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Judge should decide which of the CIA's objections are valid

Posted: Sunday, June 14, 2009

Despite its repudiation of "enhanced interrogation techniques," the Obama administration continues to stifle public scrutiny of how the Bush Justice Department's strained legal rationale for torture was translated into the mistreatment of suspected terrorists. The latest attempt to deflect disclosure was a statement by CIA Director Leon E. Panetta on Monday that not a single paragraph of 65 documents describing the agency's interrogations could safely be made public. Most of the documents describe the interrogation of Abu Zubaydah, who was waterboarded at least 83 times.

The federal judge to whom Panetta submitted his declaration shouldn't take it at face value. As with the photographs of prisoner abuse that President Obama wrongly declined to make public, the documents sought by the American Civil Liberties Union shouldn't be withheld to spare the United States additional embarrassment. Nor is continued secrecy justified, as Panetta maintains, by the possibility that details about abandoned techniques would help al-Qaida prepare for future interrogations. Even less convincing is Panetta's claim that national security would be endangered by the identification of countries that allowed the CIA to interrogate suspects on their soil.

To be fair, these are only some of Panetta's justifications for exempting so-called operational documents from the disclosure requirements of the Freedom of Information Act. He also told U.S. District Judge Alvin K. Hellerstein that their release would expose the identities of CIA employees who took part in interrogations and reveal what the CIA did and didn't know about terrorist plots at particular points in time.

These arguments have a better claim to the exception in the FOIA for matters "specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy." But the documents may contain information that doesn't meet that test. For example, they might establish whether interrogators circumvented even the inadequate constraints imposed by the Bush administration. They also could shed light on a matter under criminal investigation: the destruction of 92 videotapes of CIA interrogations.

Even the harshest critics of the Bush-era interrogation program recognize that the government can't divulge to the public the identities of covert operatives or important sources and methods. But with all due respect to Panetta, he shouldn't have the final say on that question. The solution seems obvious: Judge Hellerstein should examine the contested documents - not just summaries - and decide for himself which of the CIA's objections are valid.



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