CIA Sticks with Its Waterboarding Shiny Object Strategy

A month ago, I argued that the CIA was deploying a waterboarding "shiny object" strategy in its attempt to hide the details of the torture program that they otherwise eliminated by destroying the torture tapes–particularly, that torture started before OLC approved it, and that Abu Zubaydah had cooperated without torture, meaning their entire premise for torture was false.

The CIA was hoping–it appears–that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written (and the White House’s intimate involvement in approving the earlier torture), the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation (which should have been turned over in the first FOIA).


They submitted a filing in the case today that sticks with that same shiny object strategy. Of particular note, there’s a long paragraph that seems to be written for Mary personally. Mary always reminds us that you can’t use classification to hide an example of crime. The CIA responds, as if to Mary, that they couldn’t be hiding a crime because they already revealed all this stuff.

To the extent that plaintiffs argue that the intelligence methods in these documents are illegal and outside the scope of the agency’s authority, and thus are not properly classified, the interrogation and detention methods addressed in the documents were, until January 2009, within the CIA’s authority. See Executive Order 13491, 74 Fed. Reg. 4,893 (Jan. 22, 2009) (terminating CIA terrorist and detention interrogation program). Moreover, Section 1.7(a) of the Executive Order does not bar the Government from classifying information that might contain evidence of illegality, but rather bars the Government from classifying otherwise unclassified information “in order to”— i.e., for the purpose of—concealing violations of law. 68 Fed. Reg. at 15318. Here, the details of the EITs have already been released in the context of the OLC memoranda. Thus, the CIA’s classification of these operational documents was not intended to conceal any illegal activity, as the activity itself has already been disclosed.

They made this argument even after repeating, several times, Leon Panetta’s all-but admission that the techniques in practice exceeded the techniques as authorized. 

As the Court knows, on April 16, 2009, the President of the United States declassified and released in large part Department of Justice, [OLC] memoranda analyzing the legality of specific [EITs]. As the Court also knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are of EITs as applied in actual operations, and are of a qualitatively different
nature that then EIT descriptions in the abstract contained in the OLC memoranda. As discussed below and in my classified declaration, I have determined that information . . . concerning application of the EITs must continued to be classified TOP SECRET, and withheld from disclosure in its entirety under FOIA Exemptions b(1) and b(3).

That of course doesn’t make sense! They can’t logically argue that the techniques have already been exposed, and therefore obviously they’re not claiming they’re still classified to hide evidence of a crime, but then say they have to keep the techniques as practiced hidden, because …

Because, we all know, the techniques as practiced are evidence of a crime.

And then, of course, there’s the problem of timing and the representations made in the OLC memos. If the documents in question show–as they almost certainly do–that CIA was engaging in torture before the OLC memos were written, or if the CIA documents show–as they almost certainly do–that the claims made in the OLC memos were false, then the fact that the OLC memos later went on to approve the torture based on false assumptions means that their claim that this was authorized until January 2009 fall apart temporally (it wasn’t approved yet) and logically (and not given what we know about Abu Zubaydah). 

The brief then goes onto list a bunch of cases in which judges ruled there was no evidence that the agency was trying to hide a crime, and conclude, all pat like, that given the presumption, generally, of good faith, there’s no evidence in this case that CIA had an improper motive for keeping this stuff classified.

For all of these reasons, there is no evidence that the CIA had an improper motive in classifying the operational documents currently at issue before the Court. Accordingly, the CIA properly withheld these operational documents in full under Exemption 1.

As a gentle reminder, this litigation is about whether the CIA should be held in contempt because they destroyed the videos showing these activities!! Destruction that a Special Counsel has spent 18 months, thus far, investigating.

But, nonetheless, the CIA insists that there’s no bit of evidence that the CIA is trying to hide a crime.

This whole argument is falling apart, and that’s even before ACLU picks it apart in their response brief (due in a couple of weeks). 

But at least they responded (ha!) to Mary’s biggest objection.

  1. MadDog says:

    Shorter CIA: “When we commit crimes, we do so with a pure heart.”

    That’s kind of like saying you buy Playboy for the articles.

  2. DeadLast says:

    Do you think there is anything bigger the CIA is trying to cover up, given the most recent news of government surveillance?

  3. emptywheel says:

    Not with this in particular. It’s too narrowly tied to the torture. And we know they’re trying to cover up the torture because they already destroyed evidence here.

  4. [email protected] says:

    The painfully crude and unsubtle attempts to establish a (wholly inadequate) cover for their illegal actions using such weak subterfuge is irritating.

    The support of the current executive branch for the illegal actions commenced during the administration of George W. Bush is infuriating.

    Thank you, Emptywheel, and thank you, Mary. Your writings and analyses are exposing the crimes that have occurred. People like you make me proud to be an American through my knowledge that the truth will become known through diligent analyses of promulgated lies together with incontrovertible truths.

    May the judicial branch save us from these abominations through shining a bright and unrelenting light on the situation to prevent abuses of this ilk from occurring again.

  5. perris says:

    I wish we could get joe and wife to comment

    I am still of the firm belief those approving torture in the cia are cheney’s chronies team b

    • james says:

      Cheney’s Team B is, and always will be, Team B as constituted by George H. W. Bush when, as CIA Director, he formed a group within CIA that would be separate and apart from the career people already there, a group that consisted of people loyal to him and to people like Shackley, Morales, Phillips, and to the perjurer, Richard Helms.

  6. MadDog says:

    And I think this is just a magnificent conclusion:

    …For the foregoing reasons, the Court should grant the CIA’s fifth motion for summary judgment.

    Respectfully submitted,

    (My Bold)

    Yeah, right! That’ll do it. The 5th strike time is the charm.

    I’m sure Judge Hellerstein was merely playing with the CIA the other 4 times he denied the CIA’s motion for summary judgment.

    Yeah, right!

  7. tjbs says:

    One of the copies of the Torture /Murder /Treason tapes are out there.
    Too big a CYA power to completely have been wiped out.
    Has the entity claiming the tapes are MIA ever lied before?
    Can they be trusted about the snuff films or mild manner questioning that would be shown?

  8. stryder says:

    ((Moreover, Section 1.7(a) of the Executive Order does not bar the Government from classifying information that might contain evidence of illegality)), but rather bars the Government from classifying otherwise unclassified information “in order to”— i.e., for the purpose of—concealing violations of law.

    This says that the gov can classify info that contains evidence of illegality,but it can’t do it in order to conceal the illegality.

    If that’s not a fine line I don’t know what is
    Is this a percentage based conclusion like, 90% illegal vs 10% legal or what?

    • alabama says:

      Well, this is a law, and laws have to affirm their status as “law”–i.e. as something breakable, the breaking of which is actionable. Classification is something entirely different: in principle, the American people use classification to keep other people, who are not nice, from stealing their laser-weapon inventions. If, however, it so happens that the folks who get the credit for the invention actually plagiarized the invention from some fellow citizens, then you have a problem: how can you keep the invention classified if you let the action proceed against the plagiarists? Which is where this blog comes into play: it merely reminds us of the law; unless I’m mistaken, it never argues against the principle of classification per se…..

      • stryder says:

        Here the gov is arguing that “they couldn’t be hiding a crime because they already revealed all this stuff”,when they could’ve said there was no crime and all this was classified for nat sec reasons and bring it all back on the olc

  9. skdadl says:

    Gee. A girl goes for lunch and gets back maybe a bit late, and Marcy has written — seven? eight? — new posts? And she actually read stuff to do that.

  10. Hmmm says:

    The logic is uncannily reminiscent of the odious argument that “If you’re doing it to inflict pain then sure, legally speaking it’s torture, but if you’re doing it to extract information, then legally it’s enhanced interrogation.”

  11. Mary says:

    It’s kind of a Quantum filing, isn’t it? Who knew the DOJ had the ability to unfetter time, place and circumstance so effortlessly?

    I’m so glad ACLU specifically framed this issue