Freedom of Information Act Requests and the War on Terror

Huaou Yan

It looks like October will be a bad month for those of us hoping for a little more government transparency in the War on Terror. As Billy Corriher of this blog has already noted, in the context of the secret OLC memo justifying the assassination of Anwar al-Aulaqi, that it would be unfair to criticize the OLC without having actually seen its legal reasoning. However, it is also worth nothing that this month has also seen two important developments in how we might get to (or not get to) see what the government is actually doing.

It began with the New York Times’s suit against the Department of Justice for failing to turn over documents pertaining to the government’s “secret” interpretation of the PATRIOT act. According to the complaint, filed on the 5th, the DOJ had denied several New York Times’s Freedom of Information Act requests under 5 USC § 552(b)(1), the FOIA exception pertaining to classified foreign policy and national defense information. However, the New York Times is contending that the DOJ could have redacted any classified information and released the public information as opposed to denying the FOIA request wholesale.

Meanwhile, on the same day the New York Times complaint was being filed, the Federal District Court for the Southern District of New York was releasing a thirty page opinion finding the CIA not liable for civil contempt after failing to honor Freedom of Information requests submitted eight years ago: in 2003, the ACLU submitted FOIA requests for CIA videotapes of its interrogation sessions, including those involving “enhanced interrogation techniques.” On September 14th of 2004, Judge Hellerstein ordered the CIA to produce the materials in question, only to find that the CIA, under increasing investigatory pressure, had destroyed all of the tapes. The ACLU then filed a motion to find the CIA liable for civil contempt. Now, seven years later, the same Judge Hellerstein argues that holding the CIA liable for monetary damages “would serve no beneficial purpose,” and that the CIA’s failure has been remedied by providing written records of the contents of the tape and improving internal agency protocol for the retention of records.

Now, I agree that the government’s job, fighting a stateless enemy, is not an easy one, but when we cannot know what they are doing, because we are barred even from their interpretation of what the law says and because they are not penalized for defying the law to keep us in the dark, well, that’s a problem.

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