Terrorism

2nd Circuit Upholds FOIA Exemption for CIA Waterboarding Records


A federal appeals court on Monday upheld a lower court ruling exempting the CIA’s waterboarding records and a photograph of Abu Zubaydah during his interrogation from disclosure under the Freedom of Information Act.

In its ruling (PDF), the New York City-based 2nd U.S. Circuit Court of Appeals said the act shields such classified material from public view even though President Barack Obama has declared the practice of waterboarding illegal, the New York Law Journal reports.

The court also held that the government is entitled to withhold redacted material from two memoranda relating to interrogations written by the Justice Department’s Office of Legal Counsel.

The American Civil Liberties Union, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace have been seeking records related to detainee mistreatment, deaths in custody and the use of alleged torture against terrorism suspects since 2003. These plaintiff organizations have won access to 150,000 pages of documents, including a 2009 order for documents relating to the CIA’s destruction of 92 videotapes of interrogations of detainees

As to the records related to waterboarding and the photograph of Zubaydah, the 2nd circuit rejected the plaintiffs’ contention that the CIA can only withhold records pertaining to activities that fall within the CIA’s charter and their conclusion that waterboarding does not because it has been declared illegal by the president.

On the matter of the memoranda, the appeals court accepted the government’s argument that the redacted material was properly classified because it pertains to an intelligence activity.

Plaintiffs attorney Alexander Abdo said he was disappointed by the ruling.

“This is another court decision actually allowing the CIA to decide for itself what the public is allowed to know about the torture committed in its name,” he said.

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