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?

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Emptywheel Twitterverse
emptywheel @herrdoktorjay If you can't assume all whose visa expired malicious overstays (you can't bc DHS sucks) you can't track malicious overstays
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emptywheel @herrdoktorjay See, that's my point. DHS now starts process by saying, "Oh, we'll miss our own deadline by 3 months."
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emptywheel @herrdoktorjay Even routine green card renewals for non-risk people STILL assume 3 months longer than DHS's own deadlines.
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emptywheel @herrdoktorjay You're lucky! I know abt 50 people who went thru. I think I know one who didn't either technically fall or come damn close.
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emptywheel @bsdtectr Their passports ARE RFIDed (as are ours).
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emptywheel Don't think solution to visa overstays is bar coding students (Fedex). It would take bureaucracy that works, also for immigrants w/status.
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JimWhiteGNV RT @lrozen: Heard interesting tneory, Sen. Barbara Mikulski (D-Md), who is retiring, may be pre-set to be #34 so no one who has to run burd…
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emptywheel If you fixed immigration system for those (almost every single person I've known) who technically fall out of status you might fix overstays
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emptywheel Yes, it sounds horrible. & one inherent problem w/visa overstays is immigration bureaucracy fails even for immigrants who SHOULD have status
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emptywheel Christie's talking visa overstays (eg, both immigration that wall won't affect and which had role in 9/11). It's actually a real problem.
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emptywheel I loathe Christie but think his Fedex comment has been generally horribly reported. He couldn't be talking ALL undocs bc most AREN'T tracked
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emptywheel @pastordan In fact I can think of no more appropriate way for Walker to end his career than in presiding over ALEC's downfall.
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