September 24, 2020

Publication of senate torture report won’t end litigation


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Dianne-FeinsteinBy Zoe Tillman, From Legal Times,

The Senate Intelligence Committee on Tuesday released hundreds of pages of previously classified documents providing new details on the scope of the ’s detention and interrogation program.

The full study, at more than 6,700 pages, was not made public. Lawsuits challenging the government’s denials of requests for copies of the study and related records are still pending in Washington federal district court.

The committee released the report’s executive summary, findings and conclusions, and a forward by committee Chairwoman Dianne Feinstein, D-Calif. Feinstein wrote that she had concluded that “CIA detainees were tortured.”

“I also believe that the conditions of confinement and the use of authorized and unauthorized interrogation and conditioning techniques were cruel, inhuman, and degrading. I believe the evidence of this is overwhelming and incontrovertible,” Feinstein wrote.

Responses to the study by other committee members were also published Tuesday. A group of Republican members wrote that the study was based on flawed methodology and created “the false impression that the CIA was actively misleading policy makers and impeding the counterterrorism efforts of other federal government agencies during the Program’s operation.”

Two lawsuits rooted in the committee’s study are still pending in the U.S. District Court for the District of Columbia. Journalist Jason Leopold is suing the and CIA over the denial of his requests for copies of the executive summary and an internal CIA report.

The American Civil Liberties Union is challenging the CIA over the denial of a Freedom of Information Act request for a copy of the full study.

torture-report-CIAThe lawsuits were put on hold after lawyers for the government told the judge that they were involved in efforts to declassify and release the executive summary and the findings and conclusions. U.S. District Judge James Boasberg is presiding over both cases. Boasberg granted the Justice Department’s requests for deadline extensions in both cases until after the Senate committee released the documents.

Leopold’s attorney, Washington solo practitioner Jeffrey Light, said on Tuesday that he planned to move forward with his case. The government will have to explain the justifications for redacting certain information from the documents released by the committee on Tuesday, Light said, and Leopold is also still seeking the CIA’s internal report.

Hina Shamsi, director of the ACLU’s National Security Project, said on Tuesday that the release of the executive summary illustrated the need for the government to disclose the full contents of the Senate report.

“Full transparency requires release of the full torture report, all 6,700-plus pages of it. We’re going to press through the court for that release, but the Obama administration, which has repeatedly stated a commitment to transparency, can also decide to release it without the need for litigation,” Shamsi said.

Feinstein wrote in her foreword that she did not plan on seeking declassification of the full study “at this time.”

The ACLU in a statement called the report “shocking.” Executive Director Anthony Romero urged the Justice Department “to appoint a special prosecutor to hold the architects and perpetrators of the torture program accountable for its design, implementation, and cover-ups.” The statement noted that the ACLU had successfully sued in the past for documents related to the government’s “torture policies.”

IMAGE: Dianne Feinstein. Photo: Diego M. Radzinschi/NLJ

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With Eye on , CIA transferred detainees from Guantánamo

Torture-Report-GITMOBy Mike Sacks, From Legal Times

In 2004, lawyers at the Central Intelligence Agency sized up the first Guantánamo case coming to the U.S. Supreme Court and did not like their prospects.

They were right. In June of that year, the court by a 6-3 vote, would declare in Rasul v. Bush that detainees held at Guantánamo Bay, , had habeas corpus rights.

But rather than wait for the decision to come down and benefit the CIA’s five detainees on the island, the agency by April had spirited the men away out of the court’s reach to an overseas “black site” where they had originally been held.

According to the Senate Intelligence Committee’s study of the CIA’s detention and interrogation program, released on Tuesday, then-CIA General Counsel Scott Muller in February 2004 “asked the Department of Justice, the National Security Council, and the White House counsel for advice” on whether to relocate the detainees.

That same month, “after consultation with the U.S. solicitor general,” the Justice Department gave the green light for the CIA to transfer four of its five detainees. The solicitor general at the time was Ted Olson, now a partner at Gibson, Dunn & Crutcher.

The Senate report says that the CIA nevertheless also moved the fifth detainee, Ibn Shaykh al-Libi, who the DOJ determined “did not need to be transferred because he had originally been detained under military authority and had been declared to the [International Committee of the Red Cross].” (Read more in the Senate report: U.S. Supreme Court Action in the Case of Rasul v. Bush Forces Transfer of CIA Detainees From Guantanamo Bay to Country [REDACTED])

Al-Libi ran a terrorist training camp in Afghanistan before Pakistani officials captured him in November 2001. Before the CIA took custody of al-Libi, he had provided information to the FBI at Bagram Air Force Base about Richard Reid’s failed shoe-bombing plot.

While at Guantánamo, the five men were kept at CIA camps separate from the military’s detention facilities.

That they were held on the island at all came as a surprise to the Senate Intelligence Committee.

“Because the committee was not informed of the CIA detention site at Guantánamo Bay, Cuba, no member of the committee was aware that that the U.S. Supreme Court decision to grant certiorari I the case of Rasul v. Bush … resulted in the transfer of CIA detainees from the CIA detention facility at Guantánamo Bay to other CIA detention facilities,” the Senate report says.

Soon after the detainees were transferred to the black site, the CIA’s relationship with its host country soured.

The Senate report says the CIA brought to the host country’s intelligence officials complaints from al-Libi, among others, claiming “to hear cries of pain from other detainees.” The host country reacted with “bitter dismay,” and saw the CIA, according to the station chief there, as “querulous and unappreciative recipients” of the country’s assistance.

Al-Libi’s particular complaints of “sobbing and yelling,” the report says, reminded him of the torture he claimed to have experienced at the hands of the country that later delivered him into CIA custody. During those sessions, he claimed “Iraq was supporting al-Qaida and providing assistance with chemical and biological weapons”—information then-Secretary of State Colin Powell later cited to the United Nations as reason for the United States’ invasion of Iraq.

“Ibn Shaykh al-Libi recanted the claim after he was rendered to CIA custody on February 2003, claiming that he had been tortured by the [country name redacted] and only told [country name redacted] what he assessed they wanted to hear,” the Senate report says.

The CIA ended its relationship with the country in 2005 and once again transferred the detainees out of the country.

At that time, the Supreme Court had decided Rasul, leading Solicitor General Paul Clement, who had taken over for Olson, to express “concern that if CIA detainees were transferred back to Guantánamo Bay, Cuba, they might be entitled to file a habeas petition and have access to an attorney.”

By 2008, the Supreme Court had handed down four decisions on issues arising out of Guantánamo, each time siding against the George W. Bush administration.

Al-Libi was ultimately repatriated to his home country of Libya, where he died in 2009. The Libyan government said his cause of death was suicide, which human rights groups, as well as al-Qaida leader Ayman al-Zawahiri, have disputed.

IMAGE: Detainees are shown to their new living quarters at Guantanamo Bay, Cuba.

Photo: Department of Defense/Chief Petty Officer John F. Williams, U.S. Navy via Wikipedia

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