the court a declaration explaining why the CIA could not release the documents.

In his 24-page court filing, Panetta wrote that to make public any document related to the tapes and their destruction would cause “exceptionally grave damage to the national security” by giving “ready-made ammunition for Al Qaeda propaganda.” In effect, Panetta is admitting that new revelations about the CIA’s torture program would endanger American imperialism’s efforts in the Middle East and Central Asia by further exposing before the world, and the American public, the criminal nature of that project.

Panetta also borrowed an argument from former Vice President Dick Cheney, claiming that the release of the documents would allow “terrorists” to prepare themselves for US interrogation techniques. “The information in these documents would provide future terrorists with a guidebook on how to evade such questioning,” the CIA chief said.

Finally, Panetta claimed that exemptions to the Freedom of Information Act related to national security allow the CIA to suppress the extensive communications between agents in the field and CIA headquarters, regarding the torture of Zubaydah. The agency had previously provided an index of the communications, but their content remains sealed.

Panetta’s move to suppress the CIA torture documents is the latest in a series of interventions by the Obama administration aimed at continuing, or defending, the illegal practices of the Bush administration in “the war on terror.”

* On May 15, Obama announced his decision to resume military commission trials for 13 Guantánamo Bay inmates. The trials will start after Congress authorizes minor changes to the Military Commissions Act of 2006, which gave legal sanction to the tribunal system that former President George W. Bush first put in place by executive fiat at the end of 2001.

* On May 13, Obama announced that he would attempt to maintain as classified dozens of photographs depicting the torture and abuse of prisoners at US facilities in Iraq, Afghanistan and Guantánamo. Obama had earlier indicated his consent for the photos’ release, ordered by the US Court of Appeals. In reversing himself, Obama explained that top generals had objected to the photos’ publication, claiming that it would jeopardize ongoing US military operations.

Obama has since appealed the Court of Appeals decision to the Supreme Court, and has also asked Congress to pass legislation that would legalize the photos’ suppression. Senator Joseph Lieberman of Connecticut and Republican Senator Lindsey Graham of South Carolina have attached legislation to the supplemental war funding bills for Iraq and Afghanistan that would block the release of photos showing US personnel torturing prisoners.

* In April, Obama complied with a court order and released a series of Bush Justice Department memos that attempted to establish a pseudo-legal rationale for torture. After elements close to the military-intelligence apparatus, including former Vice President Cheney, attacked the memos’ release, Obama promised that there would be no investigation or prosecution of Bush administration officials or CIA agents who ordered or carried out torture. Obama has even moved to block Congressional efforts to organize a “truth commission” whitewash.

* Since his inauguration, Obama officials have intervened in a number of court cases to block judicial scrutiny of Bush administration practices. In early February, the Obama administration invoked the “state secrets” argument in an attempt to quash a lawsuit by five victims of extraordinary rendition against an airline subsidiary of Boeing, which had profited from the men’s abduction.

Less than a week later, the Justice Department again invoked state secrets in San Francisco federal court when it filed papers to block an order by United States District Judge Vaughn R. Walker reinstating the claim of the Al-Haramain Islamic Foundation that it was the target of government wiretapping.

In an effort to stop the Supreme Court from ruling on the Bush administration’s practice of imprisoning US citizens and legal residents as “enemy combatants” without charge or trial, in late February the Obama Justice Department brought separate criminal charges against the last individual held in the US on this basis, Salehn Kahla al-Marri.