Federal Judge Orders Justice Department To Turn Over Memos Authorizing Torture Or Justify Withholding Them

Affiliate: ACLU of New York
September 2, 2008 12:00 am

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ACLU Also Obtains Documentation Of Prisoner Abuse And Death In Iraq

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NEW YORK – A federal judge has ordered the Justice Department’s Office of Legal Counsel (OLC) to turn over three memos that authorized the extremely harsh treatment of prisoners in CIA custody or explain by October 3 why these memos can lawfully be withheld. The American Civil Liberties Union called for the immediate release of the May 2005 OLC memos as part of its Freedom of Information Act (FOIA) lawsuit requesting information on the treatment and interrogation of detainees in U.S. custody overseas.

“These memos provide further evidence that senior Justice Department officials gave the CIA a green light to torture prisoners,” said Amrit Singh, staff attorney with the ACLU Immigrants’ Rights Project. “It is essential that these memos immediately be released to the public so that high level officials can be held accountable for authorizing torture as policy in violation of U.S. and international law.”

The New York Times disclosed the existence of two of the three OLC memos in a front-page article on October 4, 2007. The Times reported that the first memo explicitly authorized interrogators to use combinations of harsh interrogation methods including waterboarding, head slapping and exposure to freezing temperatures. The second memo, issued by OLC as Congress prepared to enact legislation prohibiting “cruel, inhuman and degrading treatment,” declared that none of the CIA’s interrogation methods violated that standard.

Following that report, the ACLU filed legal papers charging that the memos should have been – but were not – identified and processed for its FOIA lawsuit. In response to the ACLU’s request for the release of the two memos, the government revealed the existence of a third memo, dated May 30, 2005, and confirmed that the first two memos referenced in the New York Times were dated May 10, 2005. Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York ruled that the memos are responsive to the ACLU’s lawsuit and ordered the government to either produce them or demonstrate why it may lawfully withhold the memos.

In another development in the same case, the ACLU obtained Department of Defense (DOD) documents about the treatment of detainees in Iraq. The documents, from the military’s Criminal Investigation Division, are from two investigations. One report relates to the September 2003 death of Baha Daoud Salim and the abuse of eight other individuals in Basrah, Iraq, at the hands of British forces. The file notes that “coordination with British Forces revealed Mr. Salim’s cause of death to be asphyxiation and his manner of death to be a ‘potential murder.'”

The other file relates to the October 2003 interrogation of a Saudi civilian by a U.S. soldier, during which the interrogator allegedly stepped and ground his foot on a gunshot wound to the civilian’s thigh.

The judge’s order is available online at: www.aclu.org/safefree/torture/36614lgl20080828.html

The DOD documents released today are available online at: www.aclu.org/safefree/torture/36604res20080902.html

To date, more than 100,000 pages of government documents have been released in response to the ACLU’s FOIA lawsuit. They are available online at: www.aclu.org/torturefoia

Many of these documents are also compiled and analyzed in “Administration of Torture,” a recently published book by Singh and Jameel Jaffer, Director of the ACLU National Security Project. More information is available online at: www.aclu.org/administrationoftorture

In addition to Singh and Jaffer, attorneys on the case are Alexa Kolbi-Molinas and Judy Rabinovitz of the national ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons P.C.; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.

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