A Court Covers Up

A Court Covers Up
The New York Times -  OPINION - May 24, 2012

The Obama administration has added to its string of victories in a tawdry pursuit — making overly expansive claims of secrecy and executive power to deny full disclosure of torture and other abuses of prisoners committed during the George W. Bush administration.  A three-judge panel of the United States Court of Appeals for the Second Circuit in New York has upheld the administration’s claim that cables describing the Central Intelligence Agency’s use of waterboarding and a photograph of a “high value” detainee, Abu Zubaydah, taken during the time he was subjected to repeated waterboarding, are exempt from disclosure under the Freedom of Information Act, or FOIA.  The new decision came as part of a long-running lawsuit brought by the American Civil Liberties Union and other rights groups that are seeking records related to detainee mistreatment. Written by Judge Richard Wesley, the decision is too accepting of the government’s weak claim that revealing material redacted from the cables, along with the photo, would harm national security.  The court found that FOIA’s exemption for “intelligence methods” applied even though the brutal conduct illuminated by these records is considered illegal by President Obama and a host of laws and treaties and is not covered by the C.I.A.’s charter. 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.  The C.I.A. is, generally, entitled to shield legitimate intelligence sources and methods. But the public’s interest in disclosure in this case was especially strong. And, as the A.C.L.U. argued, unlawful waterboarding is not properly an intelligence method within the scope of the FOIA disclosure exemptions. The government argued, and the judges agreed, that the photo of Mr. Zubaydah would reveal the detainee’s condition after torture. That is a compelling argument for its release.  The judges should have given the government’s overwrought claims of national security and secrecy special scrutiny, not extreme deference.