Either Torture Is Ongoing Or the Administration Is Hiding Something Else

I don’t mean to be ungrateful that the NYT wrote an editorial about the 2nd Circuit’s decision to help the CIA hide its torture documents from FOIA. I’m not! I’m glad they’re noting how the courts are collaborating in hiding our government’s crimes from us.

But I’m going to be a bit pedantic about it.

As almost every outlet has when covering the 2nd Circuit decision, the editorial focuses primarily on the picture of Abu Zubaydah after he was tortured. That makes sense. A picture is so concrete, so easy to understand.

It does, however, also mention the court’s ruling hiding what the government has all-but confirmed is mention of the Gloves Come Off Memorandum of Notification. But it interprets those references to “concern the origins” of the torture program (I’m also grateful that NYT used the word “torture,” btw).

The court also said the C.I.A. was justified in withholding two passages in Justice Department memos that appear to concern the origins of the Bush torture program.

Now, I don’t blame the NYT for not saying this is the Gloves Come Off MON–while both Judge Alvin Hellerstein and DOJ have all-but confirmed that, that’s not adequate proof for the NYT. But these passages either represent more than “the origins of the torture program,” or we’re still in the torture business.

That’s because in his opinion, Judge Richard Wesley makes it clear that the references are to an ongoing activity.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

In the middle of an opinion discussing torture, Wesley said some activity relating to torture  is still active.

Now, I’m not saying I think torture (well, waterboarding, anyway) is still ongoing. As I have noted, all the evidence suggests the government is hiding this very short reference to the Gloves Come Off MON because releasing it might amount to admission of all the other covert programs either explicitly or implicitly included in it–including the drone program, but also including things like buying the services of the Egyptian intelligence services.

Furthermore, we reject the district court’s suggestion that certain portions of the redacted information are so general in relation to previously disclosed activities of the CIA that their disclosure would not compromise national security. It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

But until the Administration explains all this, what we’ve got is a Circuit Court judge saying that he can’t release a half sentence phrase–one appearing in the title of Torture Guidelines–because that half sentence phrase relates to an activity that is still ongoing.

Which is it folks? Torture? Or simply a whole bunch of equally terrible things?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. orionATL says:

    well,now, one activity that is ongoing is the cover-up of torture :)

    – cheney-bush-rice-rumsfeld-tenet-rodriguez torture.

  2. orionATL says:

    somewhere there has to be a u.s. gov’t run program for spying/targeting for drone assassinations.

  3. orionATL says:

    the three legs of the stool

    – rendition to torture

    – assassination/murder

    – third-party imprisonment of terrorism suspects/sympathizers/facilitators

  4. jo6pac says:

    @orionATL: No kidding but 0 and doj never looks back unless you’re a whistle blower then pull out all the stops full speed ahead.

    I had a thought on why P. Fitzgerald might have retired may be the next whistle blower case was being given to him. I’m buying more foil for my hat in a day or 2 but with the way this wh operates it is a way to get rid of a non team player and maybe the last Honest Person.

  5. wavpeac says:

    There has been admitted torture with no prosecution. There is cover up for torture. There is torture.

    No surprises here really.

  6. Jeff Kaye says:

    Good questions all. I kind of made the similar point in a tweet a couple of days ago:

    What “highly classified, active intelligence activity” is U.S. govt still running in relation to Abu Zubaydah? http://t.co/mpEZU50U


    Also noted something I think is important:

    Hey 2nd Circuit, withholding information b/c CIA cites protected ‘intelligence activity’ DOES effectively exempt CIA from FOIA’s mandate


    Had to make this point b/c 2nd Circuit of course protests the opposite. Methinks they do protest too much. Face it, folks, we live in a land with a secret police that cannot really be controlled.

  7. GKJames says:

    Which yet again brings us to the dead end: the Executive, the courts, and Congress (the people) are in sync in accepting this state of affairs. Hard to argue that this isn’t a reflection of democracy at work. Some of us may detect the stench associated with the perversion of ideals, but how to swim – effectively – against the flood of sludge?

  8. mzchief says:

    As Nicole Ozer, ACLU of Northern California, Technology and Civil Liberties Policy Director says: “.@ATT why am I paying you to work for the police instead of my #privacy?

    Well if Americans were more aware of telecomm technology and history, the truth is that they have never not been spied upon. It wasn’t until the 1970s that some folks spoke out about it hence the all-still-too-true jokes by Lily Tomlin. So, here for your consideration is my request that folks do what they can to help boot up the NY State-based 501c3 Calyx Institute ( https://www.calyxinstitute.org; donate here or here). With a crack specialty legal firm, technology architecture experts and a telecomm services provider all rolled into one but intentionally not part of Wall Street, we have a fighting chance for spy-free space and I think this is the time to go for it.

  9. just imagine says:

    What if? Features this administration has added imply a continuing cover-up of some citizen “detention” that would be morally repugnant if known, also perhaps damning in a bipartisan way. In an uncontrolled, secret “war” it could be almost anything. So what if it’s something like cyber-controlled house arrest, run from offshore? or video peeping using miniaturized robotic devices? Or messing-about with people using nonlethal weaponry, or hiring of foreign agents to hassle/confuse? Or what feingold derided: inventing pretexts about people who have been added to some crazy list, shadowy accusations pulled together on little evidence? Shudder to think. Time will probably tell.

  10. Nell says:

    @GKJames: Support any and all efforts at accountability for torture, including (especially now, because they are the _only_ vehicle since U.S. courts have closed their doors) international legal proceedings.

    It usually takes 20 to 30 or more years before there’s a glimmer of justice, but even that requires that there be dogged, continuous pressure. It’ll make you especially unfashionable in this election year, but speak up about the complete cover-up by this administration, the deepening secrecy, the ongoing abuses.

  11. Jeff Kaye says:

    By the way, regardless of the circumstances surrounding this posting, torture by the U.S. is certainly ongoing. It occurs by way of Appendix M and certain other Army Field Manual techniques, and it occurs via supervision of third-party torture, whether through rendition, or arrest of third-party nationals in their own countries, e.g., Yemen, Jordan, etc.

    What we are really looking at is the continuation of a particular special access program or collection of related SAPs that go back to late 2001. Are they still active? I’d say yes, and oddly enough, Judge Wesley appears to have conceded that in the very quote you point out.

    We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

  12. orionATL says:

    here’s the general point i think important:

    in terms of the “structure” of a “defensive” terrorism program, i consider it a very good bet that our nstional security bureacracy has merely refined and expanded (to the extent politically and legally possible) whatever it was we were doing early on (2001-2004) here in america at gitmo, or in third-party nations like poland, egypt, libya, et al.

    the point is there is a “persistence of vision” by bureaucracies that leads them to continuously repeat and refine early activities. bureaucracies are not the home of imaginative thinking.

  13. tjallen says:

    I suspect there is an ongoing secret prison ship program. Probably also an interrogation program that is “doing it right, by the book.” What else has been undercover-in-full-sight? We know there is the ongoing payment, arming and training of pro-US, anti-Al-Q forces, in many different countries. Probably there are huge payments for ongoing programs for pro-US media propaganda, too. Sometimes, what is officially hidden is something we already know all about.

  14. tjallen says:

    @tjallen: I’ve always worried that Law of the Sea being weak as it is, that the US (and others) could “create reality” and evade legal responsibility by acting upon the high seas. It’s just one of those little paranoia things, and sure, I’ll go take my pill now.

  15. DWBartoo says:

    Torture is ongoing “Homeland” policy?

    Who could have imagined?

    Frankly, how anyone, after it was made clear that “policy differences” would not be “criminalized”, could have imagined anything other than that torture is now a “respected” and utilized “tool” in the “toolbox” of the elite is ludicrous and funny in the saddest possible way.

    Without a serious legal accounting of what Bush-Cheney had done, the ONLY conclusion rationally and reasonably “available” to thoughtful observers is, and was, simply that Obama and Holder-Sunstein clearly intended to pick up where their predecessors had left off.

    BTW, EW, your televised discussion of John Brennan was much appreciated and I took the liberty of recommending it to several folks who were very much impressed. Appalled at Brennan’s “perspective”, but very attentive to what you had to say.


Comments are closed.