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Seth F Kreimer Rays of Sunlight in a Shadow War Re Foia Abusees of Anti Terrorism and Strategy of Transparency 2007

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LCB_11_4_ART11_KREIMER.DOC

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RAYS OF SUNLIGHT IN A SHADOW “WAR”: FOIA, THE ABUSES
OF ANTI-TERRORISM, AND THE STRATEGY OF TRANSPARENCY
by
Seth F. Kreimer∗
In the wake of the September 11 attacks, the “Global War on Terror” has
marginalized the rule of law. From the dragnet detentions in the aftermath of
the initial attacks, to novel and secretive surveillance authority under the
Patriot Act, to the incarceration and torture of “enemy combatants,” the
administration’s “war” has sought to establish zones of maneuver free of
both legal constraint and of political oversight. In the first half decade of
these efforts, the tripartite constitutional structure which is said to guard
against executive usurpation remained largely quiescent. Opponents both
inside and outside of the government turned instead to subconstitutional
structures to expose this self-avowed “dark side,” and to lay the foundation
for a return to the rule of law. This Article examines four case studies of this
strategy of transparency. At the center of each account lies the Freedom of
Information Act (FOIA). The studies highlight, however, the crucial roles
played by a broader complex of structures of transparency that have come to
constitute the framework of national governance during the last generation,
the importance of the integrity of the civil servants administering those
structures, and the fulcrum of sustained advocacy.
I.
II.
III.

INTRODUCTION .............................................................................. 1142
TRANSPARENCY, TEXT, AND CONSTITUTIONAL PRACTICE 1144
STRUCTURES OF TRANSPARENCY AND A “GLOBAL WAR
ON TERROR”..................................................................................... 1147
A. A Low Speed Bump: The Case of the Post-September 11 Dragnet ...... 1148
B. Transparency Mechanisms as Audits: Guantanamo Tribunals and
the Patriot Act ................................................................................ 1164
1. FOIA Alone: Sunlight on the Guantanamo Tribunals............... 1164
2. The Campaign to Illuminate the Patriot Act.............................. 1168
C. Transparency and Torture: Democracy and the Problem of
“Unknown Unknowns” .................................................................. 1185
1. The Policy that Dares not Speak its Name.................................. 1187
2. Seeping Transparency: “Information Wants to Be Free”............. 1192
a. Leaks and Hints................................................................ 1192
∗

Kenneth W. Gemmill Professor of Law, University of Pennsylvania Law School.
This Article has benefited from the comments of Cary Coglianese, Serena Mayeri,
and Kim Scheppele, as well as the fine research assistance of Nishchay Maskay,
Alexandra Fellowes, and Eugene Novikov. Each is entitled to my deep thanks, but
none bears responsibility for remaining errors or misunderstandings.

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b. Internal Scrutiny and Abu Ghraib ..................................... 1197
3. Transparency Deployed: The Slow March Toward Known
Knowns ................................................................................... 1200
4. Sunlight and Disinfection?....................................................... 1209
THE STRATEGY OF TRANSPARENCY IN DARK TIMES.............. 1215
I.

INTRODUCTION

A story of which I have always been fond concerns a friend of W.C.
Fields, the actor Thomas Mitchell, who approached the elderly comedian
as Fields lay mortally ill. Observing Fields, a famous religious skeptic,
deeply engrossed in the study of a Bible, the friend expressed some
surprise: “You’ve never been interested in the Bible, Fields, what are you
doing with it now?” Fields looked up, paused, and responded in his
characteristic voice, “looking for loopholes m’boy, looking for
loopholes.”
The rule of law in the United States has just been through a neardeath experience. The current administration has sought to flout
constitutional principle by establishing law-free zones and constitutional
black holes. It has engaged in duplicitous parsing of its legal obligations,
and has invoked extralegal executive authority. In the process, it has
undertaken what Vice President Cheney described from the outset as an
effort to “work [through] . . . the dark side” and “spend time in the
1
shadows” in pursuing what it characterizes as a “Global War on Terror.”
In the face of these initiatives, for the better part of six years, the
tripartite constitutional structure which is said to guard against
usurpation has remained largely quiescent. Congress was initially
paralyzed by the aftershocks of the attacks of September 11, and, after
the President’s party gained control of the Senate in 2002, by party
loyalty. The courts awaited justiciable controversies, delayed by a
combination of secrecy and sequestration of potential plaintiffs. When
confronted with legal challenges, judges often proved unwilling to
exercise the power of judicial review.
Yet the Republic stands, and as we meet today our nation has begun
slow progress toward effective limits to the abuses of the Global War on
Terror. What follows is an effort to read the last six years with the eyes of
W.C. Fields. Faced with a landscape apparently inhospitable to hopes for
the rule of law, I will be “looking for loopholes.” I seek to identify

1
Interview by Tim Russert with Dick Cheney, Vice President, on Meet The Press
(Sept. 16, 2001), available at http://www.whitehouse.gov/vicepresident/
news-speeches/speeches/vp20010916.html. Cheney continued by saying that “[a] lot
of what needs to be done here will have to be done quietly, without any discussion,
using sources and methods that are available to our intelligence agencies, if we’re
going to be successful. . . . [I]t’s going to be vital for us to use any means at our
disposal . . . .” Id.

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unacknowledged resources that set the stage for a return to
constitutional values.
I focus on four case studies in which challengers have sought to
shine light on a shadow “war,” turning from litigation that directly
challenged an overreaching Executive to adopt a strategy of
transparency. In each, critics have used legal tools to generate
information regarding abuses; that information in turn has laid the
groundwork for legal and political initiatives to return to the rule of law.
At the center of each account lies the Freedom of Information Act
(FOIA). The studies highlight, however, the crucial roles played by a
broader complex of structures of transparency that have come to
constitute the framework of national governance during the last
generation, the importance of the integrity of the civil servants
administering those structures, and the fulcrum of sustained advocacy.
And in each of the case studies, the determined efforts of the
administration to keep details of abuses from the public testify in a
backhanded fashion to the existence of an ongoing constituency for the
rule of law.
Part II begins with a brief account of the importance of
transparency, the paucity of guarantees for it in the constitutional text,
and the development of frameworks of transparency as part of our
constitutional practice in the last generation. Part III.A traces the efforts
to uncover the dimensions of the initial domestic dragnet for terrorist
suspects in the aftermath of the trauma of September 11. It sets forth the
interaction among state and federal Freedom of Information Act
frameworks and litigation surrounding the closure of deportation
proceedings. It concludes with the subsequent investigation and report
by the Department of Justice (DOJ) Office of Inspector General, which
retrospectively revealed many of the abuses of the dragnet.
Part III.B examines two efforts to use transparency mechanisms to
audit ongoing antiterrorist initiatives. Part III.B.1 reviews the successful
use of the Freedom of Information Act to pry loose transcripts of the
Combatant Status Review Tribunals in Guantanamo along with
information regarding individuals incarcerated there. Part III.B.2 sets
forth the more complex campaign to bring to light the ways in which the
novel surveillance mechanisms authorized by the Patriot Act have been
used domestically in the “War on Terror.” That campaign combined the
efforts of a coalition deploying political advocacy, FOIA requests, and
substantive constitutional litigation. It ultimately generated both
investigations by the Department of Justice Inspector General and the
imposition of further disclosure and auditing requirements as a
condition for the renewal of the Patriot Act.
Part III.C details the efforts to expose the policy of coercive
interrogation adopted by the current administration in the “War on
Terror.” Resistance to that policy within the government generated both
internal records of opposition and initial leaks regarding abuses. FOIA
requests and litigation, enabled both by the disclosure of the existence of

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documents sought and by a public controversy that could ground a legal
claim for expedited processing, in turn allowed external critics to obtain
documents that authenticated the accusations. Those disclosures
impeached the policy and sparked investigations by internal watchdogs,
as well as judicial and congressional intervention. Throughout the
process, the integrity of civil servants has proven an essential condition of
effectiveness for the strategy of transparency.
Part IV concludes with reflections on the strategy of transparency.
II. TRANSPARENCY, TEXT, AND CONSTITUTIONAL PRACTICE

It is common currency that transparency is a tonic to democratic
legitimacy and to lawful government. On one hand, James Madison
observed that “[a] popular Government, without popular information, or
the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or,
perhaps both. Knowledge will forever govern ignorance: And a people
who mean to be their own Governors, must arm themselves with the
2
power which knowledge gives.” On the other hand, Louis Brandeis
3
famously proclaimed sunlight to be “the best of disinfectants.”
Yet the text of the American Constitution provides few explicit
guarantees of transparency. Each house of Congress is constitutionally
obligated to keep and publish a journal of its proceedings “excepting
2
Letter from James Madison to W.T. Barry (Aug. 4, 1822), reprinted in 1 THE
FOUNDERS’ CONSTITUTION 690 (Philip B. Kurland & Ralph Lerner eds., 1987), available
at http://press-pubs.uchicago.edu/founders/documents/v1ch18s35.html. Cf. N.Y.
Times Co. v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring) (“In the
absence of the governmental checks and balances present in other areas of our
national life, the only effective restraint upon executive policy and power in the areas
of national defense and international affairs may lie in an enlightened citizenry—in
an informed and critical public opinion which alone can here protect the values of
democratic government.”).
3
LOUIS BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 62 (Nat’l
Home Library Found. 1933); see, e.g., JEREMY BENTHAM, POLITICAL TACTICS 29 (Michael
James et al. eds., Oxford Univ. Press 1999) (“The greater the number of temptations
to which the exercise of political power is exposed, the more necessary is it to give to
those who possess it, the most powerful reasons for resisting them. But there is no
reason more constant and more universal than the superintendance of the public.”);
JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 162–64 (Currin
V. Shields ed., 1958) (“Publicity is inappreciable, even when it does no more than
prevent that which can by no possibility be plausibly defended. . . . [C]ases exist . . . in
which almost the only restraint upon a majority of knaves consists in their involuntary
respect for the opinion of an honest minority.”); LORD ACTON AND HIS CIRCLE 166
(Abbot Gasquet ed., 1968) (“Every thing secret degenerates, even the administration
of justice; nothing is safe that does not show how it can bear discussion and
publicity.”); Immanuel Kant, Eternal Peace, reprinted in CARL JOACHIM FRIEDRICH,
INEVITABLE PEACE 241, 277 (1948) (“[I]t is possible to call the following statement the
transcendental formula of public law: ‘All actions which relate to the right of other men
are contrary to right and law, the maxim of which does not permit publicity.’”).
When Kant agrees with Mill, Acton and Bentham on a proposition, one might
think that proposition rests firmly at the root of modern liberal democracy.

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4

such Parts as may in their Judgment require Secrecy.” This provision
precluded a return to the blanket secrecy of parliamentary debate of
5
seventeenth century England. But in the founding decade, the
constitutional framework proved consistent with largely open
deliberations by the House, a presumption of secrecy for the
deliberations of the Senate, and a variety of confidentiality privileges for
6
the Executive branch.
The President is required to “from time to time give to the Congress
7
Information of the State of the Union”. He must provide information
sufficient to persuade the Senate to consent to appointments and
treaties, and if he seeks legislation, he must convince both houses of
8
Congress to adopt it. These, too, are mandates consistent with a wide
range of transparency. The Framers contemplated that in some
dimensions, the Executive branch would partake of the virtues of
9
“decision, activity, secrecy, and dispatch.” Yet they envisioned no broad
return to arcana imperii; the Executive’s actions were to be “narrowly
10
watched and readily suspected” by an informed public opinion. For the
popular branches of government, the constitutional text leaves the
balance between secrecy and public accountability to rest largely in the
interplay of political forces. Subsequent amendments have not altered
the constitutional text in this regard.
Justice Stewart observed that “[t]he Constitution itself is neither a
11
Freedom of Information Act nor an Official Secrets Act.” But what the
4

U.S. CONST. art. I, § 5.
See generally DAVID ZARET, ORIGINS OF DEMOCRATIC CULTURE 44–55 (2000).
6
DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS 47–55
(1981) (discussing provisions for open deliberations in the House); id. at 55–65
(detailing closure of Senate deliberations and the presumptive secrecy of “executive”
journals); id. at 84–88 (describing the Senate’s 1794 “open doors” resolution); see
generally id. at 10 (describing political competition as an “emergent alternative to a
stable system of legal controls on secrecy” in the founding decades).
7
U.S. CONST. art. II, § 3.
8
U.S. CONST. art. II, § 2.
9
THE FEDERALIST NO. 70, at 424 (Alexander Hamilton) (Clinton Rossiter ed.,
1961) (describing “[d]ecision, activity, secrecy, and dispatch” as virtues of a single
Executive); see THE FEDERALIST NO. 64, at 392–93 (John Jay) (referring to the necessity
of secrecy and dispatch in foreign affairs).
10
Federalist No. 70 argues that a single Executive is better subject to “the
restraints of public opinion,” since “multiplication of the executive adds to the
difficulty of detection,” including the “opportunity of discovering [misconduct] with
facility and clearness.” One person “will be more narrowly watched and more readily
suspected.” THE FEDERALIST NO.70 supra note 9, at 427-30. And No. 84 contemplates
that “[t]he executive and legislative bodies of each State will be so many sentinels
over the persons employed in every department of the national administration,”
whose “regular and effectual system of intelligence” will allow them to “communicate
the same knowledge to the people.” THE FEDERALIST NO. 84, at 516 (Alexander
Hamilton).
11
Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975) (“The public’s
interest in knowing about its government is protected by the guarantee of a Free
5

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“Constitutional” text omits, the last generation has embedded as a part of
12
modern “small c” constitutional practice. For forty years, America’s
governing structure has included a Freedom of Information Act. In the
aftermath of Watergate, Congress implanted in law a framework of subconstitutional structures protecting transparency. It strengthened the
Freedom of Information Act, provided protections for whistleblowers,
reporting obligations, and a network of Inspectors General empowered
13
to investigate and report to Congress. The Executive branch put in
14
place another set of internal watchdogs. And in the last generation, the
Court recognized, at least implicitly, the constitutional importance of

Press, but the protection is indirect. . . . The Constitution, in other words, establishes
the contest, not its resolution.”) (quoted with approval in Houchins v. KQED, Inc.,
438 U.S. 1, 14-15 (1978) (plurality opinion)).
12
For a recent thoughtful analysis of legal materials that “constitute” the
government, without being part of the constitutional text, see Ernest A. Young, The
Constitution Outside the Constitution (Univ. of Texas Sch. of Law, Public Law & Legal
Theory Research Paper No. 119, Feb. 2007), available at SSRN:
http://ssrn.com/abstract=965865 (forthcoming, Yale L.J.).
13
Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250 (codified as
amended at 5 U.S.C. § 552 (2000)); Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat.
1896 (codified as amended at 5 U.S.C. § 552a (2000)); Presidential Records Act of
1978, Pub. L. No. 95-591, 92 Stat. 2523 (codified as amended at 44 U.S.C. §§ 2201–
2207 (2000)); Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824
(codified as amended in scattered sections of 5 U.S.C.); Id. § 601 (codified as
amended at 28 U.S.C. §§ 591–598) (providing for the appointment of a special
prosecutor); Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92
Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801–1871 (2000)), Inspector
General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101 (codified as amended at 5
U.S.C. App. 3 §§ 1–12 (2000)); Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.) (providing
whistle blower protection for federal employees) (amended by Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended in
scattered sections of 5 U.S.C.) (enhancing whistleblower protections) and Act of Oct.
29, 1994, Pub. L. No. 103-424, 108 Stat. 4361 (codified as amended in scattered
sections of 5 U.S.C.) (extending and enhancing whistleblower protections)); General
Accounting Office Act of 1974, Pub. L. No. 93-604, 88 Stat. 1959 (establishing the
GAO); GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811
(codified as amended in scattered sections of 31 U.S.C.) (providing increased
resources and authority to the GAO).
For discussion of the system of post-Watergate transparency structures, see
ALASDAIR ROBERTS, BLACKED OUT 59, 69–71 (2006). On the expansion of the network
of Inspectors General, see PAUL C. LIGHT, MONITORING GOVERNMENT: INSPECTORS
GENERAL AND THE SEARCH FOR ACCOUNTABILITY 26 (1993) (noting the establishment of
an Inspector General at the Defense Department in 1982; at the Justice Department
in 1988; and at the CIA in 1989).
14
E.g.,
History
of
the
Information
Security
Oversight
Office,
http://www.archives.gov/isoo/about/history.html
(“President
Jimmy
Carter
established ISOO with the signing of Executive Order 12065, ‘National Security
Information,’ on December 1, 1978.”); Mission and History: Assistant to the Secretary
of Defense (Intelligence Oversight), http://www.defenselink.mil/atsdio/ (follow
“mission/history” hyperlink) (established originally as Inspector General for
Intelligence in 1976 pursuant to Executive Order (EO) 11905, redesignated in 1982).

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constraining the government’s authority to interfere with dissemination
15
of information that might disclose malfeasance.
During the first five years of the “War on Terror,” secretive Executive
action combined with the panic triggered by the attacks of 9/11 and
single-party control of the electoral branches to render electoral
oversight flaccid and courts compliant. As constitutionally explicit checks
and balances lay supine, the frameworks of transparency that have come
to constitute our governing practice were mustered into the breach.
III. STRUCTURES OF TRANSPARENCY AND A “GLOBAL WAR ON
TERROR”

Transparency can potentially discipline an overreaching Executive
before, during, or after the fact. Before the fact, disclosure of dubious
initiatives might serve as a speed bump, impeding adoption of
problematic policies at the outset. Once policy is set, transparency in the
execution of permissible initiatives might force corrections or deter
excesses during the course of their deployment. Finally, ex-post
disclosure of constitutional violations might precipitate discipline of
malfeasant officials, and serve as a compass, disclosing where the
government is headed and allowing political actors and the electorate to
turn the political system back toward appropriate regard for
16
constitutional values.
In the case studies that follow, as we will see, advocates attempted to
invoke each modality. First, they sought to use sub-constitutional
transparency frameworks to establish an arena for contemporaneous
debate about the dragnet detention of terrorist suspects domestically.
Second, they endeavored to provide the opportunity for ongoing audits
15
The Court established protections for government employees who seek to
inform the public about official overreaching. See United States v. Nat’l Treasury
Employees Union, 513 U.S. 454, 466 (1995); Pickering v. Bd. of Educ., 391 U.S. 563
(1968). But cf. Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). It rebuffed efforts to
gag the objects of public regulation. Butterworth v. Smith, 494 U.S. 624, 635–36
(1990) (rejecting a rule that would inhibit the ability of a grand jury witness “to make
a truthful public statement”). It has provided shields for media which obtain such
information and convey such information. N.Y. Times Co. v. United States, 403 U.S.
713, 714 (1971) (reversing injunction against publication of the Pentagon Papers); cf.
Bartnicki v. Vopper, 532 U.S. 514, 527–28 (2001) (reversing damage award against
newscaster for broadcasting illegally intercepted conversation relating to public
employees union; noting “state action to punish the publication of truthful
information seldom can satisfy constitutional standards”).
16
Each of these mechanisms, of course, is premised on the proposition that
constitutional values have a political constituency. If such a constituency is lacking,
disclosure is likely to have minimal effect. And indeed, if the constituency for
extralegal repression is strong enough, transparency could force marginally lawabiding Executives into still more extreme measures. What is striking about the
“Global War on Terror,” however, is that the Bush administration continued to give
lip service to the rule of law while operating in the shadows, suggesting that the
constituency for legality is in fact an operative constraint.

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of the conduct of Combatant Status Review Tribunals and
deployment of the Patriot Act. Third, they tried to reveal
delegitimize a policy of coercive interrogation. It is in the second
third roles that the sub-constitutional transparency framework
proven most effective.

the
and
and
has

A. A Low Speed Bump: The Case of the Post-September 11 Dragnet

In the aftermath of the attacks of September 11, the administration
undertook a broad-ranging effort to detain individuals suspected of ties
to the attacks or to other terrorist activities. On October 25, 2001, three
weeks after the beginning of the invasion of Afghanistan, Attorney
General John Ashcroft proclaimed that the “anti-terrorism offensive has
arrested or detained nearly 1,000 individuals as part of the September 11
17
In the early phases of the process,
terrorism investigation.”
administration spokesmen regularly issued updates regarding the total
number of individuals detained by this initiative, but officials also began
to restrict the flow of information to Congress, advocacy organizations,
18
and news media. Of particular import for the effort to sweep up noncitizens, a September 21, 2001 directive by Chief Immigration Judge
Michael Creppy required that immigration judges “close immigration
17
John Ashcroft, Att’y Gen., Prepared Remarks for the U.S. Mayors’ Conference
(Oct. 25, 2001), available at http://www.usdoj.gov/archive/ag/speeches/2001/
agcrisisremarks10_25.htm; see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,
215 F. Supp. 2d 94, 97 (D.D.C. 2002).
In tracking down thousands of leads and tens of thousands of tips, the practice
was to “arrest any alien encountered in the course of investigating a JTTF [the FBI’s
New York Joint Terrorism Task Force] or PENTTBOM [the FBI’s investigation into
the September 11 attacks] lead who was found to be in the country illegally.” OFFICE
OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW
OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE
INVESTIGATION OF THE SEPTEMBER 11 ATTACKS, at 14 (2003), available at
http://www.usdoj.gov/oig/special/0306/full.pdf [hereinafter OIG REPORT].
Detainees labeled of “special interest” were held in indefinite detention until they
were “cleared” by the FBI. Id. at 53–57. The criteria for a “special interest”
designation were evidently quite broad. “[S]everal Middle Eastern men were arrested
and treated as connected to the September 11 investigation when local law
enforcement authorities discovered ‘suspicious items,’ such as pictures of the World
Trade Center and other famous buildings, during traffic stops.” Id. at 16. Another
individual of Middle Eastern origin was incarcerated for six months because he
initially sought to purchase a car in early September and put down a deposit, but
failed to return to consummate the purchase. Id. at 42.
18
Dana Milbank & Peter Slevin, Bush Edict on Briefings Irks Hill, WASH. POST, Oct.
10, 2001, at A1 (describing order that “briefings with sensitive information be limited
to eight of the 535 members of Congress,” the sealing of and refusal to release
“customary paperwork” regarding detainees, and difficulties encountered by lawyers
seeking information regarding detained clients); Memorandum from John Ashcroft,
Att’y Gen., to Heads of All Federal Departments and Agencies (Oct. 12, 2001),
available at http://www.usdoj.gov/oip/011012.htm (reversing prior presumption of
FOIA disclosure in the absence of foreseeable harm and substituting a policy of
defending agency refusals to disclose as long as the refusal had a “sound legal basis”).

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proceedings to the press and public (including family members of the
19
deportee) in certain ‘special interest’ [deportation] cases.” On October
29, 2001, a coalition of twenty-three civil liberties organizations,
concerned by reports of racial and religious profiling, incommunicado
detention, and physical abuse, submitted FOIA requests to the FBI, the
INS, and the DOJ’s Office of Information Privacy, seeking information
20
regarding the identity and circumstances of those detained.
As information regarding the dragnet made its way to the public in
21
bits and pieces, the FBI granted expedited review, but rejected the
coalition’s FOIA request on November 1, 2001, on the ground that
responsive materials “could reasonably be expected to interfere with
22
enforcement proceedings.” On November 8, 2001, the administration
ceased reporting the number of individuals questioned, detained, or
arrested, and refused to release information regarding the identities of
23
those detained. The Attorney General defended that position both on

19

Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937, 941 (E.D. Mich. 2002).
Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 97.
Contemporaneously, a group of members of Congress and Senators sought
similar information by letter to the Attorney General. Marilee Miller, 22 Groups,
Feingold Seek Names of 800+ Detainees, CAP. TIMES, Oct. 30, 2001, at 3A; Letter from
Sens. Russell D. Feingold, Edward M. Kennedy & Patrick J. Leahy and Reps. John
Conyers, Jr., Jerrold Nadler & Robert C. Scott to John Ashcroft, Att’y Gen. (Oct. 31,
2001), available at http://www.cnss.org/feingoldletter.pdf.
21
See Amy Goldstein, A Deliberate Strategy of Disruption; Massive, Secretive Detention
Effort Aimed Mainly at Preventing More Terror, WASH. POST, Nov. 4, 2001, at A1
(describing investigation identifying the cases of 235 detainees “located through
court records, news accounts, lawyers, relatives and friends”).
22
Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 98 (describing FBI reliance on
5 U.S.C. § 552(b)(7)(A) (2000)). On December 10, 2001, the FBI affirmed its denial,
id., on the basis that the requested material “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C)
(2000).
23
Amy Goldstein & Dan Eggen, U.S. to Stop Issuing Detention Tallies; Justice Dept. to
Share Number In Federal Custody, INS Arrests, WASH. POST, Nov. 9, 2001, at A16 (The
government would only release information “identifying how many people are being
held on charges of violating immigration laws and how many are in federal custody.”
This “decision to narrow the visible picture of the terrorism investigation comes after
senior government spokesmen have in recent days offered conflicting statements
about the pattern of detentions. It also comes as legal, civil liberties and immigration
groups have begun to protest, contending the Bush administration is being so
secretive that it is unclear whether the detentions are constitutional.”); see also OIG
REPORT, supra note 17, at 1 n.2 (“[T]he Public Affairs Office stopped reporting the
cumulative totals after the number reached approximately 1,200, because the
statistics became confusing.”).
On November 9, 2001, the Justice Department commenced an initiative seeking
interviews with approximately 5,000 foreign nationals between the ages of eighteen
and thirty-three who had entered the United States after January 2000 from countries
“where there have been strong al Qaeda presences,” and on March 20, 2002, the
Justice Department undertook a second round of 3000 “voluntary” interviews. See
Attorney General John Ashcroft, Press Conference (Mar. 20, 2002), available at
20

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the ground that it protected the personal privacy of detainees, and that if
the Department of Justice released information, “We might as well mail
this list to the Osama bin Laden al Qaeda network . . . about which
24
terrorists we have in our custody.”
On December 5, 2001, the coalition of twenty-three civil rights and
human rights groups led by the Center for National Security Studies
(CNSS) and the American Civil Liberties Union (ACLU) filed an action
in D.C. District Court seeking relief from the denial of their FOIA
25
requests. In the course of this litigation, the Department of Justice
provided a series of disclosures beyond its initial public offerings. A
disclosure of documents listing the number and status of detainees
26
accompanied the DOJ’s January 11, 2002 answer to the FOIA complaint,
and a further proffer in June 2002 revealed details concerning the
identity of individuals who had been charged under federal criminal law
27
and the current number of individuals remaining in INS custody. But

http://www.usdoj.gov/archive/ag/speeches/2002/
032002agnewsconferenceedvainterviewprojectresultsannouncement.htm.
24
Attorney General John Ashcroft, Press Conference, Provides Total Number of
Federal Criminal Charges and INS Detainees (Nov. 27, 2001), available at
http://www.usdoj.gov/archive/ag/speeches/2001/agcrisisremarks11_27.htm.
The
Department of Justice was equally reticent in responding to congressional inquiries.
See Russell Feingold, Editorial, Name the Detainees, WASH. POST, Dec. 23, 2001, at B7;
Letter from Daniel J. Bryant, Assistant Att’y Gen., U.S. Dep’t of Justice, to Sen. Russell
D. Feingold (Nov. 16, 2001), available at http://www.cnss.org/bryantletterencl.pdf.
25
Complaint ¶ 2, Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, No. 01-CV-02500
(D.D.C. Aug. 2, 2002) (filed Dec. 5, 2001), available at http://www.epic.org/
open_gov/FOIA/detainee_complaint.pdf. For the complete case file, see The Center
for National Security Studies v. The Department of Justice, available at
http://www.cnss.org/cnssvdoj.htm.
26
See Dan Eggen, Delays Cited In Charging Detainees; With Legal Latitude, INS
Sometimes Took Weeks, WASH. POST, Jan. 15, 2002, at A1 (referring to newly released
documents in the CNSS FOIA suit as providing “the clearest picture yet of the
controversial and secretive dragnet” and using those documents to conclude that
“[s]cores of immigrants detained after the Sept. 11 terror attacks were jailed for
weeks before they were charged with immigration violations, according to documents
released by the Justice Department”); Electronic Privacy Information Center, CNSS v.
DOJ, http://www.epic.org/open_gov/foia/cnss_v_doj.html (“[O]f the 725 detainees
listed in heavily redacted papers the groups received on Jan. 11, 2002, 344 are listed
separately under the caption ‘INACTIVE CASES,’ which would seem to indicate that
these individuals have been cleared of any link to terrorism.”); Joint Terrorism Task
Force Working Group, INS Special Interest List, http://www.cnss.org/
insrelease011102.pdf (redacting identifying information from a partial list of
detainees released in response to FOIA request); U.S. Dep’t of Justice, List of
Detainees, available at http://www.cnss.org/federalcomplaints011102.pdf (providing
names, status, and charges for numerous detainees).
27
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94, 98
(D.D.C. 2002) (“For 718 of the 751 individuals detained, DOJ has revealed their place
of birth and citizenship status, as well as the dates any immigration charges were filed,
and the nature of those charges.”). The disclosures also revealed that 338 of the
individuals had been determined to be “not of current interest” to the September 11

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individual information regarding those detained on immigration
charges, including their names, details of their detention, and the
identities of their attorneys, as well as the total number of individuals
28
arrested and detained, remained sticking points for the administration.
While the coalition’s litigation proceeded, on January 22, 2002, the
ACLU opened a second front by invoking New Jersey’s Open Public
Records Law to seek the identities of INS detainees lodged in New Jersey
29
jails. The New Jersey state trial judge initially ordered release of the
requested information under state law, commenting that secret arrests
30
are “odious to a democracy,” but retroactive interim federal regulations
31
issued in response to that decision effectively preempted disclosure.
Even without judicial intervention, efforts to shield the identities of
the detainees continued to fray. By the end of January 2002, for reasons
of its own, the INS had effectively disclosed identifying information for
the largest group of detainees. That group, held in Pasaic and Hudson
County jails, was allowed to meet with advocacy groups for “know your
32
rights” presentations. And in March 2002, the Inspector General of the
investigation. Petition for Writ of Certiorari at 10, Ctr. for Nat’l Sec. Studies v. U.S.
Dep’t of Justice, 540 U.S. 1104 (2004) (No. 03-472) (quotation marks omitted).
28
The administration also refused to disclose the “the total number of
individuals arrested and detained in connection with its September 11 investigation.”
Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 99. Having disclosed the number of
individuals charged with violations of federal statutes and the number of individuals
detained on immigration charges (and having subsequently disclosed that the
number detained as material witnesses was small, with twenty-six identified at the time
of trial), id. at 107, the refusal to disclose the total number arrested and detained is
something of a mystery. My suspicious side wonders whether there is a hidden group
which was arrested and summarily disappeared into CIA black sites or rendered to
foreign jurisdictions whose existence would be disclosed by aggregate numbers.
29
Elizabeth Llorente, ACLU Sues over Detainees; Demands to Know Who Is in INS
Custody and Why, RECORD, Jan. 23, 2002, at A1; Press Release, ACLU, ACLU of New
Jersey Files Lawsuit Seeking Information on Post-September 11 Detainees (Jan. 22,
2002),
available
at
http://www.aclu.org/immigrants/detention/
11654prs20020122.html.
30
Press Release, ACLU, ACLU of New Jersey Wins Access to Information on PostSeptember 11 Detainees (Mar. 27, 2002), available at http://www.aclu.org/
immigrants/detention/11677prs20020327.html?s_src=RSS; N.J. Judge Orders Counties
to
Release
Detainees’
Names,
FREEDOMFORUM.ORG,
Mar.
28,
2002,
http://www.freedomforum.org/templates/document.asp?documentID=15972.
31
Release of Information Regarding Immigration and Naturalization Service
Detainees in Non-Federal Facilities, 67 Fed. Reg. 19,508 (Apr. 22, 2002) (codified at 8
C.F.R. pts. 236 and 241) (forbidding any state or county jail from releasing
information about INS detainees housed in their facilities, and making the rule
effective on April 17, 2002, a week prior to publication); see also ACLU of N.J., Inc. v.
County of Hudson, 799 A.2d 629, 655 (N.J. Super. Ct. App. Div. 2002) (reversing
grant of disclosure on the basis of preempting regulations).
32
Elizabeth Llorente, INS Will Let Advocates Meet with Detainees, RECORD, Jan. 30,
2002, at A1; Hanna Rosin, Groups Find Way to Get Names of INS Detainees; Presentations
on Rights Planned in N.J. Facilities, WASH. POST, Jan. 31, 2002, at A16. This decision was
contemporaneous with the issuance of an opinion by the INS General Counsel that
“the INS has a duty to remove an alien with ‘reasonable dispatch’ and the removal

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Department of Justice initiated an investigation into the September 11
33
detention program.
During the next months, federal trial judges began to tug at the veil
of secrecy that had been drawn over the dragnet, without substantively
34
confronting the detentions themselves. In April, in Detroit Free Press v.
Ashcroft, a federal trial judge in Michigan held that the blanket closure of
deportation hearings to the public in “special interest” cases related to
the anti-terrorist sweep violated the First Amendment and due process
35
rights of the subject of the hearings. Characterizing the case as being
“about the Government’s right to suspend certain personal liberties in
the pursuit of national security,” the trial judge invoked the authority of
Justice Murphy’s comment on the imposition of martial law in Hawaii:
“The . . . constitutional rights of an accused individual are too
fundamental to be sacrificed merely through a reasonable fear of military
36
assault.” In May, a federal trial judge in New Jersey came to a similar
conclusion in North Jersey Media Group, Inc. v. Ashcroft, an action brought
by newspapers seeking access to “scores, if not hundreds, of immigration
37
hearings” in New Jersey that had been closed as “special interest” cases.

could not be delayed for the exclusive purpose of allowing the FBI to conduct an
investigation to see if the person is a terrorist.” OIG REPORT, supra note 17, at 101.
33
OIG REPORT, supra note 17, at 5.
34
The Department of Justice adopted a strategy to avoid judicial review of the
legality of efforts to hold immigration detainees indefinitely by mooting out habeas
petitions once filed and continuing to hold detainees who had not filed habeas
actions. See OIG REPORT, supra note 17, at 98–100. In April 2002, the Center for
Constitutional Rights filed a class action on behalf of September 11 detainees seeking
damages for abuse, Class Action Complaint and Demand for Jury Trial ¶ 1, Turkmen
v. Ashcroft, No. 02 CV 2307 (JG), 2004 U.S. Dist. LEXIS 14537 (E.D.N.Y. July 29,
2004), but litigation on that case did not commence in earnest until two years later,
Turkmen v. Ashcroft, No. 02 CV 2307 (JG), 2004 U.S. Dist. LEXIS 14537 (E.D.N.Y.
July 29, 2004).
35
Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937, 941 (E.D. Mich. 2002); see
also Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 948, 952 (E.D. Mich. 2002)
(rejecting exhaustion arguments). The court consolidated cases brought by the
Detroit Free Press, the Detroit Herald News, Congressman John Conyers, and a
defendant in a removal proceeding, Rabih Haddad. Haddad’s hearings regarding
detention and bail in December 2001 and January 2002 had been closed to the press
and his family. The trial court rejected government claims that disclosing details
regarding “special interest” detainees could impede terrorism investigations, in part
because details regarding Mr. Haddad’s arrest had already been published, and in
part because he and his counsel remained at liberty to disclose any details revealed in
the hearings. Detroit Free Press, 195 F. Supp. 2d at 947.
36
Detroit Free Press, 195 F. Supp. 2d at 940 (citing Duncan v. Kahanamoku, 327
U.S. 304, 329–30 (1946) (Murphy, J., concurring)).
37
N. Jersey Media Group, Inc. v. Ashcroft, 205 F. Supp. 2d 288, 291 (D.N.J.
2002). The court again rejected the government’s justifications for closure,
commenting that:
The problem with the Creppy Memo is that there is nothing in it to prevent
disclosure of this very information by the “special interest” detainee or that
individual’s lawyer, both of whom are permitted to be present in the “special

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After seeking relief from the Supreme Court, the administration was able
to have the order to open the New Jersey immigration hearings stayed
38
pending appeal.
On August 2, 2002, with only 74 of the original 751 INS detainees
remaining in custody, Judge Kessler in the District of Columbia resolved
the FOIA controversy regarding the coalition request for the detainees’
identities in favor of transparency in Center for National Security Studies v.
39
United States Department of Justice (CNSS). Commenting that “[s]ecret
arrests are a concept . . . profoundly antithetical to the bedrock values
that characterize a free and open [society] such as ours,” she rejected the
administration’s justifications for denying FOIA requests for the
40
identities of the detainees and their attorneys. The core of the debate
focused on FOIA Exemption 7(A), which allows agencies to withhold
material “compiled for law enforcement purposes” that “could
41
reasonably be expected to interfere with enforcement proceedings.”
The administration asserted that revealing the names of the detainees
could inhibit their future usefulness as informants once released, “allow
terrorist organizations to map the progress of the investigation and
thereby develop the means to impede them,” and “allow terrorist
organizations and others to interfere with the pending proceedings by
42
creating false or misleading evidence.”
The trial judge was unpersuaded by any of the justifications for
withholding the names of the detainees. On the first point, the
government had provided “no reason to believe that terrorist groups
would [still] not know of the detentions” ten months after they had taken
place, and moreover “utterly fail[ed] to demonstrate” that the individuals
at issue “actually had some pre-existing link to or knowledge of terrorist
43
activity.” On the question of possible interference with the investigation,
interest” proceedings. Furthermore, if an appeal is taken, the transcript of the
proceedings below would be disclosed in any event.

Id. at 301. For additional discussion of the Creppy Memo, see supra text
accompanying note 19.
38
Ashcroft v. N. Jersey Media Group, Inc., 536 U.S. 954, 954 (2002). The INS had
earlier mooted out an action by a detainee by removing the closure directive in that
case. N. Jersey Media Group, 205 F. Supp. 2d at 291 & n.1.
39
215 F. Supp. 2d 94, 112–13 (D.D.C. 2002). She had previously denied the
plaintiffs’ efforts to use discovery in the case as a vehicle to further explore the
dimensions of federal policy. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, Civ.
Action No. 01-2500 (GK), 2002 U.S. Dist. LEXIS 2983, at *7–8 (D.D.C. 2002).
40
Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 96 (quotation omitted). She went
on to invoke “the core democratic values of openness, government accountability,
and the rule of law” and the Judicial branch’s obligation “to ensure that our
Government always operates within the statutory and constitutional constraints which
distinguish a democracy from a dictatorship.” Id.
41
Id. at 100.
42
Id. at 101 (quoting government affidavits).
43
Id. at 101, 102. Judge Kessler was offended by the government’s refusal in
response to questioning to provide any information regarding the “standard used to

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she rejected the government’s “mosaic theory” “that no information may
be disclosed because ‘bits and pieces of information that may appear
innocuous in isolation, when assimilated with other information . . . will
allow the [terrorist] organization to build a picture of the
44
investigation.’” No plausible argument from evidence supported the
theory, since “the key Government affidavit on the mosaic theory was not
even prepared for this case, but rather is a copy of the affidavit” prepared
for the “special interest closure” litigation in Michigan, and did not
provide a basis for concluding that the bare disclosure of names could
45
have any adverse effect. On the other hand, Judge Kessler accepted that
the “dates and locations of arrest, detention, and release” could plausibly
“provide insights into the past and current strategies and tactics of law
46
enforcement agencies conducting the investigation.”
August 2002 saw the affirmance of the Michigan order barring
blanket closures of “special interest” immigration hearings by the Sixth
Circuit in Detroit Free Press v. Ashcroft. In a unanimous decision authored
by Judge Damon Keith, the panel began by observing that the “political
branches of our government enjoy near-unrestrained ability to control
our borders” and that the “only safeguard on this extraordinary
governmental power is the public, deputizing the press as the guardians
47
of their liberty.” Proclaiming that “[d]emocracies die behind closed
arrest the detainees.” The government rested on the proposition that it could not
“rule out” possible connections to terrorism for every detainee, and that “dire
consequences . . . would flow from even one unnecessary disclosure.” Id. at 102.
44
Id. at 103.
45
Id. at 103–04. Judge Kessler rejected as well claims under Exemptions 7(C) and
7(F) that the privacy interests and personal safety of the detainees required that their
identities not be disclosed, observing that privacy interests were subject to balancing
in the FOIA analysis, and the interest in “verifying whether the Government is
operating within the bounds of law” provides a more than sufficient offsetting
consideration:
Plaintiffs voice grave concerns about the abuse of this power, ranging from
denial of the right to counsel and consular notification, to discriminatory and
arbitrary detention, to the failure to file charges for prolonged periods of
detention, to mistreatment of detainees in custody. . . . The concerns are
sufficiently substantial that DOJ’s Office of the Inspector General has initiated an
investigation into the Government’s treatment of the detainees.

Id. at 105–06. The relief required, however, that detainees be granted the opportunity
to opt out of disclosure. Id. at 106. Judge Kessler also ordered a more thorough
search for the requested policy documents because “it is simply not credible that no
other documents are responsive to Plaintiffs’ request.” Id. at 110.
46
Id. at 108 (quoting government affidavits). She also credited somewhat
speculative fears that disclosure of the place of detention could target retaliatory
attacks. Id. at 108.
47
Detroit Free Press v. Ashcroft, 303 F.3d 681, 682–83 (6th Cir. 2002); see also id.
at 693 (“Even though the political branches may have unfettered discretion to deport
and exclude certain people, requiring the Government to account for their choices
assures an informed public—a foundational principle of democracy.”).
Lest readers miss the historic resonance of concern about secretive overreaching
by government, Judge Keith referred repeatedly to the prevailing opinions in the

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doors,” the opinion rejected the claim that the administration had
48
constitutionally illimitable plenary power over immigration matters. It
concluded that in light of the history of openness of deportation
hearings and the importance of public access as “a check on the actions
of the Executive . . . assuring us that proceedings are conducted fairly
and properly,” the closure of special interest cases was inconsistent with
49
the commands of the First Amendment. The opinion acknowledged the
claim that a “mosaic” pieced together from information provided at open
hearings could interfere with efforts to suppress terrorism, but concluded
that a case-by-case evaluation of the threat was required before a hearing
50
could be closed. “[W]e do not believe speculation should form the basis
51
for such a drastic restriction of the public’s First Amendment rights.”
Pentagon Papers case. Id. at 683 (citing N.Y. Times Co. v. United States, 403 U.S. 713,
728 (1971) (per curiam) (Stewart, J., concurring); id. at 683 n.1 (citing N.Y. Times Co.,
403 U.S. at 716 (Black, J., concurring)); id. at 692 n.9 (citing New York Times Co. v.
United States for the proposition that threats to national security do not generate
“deferential review”); id. at 693 (citing New York Times Co. v. United States for the
proposition that “[t]he guarding of military and diplomatic secrets at the expense of
informed representative government provides no real security for our Republic”); id.
at 710 (citing New York Times Co. v. United States concurrence for the argument that
the Framers were “[f]ully aware of both the need to defend a new nation” and to
protect free speech).
48
Detroit Free Press, 303 F.3d at 683.
49
Id. at 703–04.
50
Id. at 709. The court noted that:
[T]he Government subsequently admitted that there was no information
disclosed in any of Haddad’s first three hearings that threatened “national
security or the safety of the American people.” . . . The only reason offered for
closing the hearings has been that the presiding immigration judge was told do it
by the chief immigration judge, who in turn was told to do it by the Attorney
General.”

Id.
51

Id. On remand, on September 17, 2002, the trial court found that Mr.
Haddad’s due process rights had been violated by the initial closure and ordered that
the government either provide a de novo open hearing or release him. Haddad v.
Ashcroft, 221 F. Supp. 2d 799, 805 (E.D. Mich. 2002). Parts of the subsequent hearing
were closed to the public to allow the introduction of particular sensitive evidence,
but the government’s effort to use ex parte secret evidence was rebuffed, and
Haddad’s counsel was granted access to the contested evidence. Detroit Free Press v.
Ashcroft, Nos. 02-70339, 02-70605, 2002 U.S. Dist. LEXIS 19991, at *3–4 (E.D. Mich.
Oct. 7, 2002). On September 23, 2003, the appeals from those orders were dismissed
as moot in light of the entry and effectuation of a final order of removal. Haddad v.
Ashcroft, 76 Fed. App’x 672, 673 (6th Cir. 2003).
In August 2002, Judge Rakoff in In re Material Witness Warrant, 214 F. Supp. 2d
356, 363 (S.D.N.Y. 2002), ordered an investigation of the case of Abdallah Higazy, an
Egyptian who had been detained as a “material witness” in the aftermath of
September 11. Higazy was bullied into a “confession” by FBI interrogators who
threatened his family in Egypt with torture by Egyptian security forces. The
“confession” was reported to Judge Rakoff as a justification for further detaining Mr.
Higazy. When Mr. Higazy was definitively exonerated and one of his accusers was
shown to have misrepresented crucial physical evidence, Judge Rakoff rejected the
efforts of the government to keep the records of the case sealed. Id. Subsequent

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Two months later, a 2–1 decision of the Third Circuit reached a
different conclusion. In North Jersey Media Group v. Ashcroft, the court
reversed the New Jersey District Court order opening “special interest”
52
deportation hearings to public scrutiny. Writing for the majority, Judge
Becker expressed skepticism that, as a matter of First Amendment
doctrine, “the tradition of openness of deportation proceedings . . .
meet[s] the standard required” to ground a First Amendment right of
53
access. More broadly, the opinion framed the issue as part of an “era
that dawned on September 11” in which the “war against terrorism . . .
has pervaded the sinews of our national life . . . reflected in thousands of
ways in legislative and national policy, the habits of daily living, and our
54
collective psyches.” In this new era, Judge Becker wrote, it was sufficient
to rely on the admittedly “speculative” assertions that opening any part of
any special interest hearing could impede the effort to avoid terrorist
attacks. In general, the opinion expressed hesitance “to conduct a
judicial inquiry into the credibility of these security concerns, as national
security is an area where courts have traditionally extended great
55
deference to Executive expertise.” In particular, the opinion somewhat
paradoxically invoked the lack of public knowledge as a basis for resisting
inquiry “at a time when our nation is faced with threats of such profound
56
and unknown dimension.” Responding to Judge Keith’s aphorism that
“[d]emocracies die behind closed doors,” Judge Becker quoted a
columnist who maintained that the threat to democracy would be even
greater if judicial review opened the door for a successful terrorist attack
because “[i]f that happens, the public will demand, and will get,
57
immense restrictions on liberties.”
efforts to recover damages from the actors in the debacle ran aground on qualified
immunity, Higazy v. Millennium Hotel & Resorts, CDL (N.Y.) L.L.C., 346 F. Supp. 2d
430, 452 (S.D.N.Y. 2004), although some of Mr. Higazy’s claims were reinstated in
Higazy v. Templeton, Docket No. 05-4148-cv, 2007 U.S. App. LEXIS 24443
(2d
Cir.
2007),
available
at
http://howappealing.law.com/
HigazyVsTempleton05-4148-cv_opnWithdrawn.pdf (un-redacted opinion).
52
N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 220 (3d Cir. 2002).
53
Id. at 201.
54
Id. at 202.
55
Id. at 219.
56
Id. at 220.
57
Id. at 220–21 (quoting Michael Kelly, Editorial, Secrecy, Case By Case, WASH.
POST, Aug. 28, 2002, at A23). With some irony, given the administration’s efforts to
avoid habeas petitions, Judge Becker also maintained that the availability of
substantive habeas corpus relief to detainees obviated the need for public oversight of
the deportation process. Id. at 221; cf. Rumsfeld v. Padilla, 542 U.S. 426 (2004).
Chief Judge Scirica’s dissent responded by acknowledging the obligation to defer
to national security concerns on a case-by-case basis, but refusing to abjure an
independent role for judicial review, commenting that “deference is not a basis for
abdicating our responsibilities under the First Amendment,” and citing cases from
the era of Richard Nixon. Id. at 226–27 (Scirica, J., dissenting) (citing United States v.
U.S. Dist. Court, 407 U.S. 297, 321(1972) (holding that “domestic security” is not a
sufficient basis for relaxing the requirements of a warrant and an independent

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In the face of this division of authority between the Third and Sixth
Circuits, the administration adopted a two-pronged response. As a matter
of practice, the administration officially abandoned its blanket policy of
“special interest” closures in favor of case-by-case evaluation of the
58
concrete imperatives for secrecy. As a legal matter, the administration
sought to insulate the issue from Supreme Court review. Having
unsuccessfully sought rehearing en banc of Judge Keith’s decision in the
59
Sixth Circuit, the administration declined to seek certiorari. At the same
time, the administration opposed a petition for certiorari directed to the
Third Circuit’s more congenial, and conflicting, decision. Administration
advocates sought to convince the Court that the conflict was unworthy of
review because the issue had “little continuing practical effect for the
government” in light of the abandonment of the “special interest”

assessment of surveillance needs by a magistrate) and N.Y. Times Co. v. United States,
403 U.S. 713, 714 (1971)).
58
See Immigration Removal Procedures Implemented in the Aftermath of the September
11th Attacks: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the
H. Comm. on the Judiciary, 108th Cong. (June 30, 2005) (statement of Lily Fu Swenson,
Deputy Associate Att’y Gen.), available at http://judiciary.house.gov/
OversightTestimony.aspx?ID=438 [hereinafter Swenson testimony] (“[N]o alien has
been subject to those procedures since December 2002. . . . All of the hearings that
have been fully closed since December 2002 have been closed either on a case-by-case
basis . . . or because the alien is a victim of child abuse. See 8 C.F.R. §§ 1003.27(b)–(c),
1208.6, 1240.11(c)(3)(i).”).
Intriguingly, Ms. Swenson referred to 766 detainees whose cases had been
designated “special interest cases,” notwithstanding the administration’s
representation in CNSS that 751 individuals had been detained for immigration
violations in connection with the September 11 sweep. Ctr. For Nat’l Sec. Studies v.
U.S. Dep’t of Justice, 215 F. Supp. 2d 94, 98 (D.D.C. 2002). This also conflicted with
OIG’s identification of 762 “September 11 detainees.” OIG REPORT, supra note 17, at
20. Given the administration’s penchant for disingenuous parsing of language, one
wonders which cases were resolved off the books as “special interest cases,” and how
many other cases were not subjected to “these procedures,” but were instead denied
open hearings on other grounds.
We now know that during the period of September 27, 2002 to October 7, 2002,
the Department of Justice played a game of three-card monte with the attorney for
Maher Arar, misleading him as to Arar’s location and rushing through Arar’s
compelled removal to Syria for torture on the basis of classified, but inaccurate,
information. Arar v. Ashcroft, 414 F. Supp. 2d 250, 254 (E.D.N.Y. 2006).
59
Detroit Free Press, Inc. v. Ashcroft, No. 02-1437, 2003 U.S. App. LEXIS 1278,
at *1 (6th Cir. Jan. 22, 2003)

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60

procedure and the effort to formulate revised regulations. That
61
opposition proved successful: review was denied.
This allowed the administration to continue to invoke the Third
Circuit’s opinion and the “threats of . . . profound and unknown
62
dimension” as a justification for withholding information, and to
maintain its ability to avoid the Sixth Circuit’s mandate in immigration
hearings by judicious geographical manipulation. The administration
continued to proclaim that “except in the territorial region covered by
the United States Court of Appeals for the Sixth Circuit, there is no legal
bar to the implementation of measures such as those in the Creppy
memorandum [because] the Supreme Court declined to review the issue,
63
thus leaving the Third Circuit’s decision undisturbed.”
In April 2003, a year and a half after the initial sweeps, as the
invasion of Iraq began, the great bulk of the cases involved had been
64
resolved by deportation, departure, or release. The petition for
certiorari in the New Jersey immigration closure case was pending, and
the appeal from the CNSS FOIA case ordering disclosure of the identities
of the individual detainees had been argued. On April 29, 2003, the
Department of Justice Inspector General completed a report setting forth
the parameters of the September 11 sweeps, the erratic process of
designating “special interest” cases, the application of shackles, irons, and
leg restraints, incommunicado detention regardless of actual level of
suspicion, the often illegal process of indefinite detention for
investigation, and the harassment and abusive treatment suffered by
65
detainees in New York and New Jersey facilities. The report’s contents
66
began to leak out in May 2003, and it was officially released in redacted
60

Brief for the Respondents in Opposition at 13, N. Jersey Media Group Inc. v.
Ashcroft, 538 U.S. 1056 (2003) (No. 02-1289) (filed Apr. 2003), available at
http://www.usdoj.gov/osg/briefs/2002/0responses/2002-1289.resp.pdf.
The
government represented that there were only “three other aliens in the United States
who remain designated as ‘special interest’ cases” and that “they face no reasonable
likelihood of proceedings before an immigration judge at any time in the foreseeable
future.” Id. at 12 n.5.
61
N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert.
denied, 538 U.S. 1056 (2003).
62
Id. at 220.
63
Swenson testimony, supra note 58.
64
See Brief for the Respondents in Opposition, supra note 60, at 12 (representing
that only three “special interest” cases remained); OIG REPORT, supra note 17, at 105
fig. 8 (reporting release/removal dates ranging from September 2001 to August
2002). The OIG Report also notes sixty-eight cases for which no release or removal
dates could be ascertained. Id. Again, this could denote either chaotic record-keeping
or ghost detainees.
65
OIG REPORT, supra note 17, at 111–85.
66
Dan Eggen, Report Criticizes Post-Sept. 11 Interviews, WASH. POST, May 10, 2003, at
A13 (“Several sources familiar with the draft report said it includes significant
criticism of the government’s conduct. . . . But a senior Justice official called that
allegation unfounded and said the report, which has been beset with delays, should
be released soon.”); Justice and 9/11 Detainees: Critical Report (CNN television broadcast

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67

form on June 2, 2003. As released, the report continued to withhold the
locations of apprehensions outside New York and New Jersey, as well as
68
the identities of the detainees and their attorneys.
In this environment, the DC Circuit addressed the appeal from the
FOIA order to disclose the identity of detainees on June 17, 2003, in
69
Center for National Security Studies v. United States Dep’t of Justice. Writing
for a 2–1 majority, Judge Sentelle reversed the order below, and upheld
the refusal to disclose the identities of detainees as information that
could be “reasonably expected to interfere with enforcement
proceedings.” Invoking the danger of an enemy “with capabilities beyond
the capacity of the judiciary to explore,” Judge Sentelle began the
analysis with the proposition that the Executive should be deemed to
have “unique insights” and that claims of possible interference should be
70
entitled to “deference.” Deferring to affidavits by “the government’s top

May 20, 2003), available at http://transcripts.cnn.com/TRANSCRIPTS/0305/30/
se.16.html (“CNN learned the Justice Department’s inspector general has found
significant problems in the way immigration detainees . . . were treated.”).
67
OIG REPORT, supra note 17, at 16–17, 42.
68
OIG REPORT, supra note 17, at 22 (redacting locations of arrest); see generally id.
passim (referring to detainees and attorneys but not including names). A subsequent
report, released in December 2003, confirmed in graphic detail the abuse of
detainees in New York facilities. OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE,
SUPPLEMENTAL REPORT ON SEPTEMBER 11 DETAINEES’ ALLEGATIONS OF ABUSE AT THE
METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK (2003), available at
http://www.usdoj.gov/oig/special/0312/final.pdf.
69
331 F.3d 918 (D.C. Cir. 2003).
70
Id. at 920, 927–28. As a legal matter, the opinion inaptly conflates analysis in a
line of precedent mandating deference in matters of national security under FOIA
Exemption 1 which was not at issue because the information in dispute was not
properly classified, and determinations under Exemption 3, which did not apply
because the explicit statutory mandate of the CIA was irrelevant, with analysis of the
law enforcement exception under FOIA Exemption 7(A) that was actually at issue.
Compare 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552(b)(3) with 5 U.S.C. § 552(b)(7)(A)
(2000).
The trial court had noted as much. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 215 F. Supp. 2d 94, 103 (D.D.C. 2002) (“[T]here is simply no existing
precedent applying the mosaic theory to Exemption 7.”). Commentators have
concurred. E.g., David E. Pozen, The Mosaic Theory, National Security, and the Freedom of
Information Act, 115 YALE L.J. 628, 660 (2005) (referring to “unwillingness to secondguess the Executive” as “brazenly ahistorical”); id. at 672 (“[M]osaic theory [is] ripe
for agency opportunism and abuse.”); Meredith Fuchs, Judging Secrets: The Role Courts
Should Play in Preventing Unnecessary Secrecy, 58 ADMIN L. REV. 131, 167 (2006)
(commenting that the CNSS opinion was “remarkable . . . because it extended the
concept of deference beyond its traditional domain” and plausible basis in legislative
history); Christina E. Wells, CIA v. Sims: Mosaic Theory and Government Attitude, 58
ADMIN L REV. 845, 854 (2006) (criticizing mosaic theory as creating a “vacuum of
knowledge that effectively paralyzes judicial assessment of the government’s claims”);
cf. Martin Halstuk & Eric Easton, Of Secrets and Spies: Strengthening the Public’s Right to
Know about the CIA, 17 STAN L. & POL’Y REV. 353, 373 (2006) (noting that Exemption 1
provides checks on discretion to withhold information because the classification must
be appropriate).

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counterterrorism officials,” Judge Sentelle accepted the claims that “what
may seem trivial to the uninformed, may appear of great moment to one
who has a broad view,” that a “complete list of names informing terrorists
of every suspect detained . . . would give terrorist organizations a
composite picture of the government investigation,” and that a list of the
attorneys of those detained “would facilitate the easy compilation of a list
of all detainees . . . [and] if such a list fell into the hands of al Qaeda, the
71
consequences could be disastrous.” Rather than exploring the facts,
highlighted by the dissent, that the government had acknowledged some
of the detainees were entirely innocent, that disclosure of the identity of
those individuals had not been alleged to carry a reasonable probability
of disclosing a “mosaic” of investigative strategy, and that the publicly
available records bore evidence of government abuses in the sweeps,
Judge Sentelle aligned himself with “several federal courts that have
wisely respected the executive’s judgment in prosecuting the national
72
response to terrorism.” He invoked the Third Circuit’s opinion in North
Jersey Media Group, which the administration had struggled to keep from
Supreme Court review on the ground that it was of no practical
73
74
importance, and the Fourth Circuit’s decisions in Hamdi v. Rumsfeld,
75
which would be reversed by the Supreme Court a year later.
The CNSS plaintiffs sought review in the Supreme Court. In
opposing certiorari, the administration portrayed the case as a matter
that raised no real challenge to principles of open government. It
emphasized that the litigation had already resulted in the release of a
76
“significant amount of information,” that detainees remained free to
disclose information regarding their situations, that allegations of abuse
had been “exhaustively evaluated in a publicly released report by the
77
Department of Justice’s Inspector General,” and that the case presented
a garden variety “record-bound” conflict raising no issues of legal
78
principle. The Supreme Court denied certiorari of CNSS six months
79
later, in January 2004.
Efforts by advocates had begun in 2001 as an attempt to shed light
on an ongoing dragnet. Despite the defeats in CNSS and North Jersey
Media Group, critics did in fact bring to public display details of the
detentions in the immediate wake of September 11, and of the abuses
71

Ctr. for Nat’l Sec. Studies, 331 F. 3d at 928–29, 933.
Id. at 932.
73
See supra note 60 and accompanying text.
74
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (Jan. 2003); Hamdi v.
Rumsfeld, 296 F.3d 278 (4th Cir. 2002) (July 2002).
75
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
76
Brief for the Respondent in Opposition at 5, Ctr. for Nat’l Sec. Studies v. Dep’t
of Justice, 540 U.S. 1104 (2004) (No. 03-472) (filed Dec. 2003), available at
http://www.cnss.org/Gov.%20Opposition%20to%20Cert.pdf.
77
Id. at 11 n.3.
78
Id. at 15.
79
Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 540 U.S. 1104 (2004).
72

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that accompanied them. Some courts acquiesced in extraordinarily
speculative national security claims for secrecy—secrecy more plausibly
explained as a shield against outside inquiry into wrongdoing. But the
institutional frameworks of transparency ultimately informed the public.
Some information was gathered by assiduous news media from the
80
subjects of government attentions. Some was provided by conscientious
81
civil servants. Persistent advocacy of transparency met partial success in
the courts, as administration officials disseminated the outlines of the
82
initial sweep, and maneuvered to avoid determinative adverse decisions.
Legally, the administration established at worst an equivocal legal regime.
Aided by a right of internal access, political insulation and bureaucratic
integrity, the Department of Justice Inspector General exercised its office
83
with diligence in both gathering information and analyzing it.
These disclosures bolstered efforts to seek redress for some victims of
84
the abuses immediately following September 11. But they emerged too
late to provide any practical impediment to the abuses accompanying the
initial sweeps, and transparency mechanisms seem to have provided no
initial check on the domestic initiatives that followed. The public record
of litigation provides glimpses of the nature of the abuses accompanying
85
the subsequent pursuit of “terrorists” in the continental United States.
80
See Goldstein & Eggen, supra note 23 (describing investigation and piecemeal
assembly of information).
81
See supra notes 32–33.
82
See supra notes 26–27, 58–61 and accompanying text.
83
See supra notes 65–67 and accompanying text.
84
See Turkmen v. Ashcroft, No. 02 CV 2307 (JG), 2006 U.S. Dist. LEXIS 39170
(E.D.N.Y. June 14, 2006) (sustaining against motion to dismiss claims of abuse in
custody in class action by detainees, but dismissing claims of pretextual use of
immigration charges and excessive detention); id. at *9–10 (noting that after oral
argument on a motion to dismiss, “in light of the OIG Report, the plaintiffs sought
leave by letter dated June 5, 2003 to amend their complaint. Around that time, the
government withdrew from representing the named defendants in their individual
capacities . . . .”); Elmaghraby v. Ashcroft, No. 04-CV-1409 (JG), 2005 U.S. Dist. LEXIS
21434, at *114 (E.D.N.Y. Sept. 27, 2005) (sustaining claim of abuse in custody and
discriminatory treatment in custody against motion to dismiss in individual case); id.
at *87 n.25 (citing OIG REPORT, supra note 17).
The Department of Justice Inspector General reports that some internal reforms
advocated in its report have been effectuated. See generally Letter from Glenn A. Fine,
Inspector Gen., to Reps. F. James Sensenbrenner, Jr. & John Conyers, Jr. (Jan. 5,
2004), available at http://www.usdoj.gov/oig/special/0401/final.pdf, but that efforts
to put in place internal legal constraints on actions of the Department of Homeland
Security remain stymied. See OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE,
REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA PATRIOT ACT 8
(Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703/final.pdf.
85
See, e.g., Al-Kidd v. Gonzales, No. CV: 05-093-S-EJL, 2006 U.S. Dist. LEXIS
70283, at *38 (D. Idaho Sept. 27, 2006) (sustaining against a motion to dismiss an
action for damages by an American citizen from Idaho who, on March 16, 2003, “was
handcuffed and arrested pursuant to a material witness warrant at the ticket counter
of the Dulles International Airport while he was checking in for his flight to Saudi
Arabia[,] . . . taken to various different detention centers and eventually transported

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But there is still no broader public accounting of how many individuals
have been arrested, detained, and deported, or who they were. Efforts to
seek information on subsequent sweeps proved to be primarily
86
retrospective.
back to Idaho where, on March 31, 2003, he was released pursuant to certain terms
and conditions which precluded him from leaving a four-state area of the United
States.” He was never charged and never called as a witness. (citation omitted));
Adam Liptak, Threats and Responses: The Detainees; For Post-9/11 Material Witness, It Is a
Terror of a Different Kind, N.Y. TIMES, Aug. 19, 2004, at A1 (reporting that “[a]bout 60
other men have been held in terrorism investigations under the federal material
witness law since the Sept. 11 attacks”); Arar v. Ashcroft, 414 F. Supp. 2d 250, 279
(E.D.N.Y. 2006) (dismissing on grounds of “special factors counseling hesitation” and
the need for secrecy an action by Maher Arar, an innocent Canadian citizen who was
detained in September 2002, deported to Syria, imprisoned, and tortured for a year);
COMM’N OF INQUIRY, REPORT OF THE EVENTS RELATING TO MAHER ARAR 9–10 (Sept. 18,
2006), available at http://www.ararcommission.ca/eng/AR_English.pdf (confirming
Arar’s allegations); Maher Arar: Timeline, CBC NEWS, Jan. 26, 2007, available at
http://www.cbc.ca/news/background/arar/; United States v. Awadallah, 436 F.3d
125, 129, 137 (2d Cir. 2006) (refusing to dismiss prosecution of a material witness
alleged to have falsely denied knowing an individual under investigation); id. at 129
(“After the questioning on September 21, Awadallah was arrested on a material
witness warrant[,] . . . detained without bail based on judicial findings that he
possessed information material to the grand jury’s investigation of the September 11
attacks,” shuttled around the country, held in solitary confinement, and subjected to
physical abuse.); Habeeb v. Castloo, 434 F. Supp. 2d 899, 912 (D. Mont. 2006)
(dismissing suit for arrest and attempted deportation in April 2003 of Iraqi refugee,
on qualified immunity grounds); Class Action Complaint at 2–3, Rahman v. Chertoff,
No. 05C-3761, 2007 U.S. Dist. LEXIS 54960 (N.D. Ill. July 26, 2007) (challenging the
DHS practice of misidentifying U.S. citizens (and others) re-entering the U.S. as
watch list members and their consequent prolonged and unreasonable detention);
Complaint, Tabbaa v. Chertoff, No. 05-CV-582S, 2005 U.S. Dist. LEXIS 38189, at *52
(W.D.N.Y. Dec. 22, 2005) (dismissing claim regarding the search and detention of 5
Muslims returning from Islamic conference in Canada); FBI’s Anti-Terror “October
Plan”: Operation Intended To Prevent Terror Attack Timed To Election, CBS NEWS, Sept. 17,
2004, available at http://www.cbsnews.com/stories/2004/09/17/eveningnews/
main644096.shtml (reporting an “internal e-mail advisory to supervisory agents this
week from the FBI’s ‘‘04 Threat Task Force’” setting forth a plan “‘to foster the
impression that law enforcement is focused on individuals who may be a threat,’”
involving “‘aggressive—even obvious—surveillance techniques to be used on a short
list of people suspected of being terrorist sympathizers, but who have not committed
a crime” and authorizing “‘persons of interest,’ including their family members, [to]
be brought in for questioning”); Complaint for Declaratory and Injunctive Relief at 5,
Am.-Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland Sec., No. 06-CV01770 (D.D.C. Oct. 17, 2006), available at http://adc.org/PDF/ADC_Complaint.pdf
(alleging an announcement by the Department of Homeland Security of 230 arrests
and 900 “investigations”).
86
See, e.g., Arab-American Group Sues U.S. Government; Organization Files Lawsuit to
Gain Access to Immigration Violators’ Names, MSNBC.COM, Oct. 17, 2006,
http://www.msnbc.msn.com/id/15311533/ (reporting a FOIA action seeking access
to information about the nationalities of more than 230 people arrested for
immigration violations during the “October Program” in 2004); Complaint, supra note
85; Susan Jones, Activists Smell a Rat in Homeland Security Efforts, CNSNEWS.COM, Aug.
18,
2004,
http://www.cnsnews.com/
ViewNation.asp?Page=%5CNation%5Carchive%5C200408%5CNAT20040818a.html

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This pattern is largely mirrored in other areas of transparency
87
struggles regarding “anti-terrorist” initiatives. The secrecy in which
initiatives are shrouded, combined with resistance to FOIA requests, the
slow pace of FOIA processing and litigation, and the tendency of
investigations and leaks to occur only after the fact, has meant that
transparency mechanisms have generally not functioned to provide
occasions for public reflection on the adoption of problematic policy.
88
With a few exceptions, transparency mechanisms are reactive.

(“Several groups in Illinois are now suing the federal government, seeking
information . . . about the National Security Exit/Entry Program, known as Special
Registration, which required thousands of immigrants to submit to registration and
questioning.”); id. (“‘Reports across the nation indicated that many long-time
residents were detained or deported after they voluntarily appeared as part of the
Special Registration program.’”).
87
See discussion of Guantanamo litigation, Patriot Act, and torture litigation infra
Part III.B–C.
88
One partial success came in the efforts of Admiral Alberto Mora to derail
approval of coercive interrogation methods by the Department of Defense. See Jane
Mayer, The Memo, NEW YORKER, Feb. 27, 2006, at 32, available at
http://www.newyorker.com/printables/fact/060227fa_fact. Admiral Mora deployed
an article revealing existing coercive interrogation methods in December 2002 to
argue in January of 2003 that approval of such techniques should be withdrawn
because they could not remain secret and would prove embarrassing. Memorandum
from Alberto J. Mora to Inspector General, Dep’t of the Navy 9 (2004), available at
http://www.aclu.org/pdfs/safefree/mora_memo_july_2004.pdf (citing Dana Priest &
Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics
Used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at
A1). See also infra notes 204–05 and accompanying text (discussing the partial
recognition of Geneva Convention obligations after the leak of a memorandum
referring to the Conventions as “quaint”).
Somewhat more clearly, a series of FOIA requests by the ACLU lent efficacy to a
campaign to persuade states to withdraw from the MATRIX (Multistate AntiTeRrorism Information eXchange) surveillance network. See ACLU, Feature on
MATRIX, available at http://www.aclu.org/privacy/spying/15701res20050308.html;
ACLU, State-by-State Breakdown on Participation in MATRIX, http://www.aclu.org/
safefree/resources/16906res20040116.html (providing links to FOIA requests and
withdrawals from the program); The ACLU in the Courts Since 9/11,
http://www.aclu.org/pdfs/safefree/since911pastcases_20061019.pdf
(describing
“simultaneous Freedom of Information Act requests in eight states concerning those
states’ participation in the ‘MATRIX’ database surveillance system” following an
October 2003 federal FOIA request, resulting in the ultimate abandonment of the
program in 2005). Cf. American Library Association, Department of Justice Rescinds Order
for Libraries to Destroy Documents (July 30, 2004), available at http://www.ala.org/
al_onlineTemplate.cfm?Section=American_Libraries&template=/ContentManageme
ntDisplay.cfm&ContentID=72146 (describing rescission of order to destroy
documents in depository libraries after American Library Association filed FOIA
requests for the documents at issue).

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B. Transparency Mechanisms as Audits: Guantanamo Tribunals and the Patriot
Act

To be reactive is not to be without effect. In corporate culture, the
findings of audits after the initial implementation of policies can serve as
spurs to correct mistakes. In national governance, disclosures of the
manner in which initiatives are implemented can provide a basis to bring
erring executives back into line with the requirements of policy.
In the two case studies that follow, FOIA inquiries concerned
initiatives in the “War on Terror” that were publicly announced. In the
case of the Guantanamo Combatant Status Review Tribunals, FOIA
requests and litigation by news media levered information regarding the
conduct of the tribunals and the identities of the subjects into the public
arena; they provided a forum for a skeptical trial judge to publicly take
the administration to task for its efforts to suppress information. In the
case of the Patriot Act, a persistent and coordinated strategy of political
opposition, FOIA requests, and substantive litigation combined to
disclose overreaching and to catalyze internal oversight mechanisms and
substantive reform.
1. FOIA Alone: Sunlight on the Guantanamo Tribunals
The existence of the prison camp at Guantanamo has never been a
secret; the administration publicly stated an intent to place “enemy
89
combatants” in Guantanamo on December 27, 2001, and the arrival of
prisoners in early January 2002 was heralded by a press conference
90
announcement. But during the next two years, details of the identities
of the prisoners, their alleged misdeeds, and the treatment accorded
them emerged only fitfully.
In response to the Supreme Court’s trilogy of detainee cases in June
91
2004, the Department of Defense (DoD) established a program of
“Combatant Status Review Tribunals” to evaluate the justifications for
92
holding the remaining Guantanamo detainees. As a number of
individuals subject to the tribunals continued challenges to their

89
DefenseLink News Transcript: DoD News Briefing – Secretary Rumsfeld and
Gen. Myers (Dec. 27, 2001), available at http://www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=2696.
90
DefenseLink News Transcript: DoD News Briefing - Secretary Rumsfeld and
Gen. Myers (Jan. 11, 2002), available at http://www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=2031; Steve Vogel, U.S. Takes Hooded, Shackled Detainees to
Cuba, WASH. POST, Jan. 11, 2002, at A10. The government did attempt to suppress
pictures of the hooded and shackled detainees. Joe Williams, Some Networks Nix
Prisoner Video, DAILY NEWS, Jan. 12, 2002, at 8.
91
Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004);
Rumsfeld v. Padilla, 542 U.S. 426 (2004).
92
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 450 (D.D.C. 2005). See
also U.S. Dep’t of Def., Detainee Related Documents, http://www.dod.mil/pubs/
foi/detainees/index.html (providing lists of detainees and other information about
them).

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detention and the conduct of those tribunals in the courts, the Defense
Department sought to shield information regarding both the identities of
93
the Guantanamo prisoners and the functioning of the tribunals. In
November 2004 and January 2005 the Associated Press filed FOIA
requests seeking transcripts of the tribunal proceedings, documents
containing allegations or accounts of detainee mistreatment by DoD
personnel, documents identifying resulting disciplinary action,
documents provided to each detainee stating the basis for his detention
94
as an enemy combatant, and other related documents. The requests
languished while the tribunal process lumbered toward its culmination,
95
releasing only a small fraction of the prisoners.
On April 19, 2005, the Associated Press filed suit to require the
processing of its request and the release of transcripts. The Department
of Defense began to release the bulk of the requested documents
96
forthwith. This alone is worthy of remark, given the prior efforts to
97
shield Guantanamo from public review. The thousands of pages of
transcripts paved the way for analyses casting doubt on the claim that
Guantanamo housed the “worst of the worst,” even on the government’s
98
evidence.
93

E.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 453 (discussing
government’s opposition to discovery regarding the functioning of tribunals); Brooks
Egerton, Losing a Fight for Detainees; Officer Says He Leaked List of Terror Suspects in the
Name of Justice; Now Convicted, He Could Face Prison Term, DALLAS MORNING NEWS, May
18, 2007, at 1A (describing prosecution, beginning in 2005, of Matthew Diaz, military
lawyer who provided a list of the names of prisoners to civil rights attorneys). The
Department of Defense continued its court martial proceedings against Cmdr. Diaz
even after the names had been disclosed in response to FOIA litigation. Id. (“When
asked why the government pressed on with its criminal case against Cmndr. Diaz,
Navy spokeswoman Beth Baker said, ‘I can’t give you a philosophical answer.’”).
94
Associated Press v. U.S. Dep’t of Def., No. 05 Civ. 5468 (JSR), 2006 U.S. Dist.
LEXIS 67913, at *1–2 (S.D.N.Y. Sept. 20, 2006); Associated Press v. U.S. Dep’t of Def.,
395 F. Supp. 2d 15, 16 (S.D.N.Y. 2005).
95
Associated Press, 395 F. Supp. 2d at 16 (noting that while 520 prisoners were
classified as “enemy combatants,” only 38 prisoners were exonerated).
96
Id.
97
Cf. Guantanamo Inmates Defy American Guards, MSNBC.COM, July 1, 2005,
http://www.msnbc.msn.com/id/8435874 (“What emerges from 278 pages of the
newly released documents is the degree of defiance by the terrorism suspects at
Guantanamo.”).
98
See Eric Umansky, Who are the Prisoners at Gitmo?, COLUM. JOURNALISM REV.,
Sept./Oct. 2006, available at http://www.cjr.org/issues/2006/5/Umanskyb.asp;
Corine Hegland, Guantanamo’s Grip, NAT’L J., Feb. 4, 2006, available at
http://nationaljournal.com/about/njweekly/stories/2006/0203nj1.htm;
MARK
DENBEAUX & JOSHUA DENBEAUX, REPORT ON GUANTANAMO DETAINEES: A PROFILE OF 517
DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA, available at
http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf (relying on initial
transcript release).
Subsequent FOIA requests by counsel for detainees also facilitated their efforts to
seek legal vindication. See Melissa Hoffer, Torture in Guantanamo, CAGEPRISONERS.COM,
Apr. 20, 2006, http://www.cageprisoners.com/articles.php?id=13493 (“In April 2005,

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At the same time, the Department redacted the names of the
individuals involved, hindering efforts to evaluate the fairness of the
proceedings and the plausibility of the charges. Administration lawyers
did not seek to justify the excisions on the ground of any imperative of
national security. Rather, they argued that the identities were shielded by
FOIA Exemption 6, which allows the withholding of “personnel and
medical files and similar files the disclosure of which would constitute a
99
clearly unwarranted invasion of personal privacy.” The administration
maintained that if “terrorist groups or other individuals abroad are
displeased by something the detainee said to the Tribunal, [the
Department of Defense] believes that this could put his family at serious
risk of reprisals,” and that upon the hypothetical release of the prisoners,
100
they themselves might be subject to reprisals.
On August 29, 2005, Judge Jed Rakoff, who had previously
encountered the administration’s efforts to shield its abuses from public
101
view in the case of Abdallah Higazy, registered ironic skepticism
regarding the administration’s solicitude for the prisoners whom they
had detained for over two years: “One might well wonder whether the
detainees share the view that keeping their identities secret is in their
own best interests. But—given that the detainees are in custody and
102
therefore readily available—it is really not difficult to find out.” He
ordered that the detainees each be provided with a brief written
questionnaire inquiring whether they wished to have their identifying
information released.
The administration responded by seeking reconsideration,
provoking a more biting response from Judge Rakoff. He commented
that “some might think it strange, even hypocritical, that the military
officials who held the detainees incommunicado for so many months
103
now express such solicitude for the detainees’ privacy rights,” rejected
claims of logistical burden as “a model of hyperbole,” and rebuffed the

my colleagues and I filed a Freedom of Information Act suit seeking records
concerning our clients’ treatment at Guantánamo. As a result, the U.S. produced
thousands of documents, including one confirming medical personnel involvement
in interrogation. Lakhdar has been interrogated between 100 and 200 times.”); Carol
Leonnig, Guantanamo Detainee Suing U.S. to Get Video of Alleged Torture, WASH. POST,
Apr. 14, 2005, at A2.
99
5 U.S.C. § 552(b)(6) (2000); see Associated Press, 395 F. Supp. 2d at 16.
Administration attorneys may have been constrained from invoking national security
claims under Exemption 1 by the adverse reaction to the effort to classify reports of
the Abu Ghraib abuse in 2004, and directions to Defense Department elements
holding prisoners not to use national security classification to avoid embarrassment.
See discussion infra notes 268–72 and accompanying text.
100
Associated Press, 395 F. Supp. 2d at 16.
101
See supra note 51.
102
Associated Press, 395 F. Supp. 2d at 16-17.
103
Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 18–19 (S.D.N.Y.
2005).

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claim that the President’s “constitutional authority to wage war as
104
Commander in Chief” exempted Guantanamo from judicial oversight.
When the questionnaires were finally administered, only 17 of the
317 prisoners queried manifested an objection to release of their
105
identities. In light of this response, as well as FOIA’s presumption of
disclosure, Judge Rakoff concluded that the government had not met its
burden of demonstrating that disclosure of the identities “‘would
constitute’ (as opposed to ‘could reasonably be expected to constitute’) a
‘clearly unwarranted’ (as opposed to simply ‘unwarranted’) invasion of
106
personal privacy.” He entered an order requiring release of the
identities.
Nothing daunted, administration lawyers sought reconsideration,
asserting that the initial opinion had been inadequately attentive to the
interests of friends and family members, though they declined the
opportunity to provide a more particularized showing regarding
expectations of privacy and possible retaliation. This provoked tart
responses. Judge Rakoff first rejected the motion as procedurally
107
improper, but went on to reject it on the merits. As to friends and
family members, he reiterated that “the Government has not introduced
the slightest evidence that such embarrassment or retaliation is likely,
confining itself . . . to wholly conclusory and grossly speculative
108
assertions.” As to expectations of privacy, he observed that prisoners
who elected to participate in tribunals had chosen to go forward without
any assurance that their identities would remain private, observing that
“it is hard to escape the inference that the Government’s entire
Exemption 6 argument before this Court is a cover for other concerns,

104

Id. at 20 (“[H]ow long does it take to translate the six or seven sentences that
constitute this simple questionnaire? In seeking to bring the Department’s treatment
of the detainees within the ambit of law, the Supreme Court has not hesitated to
impose far greater logistical burdens.” (citing Hamdi v. Rumsfeld, 542 U.S. 507
(2004))).
105
Associated Press v. U.S. Dep’t of Defense, 410 F. Supp. 2d 147, 150 (S.D.N.Y.
2006) (63 checked yes, 17 checked no, 35 returned the form without checking
anything, and 202 declined to return the form).
106
Id. at 150 (emphasis omitted) (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 756 (1989)). Judge Rakoff rejected the
claim that the prisoners had a “reasonable expectation” of privacy, and observed that
since the “Department of Defense has failed to come forward on this motion with
anything but thin and conclusory speculation to support its claims of possible
retaliation,” it had entirely failed to meet its burden of establishing a clearly
unwarranted intrusion on privacy. Id. at 151.
107
Judge Rakoff began with the procedural observation that the DoD had not
previously raised this argument: “[A]n argument made only in a footnote is not
preserved for purposes of reconsideration. . . . To put it colloquially, a motion for
reconsideration is not a game of ‘gotcha.’” Id. at 153.
108
Id. at 157.

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such as the Government’s desire, only recently modified by the courts, to
109
keep the detainees incommunicado with the outside world.”
On April 19, 2006, a year after the filing of the FOIA action and
twenty months after the Review Tribunals commenced, the Defense
110
Department reversed the redactions of identities, and on May 15, 2006,
111
it released a list of all present and former Guantanamo detainees.
2. The Campaign to Illuminate the Patriot Act
Few legislators had the opportunity to parse the “USA PATRIOT”
Act in its entirety when it was proposed in October 2001. Concern about
the expansion of unchecked surveillance opportunities, however, was
great enough that a number of its provisions were subject to a four-year
109

Id. at 156 n.2 (citing Rumsfeld v. Padilla, 542 U.S. 426 (2004)).
Pentagon Releases First List of Names of Guantanamo Detainees, USATODAY.COM,
Apr.
20,
2006,
http://www.usatoday.com/news/washington/
2006-04-19-gitmo-names_x.htm; see U.S. Dep’t of Def., Detainee Related Documents,
available at http://www.dod.mil/pubs/foi/detainees/index.html (noting that
detainee list was released on April 19, 2006).
111
Ben Fox, Diverse Group of Detainees at Guantanamo, WASH. POST, May 16, 2006,
available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/16/
AR2006051600124.html (“The list provides the first full official accounting of all
those who have been held by the military in Guantanamo on suspicion of links to alQaida or the Taliban. The document provides the names, hometowns and dates of
birth of 759 current and former detainees.”).
In a subsequent chapter of the litigation, Judge Rakoff rejected Exemption 6 and
7(C) privacy claims and ordered the release of the identities of detainees who
charged abuse by their captors, and who had been involved in detainee-againstdetainee abuse, citing “evidence that would warrant a belief by a reasonable person
that the alleged Government impropriety might have occurred.” Associated Press v.
U.S. Dep’t of Defense, No. 05-CV-05468 (JSR), 2006 U.S. Dist. LEXIS 67913, at *12–
13 (S.D.N.Y. 2006) (applying the standard set forth in Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157 (2004)). He also ordered the release of the identities
of transferred and released detainees in the face of deliberative privilege claims
under Exemption 5 and privacy claims under Exemption 6. Id. at 24, 34-35 (citing 5
U.S.C. § 552(b)(5), (6) (2000)).
In the next iteration, Judge Rakoff ordered the release of height and weight
information regarding detainees in the face of privacy claims under Exemption 6, on
the basis of the public interest in evaluating the effect of hunger strikes, but upheld
withholding of the photographs of Guantanamo prisoners, which had been classified
“secret,” deferring to affidavits that “official public disclosure of such photographs
would both increase the risk of retaliation against the detainees and their families
and exacerbate the detainees’ fears of reprisal, thus reducing the likelihood that
detainees would cooperate in intelligence-gathering efforts.” Associated Press v. U.S.
Dep’t of Defense, 462 F. Supp. 2d 573, 576 (S.D.N.Y. 2006). The outcome highlights
the effect of classification, which is the gateway to deference under Exemption 1. In
the face of any willingness of officials to submit particularized support for claims of
possible harm to national security, even skeptical judges will accommodate
withholdings based on national security.
On March 16, 2007, DoD released the heights and weights of detainees. See U.S.
Dep’t of Def., Measurements of Heights and Weights of Individuals Detained by the
Department of Defense at Guantanamo Bay, Cuba, available at http://www.dod.mil/
pubs/foi/detainees/measurements/index.html.
110

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112

sunset requirement. And once adopted, its contents were a matter of
public record.
During the first years of the “War on Terror,” however, the use of
these provisions remained draped in secrecy. The process by which they
were unveiled displays the interaction among transparency frameworks
that have emerged outside of the constitutional text. Political advocacy by
a network of nongovernmental organizations combined with substantive
litigation to lay the groundwork for a series of invocations of the
Freedom of Information Act. The information disclosed under FOIA in
turn triggered further political pressure, leverage in substantive litigation
and inquiries by the Department of Justice Inspector General. Finally, the
information disclosed in that iteration generated legislative reform and
further institutional oversight.
An initial request in June 2002 from the House Judiciary Committee
for an accounting of the manner in which the Patriot Act’s disputed
provisions had been used was first ignored by the administration. When it
responded in late July, the administration maintained that the answers to
many of the questions involved classified intelligence information, and
provided information only to the House Permanent Select Committee on
113
Intelligence. In August 2002, the ACLU, joined by the Electronic
Privacy Information Center (EPIC) and librarian and bookseller
organizations, filed a series of FOIA requests seeking information
regarding the deployment of Patriot Act powers, including the backup
documents used in preparing the responses that had been withheld from
114
the House Judiciary Committee.
Although the administration nominally granted expedited
processing of the FOIA request, it adopted a not-uncommon gambit of
passive resistance. After a month and a half, officials informed the
requesters that a search for responsive records was still incomplete and
processing of the records had not begun. On October 24, 2002, the
requesters filed suit seeking both processing of their request and
115
disclosure of wrongfully withheld documents. In response to a motion
for a preliminary injunction, the administration agreed to an order

112
Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No.
107-56, § 224, 115 Stat. 272, 295 [hereinafter, the “Patriot Act”]; Prominent
controversy surrounded section 213, authorizing “sneak and peek” warrants; section
214, authorizing the issuance of pen register warrants on reduced standards of cause
and connection to intelligence investigations; section 215, authorizing the issuance of
secret warrants for access to “tangible things” on reduced standards of cause and
connection to intelligence investigations; and section 505, which broadened authority
for the FBI to issue national security letters (NSLs) without judicial authorization,
obligating recipients to turn over consumer financial, telephonic, and electronic
communication records. §§ 213–215, 115 Stat. at 285–88; § 505, 115 Stat. at 365–66.
113
ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 24 (D.D.C. 2003).
114
Id. at 25.
115
Id.

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116

requiring complete processing of the request by January 15, 2003. In
the succeeding months, the administration released 341 pages of
responsive records, from which the plaintiffs determined that the FBI
had deployed judicially unsupervised national security letters (NSLs) in
large numbers, as well as pen register orders issued on less than probable
117
cause.
The documents also suggested that the FBI’s concerns about
possible oversight had some moderating influence on FBI policy
regarding the newly available mechanism. A November 28, 2001
memorandum from the FBI General Counsel commented that:
The USA PATRIOT Act greatly broadened the FBI’s authority to
gather this information. However, the provisions of the Act relating
to NSLs are subject to a ‘sunset’ provision . . . . In deciding whether
or not to re-authorize the broadened authority, Congress certainly
will examine the manner in which the FBI exercised it. . . .
Supervisors should keep this in mind when deciding whether or not
a particular use of NSL authority is appropriate.118
116
Id. In the interim, another D.C. district judge had rebuffed efforts by the
Department of Defense to frustrate EPIC’s FOIA requests regarding the Information
Awareness Office of the Department of Defense and its Director, John Poindexter.
The Defense Department had sought to impose search costs on EPIC on the ground
that EPIC was not a “representative of the news media” under the Freedom of
Information Reform Act of 1986. Elec. Privacy Info. Ctr. v. Dep’t of Def., 241 F. Supp.
2d 5, 5 (D.D.C. 2003).
117
The documents released included both policy documents encouraging the
use of the new surveillance powers and pages of blacked-out documents that
indicated that large numbers of NSLs and pen registers had been utilized, but that
withheld identifying characteristics. ACLU, The Patriot FOIA: The Government’s
Response, http://www.aclu.org/patriot_foia/foia3.html. Some of the documents
disclosed are available at Electronic Privacy Information Center, Freedom of
Information Documents on the USA PATRIOT Act, http://www.epic.org/privacy/
terrorism/usapatriot/foia/.
118
Memorandum from the General Counsel, Nat’l Sec. Law Unit, FBI, to All
Field Offices (Nov. 28, 2001), available at http://www.aclu.org/patriot_foia/FOIA/
Nov2001FBImemo.pdf. Although the names of the individuals who approved the
memorandum were provided, the name of its author was redacted. After he left
government employment, the drafter of the memo, Michael J. Woods, spoke on the
record. Woods was struck by how starkly he misjudged the climate. The FBI
disregarded his warning, and no one noticed:

One thing Woods did not anticipate was then-Attorney General John D.
Ashcroft’s revision of Justice Department guidelines. On May 30, 2002, and Oct.
31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes
and national security threats. He gave overriding priority to preventing attacks by
any means available.
Ashcroft remained bound by Executive Order 12333, which requires the use of
the ‘least intrusive means’ in domestic intelligence investigations. But his new
interpretation came close to upending the mandate. Three times in the new
guidelines, Ashcroft wrote that the FBI “should consider . . . less intrusive means”
but “should not hesitate to use any lawful techniques . . . even if intrusive” when
investigators believe them to be more timely. “This point,” he added, “is to be
particularly observed in investigations relating to terrorist activities.”

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Many documents were withheld or redacted, but the requesters
focused on the effort to obtain aggregate statistical data concerning the
administration’s use of the new Patriot Act surveillance mechanisms. This
119
data had been withheld under FOIA Exemption 1 on the ground that
they were properly classified SECRET and that their release “reasonably
120
could be expected to result in damage to national [] security.”
According to the administration’s affidavits, even an aggregate account of
the number of times particular surveillance authorities had been
deployed “would enable the potential targets of such surveillance to
conduct their intelligence or terrorist activities . . . more securely” by
providing “critical information about whether taking evasive action . . .
would provide a safe harbor from FBI counterintelligence and counter121
terrorism efforts.” By keeping potential terrorists (along with the
public) guessing about how often intrusive and thinly justified
surveillance was deployed, the FBI could make the lives of their targets
122
more uncertain. Notwithstanding the fact that the Foreign Intelligence
Surveillance Act (FISA) required information to be reported to
123
Judge Ellen Segal Huvelle
congressional oversight committees,
concluded that in light of the “special deference” appropriate in
Exemption 1 national security cases, the “agency’s expert judgment” that
the material was properly classified and reasonably related to national
124
security was sufficient to justify refusing disclosure.

Barton Gellman, The FBI’s Secret Scrutiny; In Hunt for Terrorists, Bureau Examines Records
of Ordinary Americans, WASH. POST, Nov. 6, 2005, at A1.
119
See 5 U.S.C. § 552(b)(1) (2000).
120
ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 28 (D.D.C. 2003)
(quotations omitted). A side dispute concerned internal e-mails discussing the
response to the House Judiciary request that had been withheld under Exemption 5.
Judge Huvelle examined the documents in camera and found that they lacked any
segregable factual information that was subject to disclosure. Id. at 34.
121
Id. at 28 (quotations omitted).
122
The principle apparently deployed can be traced back to Bentham’s
Panopticon. As long as a guard could be watching, an inmate is impelled to act as if
surveillance is occurring. The difficulty, of course, is that the same applies to the
public at large.
123
ACLU, 265 F. Supp. 2d at 24 n.7.
124
Id. at 30 & n.11. Three years later, Judge Ronald Whyte rejected analogous
claims that sought to shield the aggregate statistics regarding use of section 213
“sneak and peek” warrants as “law enforcement techniques” that can “reasonably be
expected to risk circumvention of the law.” Gerstein v. U.S. Dep’t of Justice, No. C-0304893 RMW, 2005 U.S. Dist. LEXIS 41276, at *38 (N.D. Cal. Sept. 30, 2005)
(rebuffing claims under Exemption 7). Judge Whyte commented that “the 94 USAOs
have issued only sixty Section 213 warrants. One does not need to be a statistician to
recognize that the predictive value of such a small sample is exceedingly low. [T]he
court finds the notion that criminals will plan illegal activity based on whether a
particular USAO has invoked Section 213 to be dubious.” Id. at *41.
The difference between Gerstein and ACLU v. U.S. Dep’t of Justice could reflect
either a different time, a different judge, or a different treatment of claims that did
not explicitly invoke Exemption 1 classification authority.

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Political controversy regarding the Patriot Act continued, and the
ACLU commenced litigation on another front, returning to the
jurisdiction of the Sixth Circuit, which had earlier warned that
125
“[d]emocracies die behind closed doors.” The ACLU filed Muslim
Community Ass’n v. Ashcroft in Detroit on July 30, 2003 on behalf of a
national coalition of Muslim organizations. The suit challenged section
215 of the Patriot Act, as a violation of both Fourth and First Amendment
126
rights.
For his part, Attorney General Ashcroft launched a cross-country
tour to defend the Patriot Act against criticism and to seek expansion of
surveillance powers. On September 18, 2003, the Attorney General
declassified “the number of times to date that the Department of Justice
. . . has utilized Section 215 of the USA Patriot Act” and anticlimactically
127
revealed that the number was “zero.” Deploying this information, the
administration moved to dismiss Muslim Community Ass’n on October 2,
128
129
2003 as unripe. The motion was set for argument in December 2003.
The ACLU sought, in turn, to use the Ashcroft zero-based
declassification as a lever of its own. On October 23, 2003, ACLU, EPIC,
and the bookseller and librarian coalition renewed their request for
information regarding “any and all records relating to Section 215 of the
USA Patriot Act” and sought expedited processing, alleging that the
Attorney General’s efforts both underscored the need for more
130
information and undercut justifications for withholding information.
In the prior round of FOIA requests, the administration had granted
expedited processing to the coalition’s request as one that “pertain[ed]
to a matter of widespread and exceptional media interest in which there
exists possible questions about the government’s integrity which affect
public confidence,” implicitly acknowledging the controversy
131
surrounding the Patriot Act. This time, amidst its national surge of
125

Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).
Complaint, Muslim Cmty. Ass’n of Ann Arbor v. Ashcroft, No. 03-72913 (E.D.
Mich.
July
30,
2003),
available
at
http://www.aclu.org/FilesPDFs/
complaint%20final%20pdf.pdf. The complaint alleged that in addition to its chilling
effect and substantive privacy violations, section 215’s gag provisions violated the First
Amendment. Id. ¶¶ 156–57. A motion to dismiss was argued in December 2003, and
ultimately denied. Muslim Cmty. Ass’n of Ann Arbor v. Ashcroft, 459 F. Supp. 2d 592,
595, 601 (E.D. Mich. 2006). For pleadings in the case, see ACLU, MCA, et al. v.
Ashcroft and Mueller (July 30, 2003), http://www.aclu.org/safefree/resources/
16821res20030730.html.
127
ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 27 (D.D.C. 2004); see also id.
at 30 (referring to the Attorney General’s “cross country tour”); id. at 31 n.8
(referring to proposals to expand surveillance powers).
128
Defendants’ Motion to Dismiss at 16–19, Muslim Cmty. Ass’n of Ann Arbor v.
Ashcroft, No. 03-72913 (E.D. Mich. Oct. 3, 2003), available at http://www.aclu.org/
section215/gov_motion_100303.pdf.
129
Muslim Cmty. Ass’n of Ann Arbor, 459 F. Supp. 2d at 595.
130
ACLU, 321 F. Supp. 2d at 27.
131
Id. at 32–33 (quoting Plaintiff’s Cross-Motion, Ex. A, Attach. 2).
126

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public advocacy seeking to quell insurgency against the Patriot Act, the
administration determined that there was “no particular urgency to
inform the public” and remitted the requesters to a FOIA queue that
would delay processing for nineteen months, well past the 2004
132
presidential elections.
FOIA, as amended in 1996, provides that expedited processing
should be made available in cases where the requester “demonstrates a
133
compelling need.” FOIA and its implementing regulations provide that
compelling need can be demonstrated by “a person primarily engaged in
disseminating information” who makes a showing of “urgency to inform
134
the public concerning actual or alleged Federal Government activity.”
The DOJ’s implementing regulations also authorize expedited processing
for matters “of widespread and exceptional media interest in which there
exist possible questions about the government’s integrity which affect
135
public confidence.” The administration refused expedited processing
on either ground, denying the existence of current widespread
controversy even as it campaigned to contain it. It also maintained,
132

Id. at 29 n.5, 30. The administration had used similar tactics in responding to
EPIC’s September 2003 request regarding memoranda seeking to enlist U.S.
Attorneys in the surge, by encouraging them to lobby legislators who had voted to
deny funding for the execution of “sneak and peek” warrants authorized by the
Patriot Act. Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 322 F. Supp. 2d 1, 5 (D.D.C
2003) (finding jurisdiction to review the claim, but denying expedited processing).
According to EPIC, “the parties agreed to dismiss their appeals when the DOJ
released the documents EPIC had requested, and the issue of expedited processing
became moot.” Electronic Privacy Information Center, EPIC Litigation Docket,
http://www.epic.org/privacy/litigation; see also Elec. Privacy Info. Ctr. v. Dep’t of
Justice, No. 04-5063, 2004 U.S. App. LEXIS 24617, at *2 (D.C. Cir. Nov. 24, 2004).
133
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No.
104-231, § 8, 110 Stat. 3048, 3051–52 (1996) (codified as amended at 5 U.S.C.
§ 552(a)(6)(E)(i)(I) (2000)).
134
5 U.S.C. § 552(a)(6)(E)(v)(II) (2000); see also 28 C.F.R. § 16.5(d)(1)(ii)
(2006). The existence of a compelling need for information regarding federal
activities is determined by evaluating “(1) whether the request concerns a matter of
current exigency to the American public [and] (2) whether the consequences of
delaying a response would compromise a significant recognized interest.” ACLU, 321
F. Supp. 2d at 29.
135
28 C.F.R. § 16.5(d)(1)(iv) (2006). For both tracks, the existence of public
controversy serves as a gateway to expedited processing. This is another reason that
FOIA is ill-suited to erect barriers to secretive policies at the outset; it is only once a
modicum of information has leaked out through other means and become a matter
of contention in the public sphere, that anything close to real-time disclosure
becomes possible. This also means that FOIA requests are synergistic with other subconstitutional disclosure mechanisms. Leaks from disaffected civil servants or
complaints by victims of policies set the stage for public discussion; independent
media that can report without prior restraint produce controversy. Controversy in
turn provides the predicate for fee waivers and expedited processing. Responses to
FOIA requests, in turn, authenticate and substantiate the leaks.
As the possibility of disseminating information worldwide on the Internet
becomes more and more available, the “media” exception will come under
definitional pressure from bloggers and others.

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through what was later characterized as “administrative error,” that the
requesters were not entitled to media treatment, notwithstanding the
recent and un-appealed determination that EPIC was a media entity for
136
FOIA purposes.
In December 2003, the coalition filed ACLU v.
Department of Justice in D.C. District Court, seeking to require responses to
its requests.
On May 10, 2004, Judge Huvelle, who had adjudicated the initial
Patriot Act FOIA action, proved unsympathetic to the denial of expedited
consideration. She reviewed the “ongoing debate regarding the renewal
and/or amendment of the Patriot Act,” newspaper articles submitted by
the requesters, which manifested widespread public concern (e.g., the
“many resolutions passed by local and state governments urging Congress
to narrow the provisions of the Patriot Act”), as well as the Attorney
General’s Patriot Act tour and his zero-based declassification to counter
criticism and restore “public confidence in law enforcement.” She
concluded that the administration erred in determining that the
137
statutory prerequisite of “urgency to inform the public” was lacking.
Judge Huvelle was more biting in her response to the
administration’s volte-face on the question of whether Patriot Act usage
was a matter of “widespread and exceptional media interest” going to
138
“possible questions about the government’s integrity.” Judge Huvelle
found “absolutely no justification for reversal,” characterizing the
government position as turning “a blind eye to the flurry of media
139
attention” and “a deaf ear to the Attorney General[].” Denial of
expedited processing, she held, “fails to pass the reasonableness test,”
and ordered that the parties convene on May 20, 2004 to establish dates
140
for production of documents.
On May 19, 2004, the administration submitted an extraordinarily
obscurely worded letter in Muslim Community Ass’n (pending in
Michigan) reiterating its earlier representations in the case that section
215 had not been invoked between July 1, 2003 and September 18, 2003.
Administration attorneys intimated that a classified report about to be
136

ACLU, 321 F. Supp. 2d at 29 n.5; see also Elec. Privacy Info. Ctr., 241 F. Supp. 2d
at 11 (holding in a FOIA action that EPIC is a “representative of the news media”
because it “gathers information of potential interest to a segment of the public, uses
its editorial skills to turn the raw material into a distinct work, and distributes that
work to an audience” (citation and quotation marks omitted)).
137
ACLU, 321 F. Supp. 2d at 29.
138
Id. at 32.
139
Id. at 32–33.
140
Id. at 31, 38. Judge Huvelle again sustained the administration’s national
security claim to withhold aggregate statistics under Exemption 1, however,
notwithstanding the Attorney General’s selective declassification. Given the “binding
precedent” in CNSS, and its acceptance of the “mosaic theory,” Judge Huvelle
deferred to claims that such statistics “could signal to targets of investigations that it is
comparatively safe to conduct certain operations . . . . This Circuit’s law constrains the
Court to conclude that the government’s explanation is sufficiently detailed and
persuasive . . . .” Id. at 35–38.

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filed with the House and Senate Judiciary Committees, pursuant to the
FISA requirements, could reveal uses of section 215, but maintained that
those uses “fall outside of the time period encompassed by plaintiffs’
141
factual allegations.”
Judge Huvelle’s ACLU v. DOJ order resulted in a tender of
documents to the ACLU/EPIC coalition on June 17, 2004 which
revealed, among other things, that the FBI had in fact sought and
obtained surveillance orders under section 215 less than a month after
the Attorney General announced that the authority had never been used,
and less than two weeks after administration lawyers had made similar
142
representations in Michigan in Muslim Community Ass’n. Two days later,
the ACLU submitted those documents to the trial judge in Muslim
Community Ass’n, along with a letter objecting to the administration’s
implicit misrepresentation in arguing that the case was “unripe” because
143
section 215 rested unused.
Amidst this maneuvering, another aspect of the Patriot Act—its
authorization of the broad use of warrantless NSLs—began to emerge
into public contention. In January of 2004, “[i]ndustry sources” were
quoted by a Las Vegas newspaper as revealing that the FBI had used NSLs
to obtain records on 270,000 visitors to Las Vegas from casino operators
144
and hotels in late 2003 and early 2004 during an “elevated” threat level.
According to these reports—which were not entirely accurate—what
145
happened in Las Vegas now stayed in an FBI database.
141
Letter from Joseph W. LoBue, Senior Trial Counsel, Civil Division, U.S. Dep’t
of Justice, to Hon. Denise Page Hood, U.S. Dist Judge, E.D. Mich. (May 19, 2004),
available at http://www.aclu.org/section215/gov_hood_051904.pdf.
142
Gail Appleson, FBI Asked for Secret USA Patriot Act Searches, HOUS. CHRON., June
18, 2004, at A6 (“Last September, at a time when the section was drawing widespread
criticism from librarians, booksellers and civil rights groups, U.S. Attorney General
John Ashcroft said the power had never been used. Records obtained by the ACLU
show that the FBI asked for permission to use the law a few weeks later.”).
143
Plaintiffs’ Response to Defendants’ Letter of May 19, Muslim Cmty. Ass’n of
Ann Arbor v. Ashcroft, No. 03-72913 (E.D. Mich. June 17, 2004), available at
http://www.aclu.org/section215/aclu_letter_hood_061704.pdf.
Subsequent disclosures of documents regarding section 215 occurred in July
2004. See Elec. Privacy Info. Ctr., Freedom of Information Documents on the USA
Patriot Act, http://www.epic.org/privacy/terrorism/usapatriot/foia/ (reproducing
documents); ACLU, PATRIOT FOIA, http://www.aclu.org/safefree/patriot/
17497res20040810.html (reproducing documents). The case before Judge Huvelle
was ultimately settled in August 2004, with the tender of additional documents,
including a copy of the procedural rules of the Foreign Intelligence Surveillance
Court. Id.
144
Rod Smith, Sources: FBI Gathered Visitor Information Only in Las Vegas,
LAS VEGAS REV. J., Jan. 7, 2004, at 1A (“Casino operators said they turned over the
names and other guest information on an estimated 270,000 visitors after a meeting
with FBI officials and after receiving [NSLs] requiring them to yield the
information.”).
145
FBI Chief Counsel Valerie Caproni has stated that NSLs did not actually call
for most of the hotel records. Comments of Valerie Caproni, FBI Chief Counsel,

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In early April 2004, the FBI served the president of a small Internet
access and consulting business with a NSL which required him to turn
over records on one of his clients and “‘further advised’ [him] that §
2709(c) prohibited him, or his officers, agents, or employees, ‘from
disclosing to any person that the FBI has sought or obtained access to
information or records under these provisions,” ordering that he not
146
“even mention the NSL in any telephone conversation.”
Notwithstanding the prohibition on disclosure, the internet service
provider (ISP) president contacted the ACLU. ACLU attorneys filed suit,
captioned Doe v. Ashcroft, under seal in the Southern District of New York
147
challenging both the underlying NSL and the gag order. It was three
weeks before the ACLU obtained an order allowing it to publicly disclose
that the suit had been filed. Alongside the substantive disputes, the
ACLU and the administration fought a running battle over the
administration’s continued efforts to keep details of the NSLs and the
148
litigation from public view.
Lewis & Clark Law School Symposium on “Crime and the War on Terror” (Apr. 20,
2007), available at http://lawlib.lclark.edu/podcast/?p=203; E-mail from Valerie
Caproni to Seth Kreimer (June 6, 2007) (on file with author). Ms. Caproni’s account
is substantiated by OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, A REVIEW OF
THE FEDERAL BUREAU OF INVESTIGATION’S USE OF NATIONAL SECURITY LETTERS (Mar.
2007), available at http://www.usdoj.gov/oig/special/s0703b/final.pdf [hereinafter
OIG NSL Report], which reports a total of 39,000 NSL requests for the year 2003. Id.
at xvi. Since each account sought constitutes a separate “request,” the OIG report
refutes the possibility that 270,000 hotel records were obtained in 2003. Id. at xvi.
Apparently the disclosure of 270,000 records resulted from grand jury subpoenas
and “voluntary” cooperation. Ms.Caproni also stated that the Las Vegas material was
kept in a separate computer database and purged once the investigation ended. Email from Valerie Caproni, supra.
146
Doe v. Ashcroft, 334 F. Supp. 2d 471, 475, 479 (S.D.N.Y. 2004); see Editorial,
My National Security Letter Gag Order, WASH. POST, Mar. 23, 2007, at A17.
147
334 F. Supp. 2d 471; see Motion For Leave to File Case Under Seal, Doe v.
Ashcroft, 317 F. Supp. 2d 488 (S.D.N.Y. 2004) (No. 04-2614), available at
http://www.aclu.org/FilesPDFs/motion%20for%20leave%20in%20aclu%20v.%20as
hcroft.pdf.
148
See Doe v. Ashcroft, 317 F. Supp. 2d 488, 490, 492 (S.D.N.Y. 2004) (granting
motion to partially unseal, describing administration request “that the ACLU remove
the briefing schedule from its website,” establishing a “procedure by which those
disputes can be resolved,” and putting “the burden on the Government to quickly
justify each particular redaction under the exacting First Amendment standards
applicable”); ACLU, Government Gag Exposed, http://www.aclu.org/safefree/
patriot/18491res20040819.html (disclosing unsealed documents).
The most ironic administration initiative was the effort to withhold from public
view, as a danger to national security, a segment of an ACLU brief in the case quoting
from United States v. U.S. District Court for the Eastern District of Michigan (Keith), 407 U.S.
297, 314 (1972). The segment reads: “The danger to political dissent is acute where
the Government attempts to act under so vague a concept as the power to protect
‘domestic security.’ Given the difficulty of defining the domestic security interest, the
danger of abuse in acting to protect that interest becomes apparent.” See Letter from
Ann Beeson, ACLU, to Hon. Victor Marrero, U.S. Dist. Judge (May 14, 2004),
available at http://www.aclu.org/nsl/gagorder/acluLetter_051404.pdf; see also Dan

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On September 29, 2004, Judge Victor Marrero held the Patriot Act’s
authorization of the promiscuous use of NSLs in national security
149
Quoting the Supreme
investigations unconstitutional as applied.
Court’s recent Hamdi decision that “a state of war is not a blank check for
150
the President when it comes to the rights of the nation’s citizens,” he
held that the Patriot Act authority to issue NSLs lacked the “procedural
protections necessary to vindicate constitutional rights,” since the statute
both provided no mechanism for challenging the letters in court and
affirmatively barred recipients from disclosing their existence even to
151
attorneys. In rejecting the administration’s contention that the rules
invoked by the FBI were merely hortatory, and therefore infringed on no
cognizable legal rights, Judge Marrero made reference to the
information that had emerged in the ACLU’s earlier Patriot Act FOIA
request to support the conclusion that the commands of the NSLs
152
functioned to effectively coerce recipients.
On First Amendment grounds, Judge Marrero invalidated the
provision prohibiting disclosure by the recipients of the letters. He
acknowledged that cases supported the proposition that “the
Government should be accorded a due measure of deference when it
asserts that secrecy is necessary for national security purposes in a
153
particular situation involving particular persons at a particular time.” He
rejected, however, the claim that those principles permitted a statute to
154
“impose perpetual secrecy upon an entire category of future cases.”
Eggen, U.S. Uses Secret Evidence in Secrecy Fight with ACLU, WASH. POST, Aug. 20, 2004, at
A17.
149
Doe, 334 F. Supp. 2d at 526–27 (S.D.N.Y. 2004).
150
Id. at 477. Judge Marrero also set the stage by reiterating his own resolve “to
exert particular vigilance to safeguard against excess committed in the name of
expediency, to ensure that Americans do not succeed where the terrorists failed,
inflicting by their own hand the deeper wrongs to the nation’s essence that the
September 11 external attacks upon physical structures and innocent people were
unable to realize.” Id. at 478 n.7 (citation omitted).
151
Id. at 494, 506.
152
Id. at 502 (“The ACLU obtained, via the Freedom of Information Act
(‘FOIA’), and presented to the Court in this proceeding, a document listing all the
NSLs the Government issued from October 2001 through January 2003. Although the
entire substance of the document is redacted, it is apparent that hundreds of NSL
requests were made during that period. . . . The evidence suggests that, until now,
none of those NSLs was ever challenged in any court. First, the Department of Justice
explicitly informed the House Judiciary Committee in May 2003 that there had been
no challenges to the propriety or legality of any NSLs. Second, the Government’s
evidence in this case conspicuously lacks any suggestion either that the Government
has ever had to resort to a judicial enforcement proceeding for any NSL, or that any
recipient has ever resisted an NSL request in such a proceeding or via any motion to
quash.”).
153
Id. at 524 (emphasis in original).
154
Id. He quoted with approval the Sixth Circuit’s conclusion in Detroit Free Press:
“The Government could use its ‘mosaic intelligence’ argument as a justification to . . .
operate in virtual secrecy in all matters dealing, even remotely with ‘national
security,’ resulting in a wholesale suspension of First Amendment rights.” Id. at 524

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Political debate regarding the NSL process continued through the
presidential election. After the election, another client approached the
ACLU to challenge a gag order accompanying the issuance of an NSL to
a library consortium. Filed on August 9, 2005 as Doe v. Gonzales to avoid
violating the statutory gag order, the case identified the plaintiff as a
“member of the American Library Association” who had been served with
an NSL seeking “subscriber information, billing information and access
155
Although Doe had refused to comply with the NSL, no
logs.”
enforcement proceeding had been brought. The anonymous librarian
sought a preliminary injunction to allow him to participate in pending
debate on the Patriot Act by publicly identifying himself as a recipient of
156
an NSL.
Judge Janet Hall’s opinion in Doe v. Gonzales, issued September 9,
2005, began its discussion of the government’s interest in using NSL gag
157
She
orders by citing Hamdi and Judge Tatel’s dissent in CNSS.
concluded that the statutory gag language included in the NSL
functioned as a prior restraint and was insufficiently justified to comply
with First Amendment protections: “Nothing specific about this
investigation has been put before the court that supports the conclusion
that revealing Doe’s identity will harm it. The record supplied by the
defendants suggests that the disclosure of Doe’s identity ‘may’ or ‘could’
harm investigations related to national security generally. . . . Just such a
speculative record has been rejected in the past by the Supreme Court in
158
the context of a claim of national security.” Judge Hall concluded by
issuing the requested injunction allowing Doe to come out as a recipient
of an NSL; she stayed the order temporarily to allow the administration
to seek a further stay from the Second Circuit. On September 20, 2005,
the Court of Appeals granted the Government’s motion to stay Judge
Hall’s order, but the case swiftly became less anonymous when court

n.256 (quoting Detroit Free Press v. Ashcroft, 303 F. 3d 681, 709 (6th Cir. 2002)). He
also noted,
In general, as our sunshine laws and judicial doctrine attest, democracy abhors
undue secrecy, in recognition that public knowledge secures freedom. Hence, an
unlimited government warrant to conceal, effectively a form of secrecy per se, has
no place in our open society. Such a claim is especially inimical to democratic
values for reasons borne out by painful experience.

Id. at 519–20.
155
Doe v. Gonzales, 386 F. Supp. 2d 66, 70 (D. Conn. 2005).
156
Id.
157
Id. at 76.
158
Id. at 76–77 (citing Pentagon Papers Case, N.Y. Times v. United States, 403
U.S. 713, 725–26 (1971) (Brennan, J., concurring)). Judge Hall continued, “Further,
the information that is before the court suggests strongly that revealing Doe’s identity
will not harm the investigation. SEALED MATERIAL CLASSIFIED MATERIAL.” Id. at
77. “The court asked the defendants’ counsel at oral argument if he could confirm
there was a ‘mosaic’ in this case: were there other bits of information which, when
coupled with Doe’s identity, would hinder this investigation. Counsel did not do so.”
Id. at 78.

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personnel neglected to redact the name of the plaintiff from the
159
caption. Notwithstanding this breach in the now notional security, on
160
October 7, 2005, Justice Ginsburg declined to lift the stay.
As the sunset date of the Patriot Act approached, further disclosures
emerged. On the basis of leaks from “government sources,” the
Washington Post disclosed that, utilizing the Patriot Act’s lenient
procedures, the FBI annually issued 30,000 NSLs, “a hundredfold
161
increase over historic norms.” It also made public the “unannounced
decisions” to reverse policy and retain all records on innocent individuals
and companies once investigations are closed, while making government
data banks available to “state, local, and tribal” governments and “private
162
sector entities.”
In March 2005, EPIC had filed a FOIA request seeking further
information from the Department of Justice regarding the use of the
163
The FBI officially granted a request for expedited
Patriot Act.
164
processing, apparently recognizing that administration attorneys had
argued ineffectually before Judge Huvelle that the earlier Patriot Act
165
request was not a matter of public urgency. Still, the request languished
in informal limbo, and EPIC filed an action to compel disclosures in
April 2005 and a motion to compel the effectuation of the expedited
processing on June 14, 2005 before Judge Gladys Kessler, who had earlier
ordered the CNSS disclosures at the trial level. In late October, as a status
159
“[T]he parties learned that, through inadvertence, Doe’s identity had been
publicly available for several days on the District Court’s Web site and on PACER, the
electronic docket system run by the Administrative Office of the United States Courts.
. . . The parties also learned that the media had correctly reported Doe’s identity on
at least one occasion.” Doe v. Gonzales, 127 S. Ct. 1, 4 (2006) (citing Alison Leigh
Cowan, Librarians Must Stay Silent in USA Patriot Act Suit, Court Says, N. Y. TIMES, Sept.
21, 2005, at B2).
The Cowan article states,

“Though the plaintiffs’ organization has not been named in the various
proceedings, a close reading of the court record suggests that it is Library
Connection in Windsor, Conn. A search of a court-operated Web site offered a
pointer to the plaintiffs’ identity. There, a case numbered 3:2005cv01256 is listed
under the caption, ‘Library Connection Inc. v. Attorney General.’”

Id.
160

Doe, 127 S. Ct. at 5.
Gellman, supra note 118. By “comparing unsealed portions of the file” in the
case with “public records” and “information gleaned” from investigation, the article
also identified George Christian as the “John Doe” librarian plaintiff in Doe v.
Gonzales. Id.
162
Id.
163
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, Civil Action No. 05-845 (GK),
2005 U.S. Dist. LEXIS 40318, at *1 (D.D.C. Nov. 16, 2005); see also Elec. Privacy Info.
Ctr., Freedom of Information Documents on the USA PATRIOT Act,
http://www.epic.org/privacy/terrorism/usapatriot/foia/ (reproducing request and
subsequent responses).
164
Elec. Privacy Info. Ctr., 2005 U.S. Dist. LEXIS 40318, at *1.
165
See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 33 (D D.C. 2004).
161

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conference before Judge Kessler loomed, the FBI released a small set of
documents, among which were items indicating that the FBI had
“investigated hundreds of potential violations related to its use of secret
surveillance operations,” and had identified “at least a dozen violations of
166
federal law or bureau policy from 2002 to 2004.” Judge Kessler found
the government’s response to be inadequate, commenting that the
administration had released an “incredibly small amount of pages,” and
concluding that the administration’s efforts “have been unnecessarily
167
slow and inefficient.” She set a mandatory schedule for the processing
168
and release of documents, and another set of documents was released
in December 2005, identifying further violations and triggering an
investigation by the Office of the Inspector General of the Department of
169
Justice. The December release immediately preceded the December 16,
170
2005 decision in the Senate to block renewal of the Patriot Act.

166
Elec. Privacy Info. Ctr., 2005 U.S. Dist. LEXIS 40318, at *4 n.2 (reporting that as
of a status conference held November 8, 2005, 250 pages had been released); Dan
Eggen, FBI Papers Indicate Intelligence Violations; Secret Surveillance Lacked Oversight,
WASH. POST, Oct. 24, 2005, at A1 (reporting “hundreds of potential violations”); Eric
Lichtblau, Tighter Oversight of F.B.I. Is Urged After Investigation Lapses, N.Y. TIMES, Oct.
25, 2005, at A16 (reporting “at least a dozen” violations based on documents received
by EPIC, and noting that “the bureau said on Monday that internal reviews had
identified 113 violations since last year that were referred to a federal intelligence
board”); Elec. Privacy Info. Ctr., supra note 163 (identifying documents disclosed in
October).
167
Elec. Privacy Info. Ctr., 2005 U.S. Dist. LEXIS 40318, at *4.
168
Id. at *5.
169
Eric Lichtblau, At F.B.I., Frustration Over Limits on an Antiterror Law, N.Y. TIMES,
Dec. 11, 2005, at 48 (noting evidence in EPIC documents that the Justice
Department’s Office of Intelligence Policy and Review had been criticized internally
for being too protective of civil liberties, and that there had thus been efforts to
“bypass” that office); Eric Lichtblau, Justice Dept. Report Cites Intelligence-Rule Violations
by F.B.I., N.Y. TIMES, Mar. 9, 2006, at A21 (“The inspector general’s review grew out of
documents, dealing with intelligence violations, that were released last year under a
Freedom of Information Act request by the Electronic Privacy Information Center
. . . . The inspector general then obtained more documents on violations and
included an 11-page analysis of the problem as part of a broader report Wednesday
on counterterrorism measures.”); OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF
JUSTICE, REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA
PATRIOT ACT 20–30 (Mar. 2006), available at http://www.usdoj.gov/oig/special/
s0603/final.pdf.
EPIC filed another request for reports submitted by the FBI Intelligence
Oversight Board, which resulted in the release of more documents. EPIC, Litigation
Docket, http://www.epic.org/privacy/litigation/ (discussing EPIC v. U.S. Dep’t of
Justice, No. 06-00029 (D.D.C. filed Jan 10, 2006)). The Inspector General apparently
obtained an un-redacted set of the reports, which were used in its analysis. OFFICE OF
THE INSPECTOR GENERAL, supra.
170
Claims of causation are muddied by the contemporaneous publication of the
existence of illegal NSA surveillance programs by the New York Times, see James
Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16,
2005, at A1, as well as by disclosures that the Defense Department had engaged in
aggressive surveillance of domestic dissenters, see Walter Pincus, Defense Facilities Pass

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In March 2006, after nearly expiring, the sunsetted Patriot Act
171
provisions were finally renewed until December 31, 2009. But Congress
imposed modifications. Among other things, the revised authority for
NSLs explicitly allows recipients of letters to contact attorneys and to
challenge the letters in court, and sets limitations on their scope and the
172
In May 2005, the
procedure by which gag orders are issued.
administration conceded in Doe v. Gonzales, the semi-secret Library
Connection case, that the librarian could reveal his identity and the
173
Second Circuit dismissed the appeal as moot. The administration then
174
withdrew the NSL.
The still-anonymous ISP owner in the case before Judge Marrero
remained under gag order. The changed legal landscape persuaded the
Second Circuit to vacate Judge Marrero’s order enjoining the
enforcement of the NSL against the ISP, and remand the case so that the
trial court “can address the First Amendment issues presented by the
175
revised version.” On remand, Judge Marerro invalidated the gag order
176
under the revised statute, but stayed his decision pending appeal.
In September 2006, the long-gestating opinion in Muslim Community
Ass’n of Ann Arbor v. Ashcroft was issued, denying the administration’s
177
motion to dismiss on ripeness and standing grounds. The ACLU,

Along Reports of Suspicious Activity; ‘Raw Information’ From Military, Civilians Is Given to
Pentagon, WASH. POST, Dec. 11, 2005, at A12; Lisa Myers et al., Is the Pentagon Spying on
Americans?, MSNBC.COM, Dec. 14, 2005, http://www.msnbc.msn.com/id/10454316.
171
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.
109–177, § 102, 120 Stat. 192, 195 (2006).
172
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.
109–177, § 115, 120 Stat. at 211–13 (allowing judicial review); § 116, 120 Stat. at 213–
17 (restricting the scope of nondisclosure orders).
173
Doe I v. Gonzales, 449 F.3d 415, 420–21 (2d Cir. 2006). The court refused the
administration’s request for a vacatur without substantial comment. Judge
Cardamone’s concurrence was more emphatic:
To me, the government’s request for vacatur in the Connecticut case is not
surprising, but right in line with the pervasive climate of secrecy. It sought to
prevent, through § 2709(c), the Doe plaintiffs from ever revealing that they were
subjects of an NSL, effectively keeping that fact secret forever. Then, by
requesting vacatur of the decision below, the government attempts to purge
from the public record the fact that it had tried and failed to silence the
Connecticut plaintiffs.

Id. at 423.
174
Press Release, ACLU, Government Drops Demand for Library Records (June
26, 2006), available at http://www.aclu.org/safefree/nationalsecurityletters/
25997prs20060626.html; see also Press Release, ACLU, Supreme Court Unseals
Documents in USA Patriot Act Case (Aug. 3, 2006), available at http://www.aclu.org/
safefree/nationalsecurityletters/26379prs20060803.html.
175
Doe I, 449 F.3d at 419.
176
Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007); see Editorial, My
National Security Letter Gag Order, WASH. POST, Mar. 23, 2007, at A17.
177
459 F. Supp. 2d 592, 601-02 (E.D. Mich. 2006).

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protecting its own victory from reversal, dismissed the action a month
178
later.
The Patriot Act renewal imposed new obligations of transparency. In
addition to requiring reports to congressional committees on the use of
179
NSLs, section 215, and data mining activities, the Reauthorization Act
mandated that the Department of Justice’s Inspector General conduct a
series of audits of “the effectiveness and use, including any improper or
illegal use,” of NSLs and section 215 orders issued and obtained by the
180
Department.
181
The first iteration of audits was published in March 2007. The
audit of section 215 usage revealed precisely the information that the
administration had argued between 2002 and 2004 would endanger
national security, by providing “‘critical information’ about whether
taking evasive actions . . . would provide a safe harbor from FBI
182
counterintelligence and counter-terrorism efforts.” As it turns out,
section 215 authority has as yet become neither a broad threat to privacy
nor a menace to terrorists. The authority generated no FISA orders

178
ACLU Withdraws Lawsuit Challenging Patriot Act, WASH. POST., Oct. 29, 2006, at
A10 (“The ACLU said Friday it is withdrawing the lawsuit because of ‘improvements
to the law.’”).
179
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.
109–177, § 106(h), 120 Stat. 192, 199–200 (2006) (enacting reporting requirements
for section 215 orders); § 108, 120 Stat. at 203–04 (enacting reporting requirements
for “multipoint electronic surveillance”); § 109, 120 Stat. at 204–05 (enacting
reporting requirements for pen registers and physical searches); § 118, 120 Stat. at
217–18 (requiring that reports on NSLs be submitted to the Committee on the
Judiciary, the Committee on Financial Services, and the Permanent Select Committee
on Intelligence of the House of Representatives, and the Committee on the Judiciary,
the Committee on Banking, Housing, and Urban Affairs, and the Select Committee
on Intelligence of the Senate); § 126, 120 Stat. at 227–28 (requiring reports on data
mining activities).
180
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.
109–177, § 106A, 120 Stat. at 200–02 (requiring audits of the use of section 215); §
119, 120 Stat. at 219–21 (requiring audits of the use of NSLs). In addition to the fact
that the Inspector General has proven willing to exercise independent judgment in
other areas of the “War on Terror,” congressional experience with unadorned
reporting obligations has been decidedly mixed. See Gellman, supra note 118
(recounting the 2004 requirement of report on the “scope of” NSLs, and reporting
that the “process and standards for approving them” had gone “[m]ore than a year
. . . without a Justice Department reply” (quotation marks omitted)).
181
OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, A REVIEW OF THE FEDERAL
BUREAU OF INVESTIGATION’S USE OF SECTION 215 ORDERS FOR BUSINESS RECORDS (Mar.
2007), available at http://www.usdoj.gov/oig/special/s0703a/final.pdf [hereinafter
OIG 215 Report].
182
ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 28 (D.D.C. 2003). The
report did redact some information regarding whether the targets of investigation
were U.S. persons, and the details of the deployments. See generally OIG 215 Report,
supra note 181, at 19–22.

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during either 2002 or 2003, seven orders during 2004, and fourteen
183
during 2005.
The FISA court never denied a section 215 order. But the OIG audit
identified thirty-one instances in which the FBI began the process of
seeking a section 215 order, and then abandoned the effort. These cases
highlight the impact of review from the chain of attorneys running from
the FBI General Counsel’s National Security Law Branch (NSLB), which
was required to approve applications, through the Office of Intelligence
Policy Review (OIPR), which then approved and submitted applications
184
Many details regarding these “withdrawn”
to the FISA court.
applications were redacted, but apparently applications for FISA warrants
185
for library records were withdrawn on more than one occasion. In one
of these cases, an NSLB supervisor blocked the effort to seek a section
215 order for library records “because of the political controversy
186
surrounding section 215 requests from libraries.” However, as the
report tantalizingly put the outcome, “Once the field office was advised
that NSLB would not send the application to OIPR, the field office
187
sought [REDACTED] and eventually obtained [REDACTED].”
The report on NSLs was more sobering. As it turns out, the figure of
188
30,000 annual NSLs which had leaked in 2005 represented less than
half of the actual usage. According to the 2007 OIG audit, the actual
189
number of NSL requests in 2004 was closer to 65,000. Reporting of the
183
OIG 215 Report, supra note 181, at 19 tbl.3.1; see also id. at xxii (“We found no
instance where the information obtained from a section 215 order resulted in a major
case development such as the disruption of a terrorist plot.”); id. at 74 & n.90
(reporting that some field agents viewed section 215 as a “tool of last resort,” while an
OIPR attorney believed “nothing would be lost” if the authority were repealed).
During 2005, in addition, the FISA court issued 141 orders under section 215 which
were used to obtain subscriber information associated with numbers identified by
trap and trace orders directed to telecommunications companies. Id. at vi, vi n.9, 35
(identifying “combination” orders seeking associated information, and noting that
the Reauthorization Act rendered such orders unnecessary by allowing trap and trace
orders to access the data).
184
Id. at 23.
185
Id. at 24 (“FBI field offices sought but did not obtain section 215 orders for
library records on [REDACTED] occasions”). The report also identified situations in
which OIPR refused to seek university records because it viewed them as being
protected from disclosure by the Buckley Amendment. Id. at 29–33.
186
Id. at 28.
187
Id. at 28.
188
Gellman, supra note 118, at A1.
189
OIG NSL Report, supra note 145, at xix chart 4.1. The report revealed that
official records for 2004 reported 56,507 NSL requests and 47,221 in 2005. Id.
Moreover, an audit of FBI case files indicated that 17% more NSLs were issued than
were reported. Id. at xvi. In addition, the OIG report estimated that roughly 6% of
the properly docketed requests were actually not incorporated into the figures
reported to Congress because of delays and incorrect data entries. Id. at xvii. Taken
together, this information suggests that over 65,000 NSLs (17% more than 56,507)
were actually issued in 2004. The audit was hampered because “an unknown amount
of data . . . was lost from the OGC data base when it malfunctioned.” Id.; cf. Padilla

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190

letters was slipshod, and supervision was haphazard. Previous classified
reports required by Congress had substantially understated the number
of NSLs issued because of delays and mistakes, and public reports had
191
understated numbers because of creative use of definitions. A random
audit of seventy-seven investigative files revealed twenty-two possible
192
violations of law and policy regarding NSLs. The audit also delicately
presented the “Noteworthy Fact” that “no clear guidance was given to FBI
agents on how to reconcile the limitations expressed in the Attorney
General Guidelines, which reflect concerns about the impact on privacy
of FBI collection techniques, with the expansive authorities in the NSL
193
statutes.”

Evidence Missing, Feds Say, CBSNEWS.COM, Mar. 9, 2007, http://www.cbsnews.com/
stories/2007/03/09/terror/main2554265.shtml.
190
See OIG NSL Report, supra note 145, at xiv–xv (noting that there was “no
policy or directive requiring retention of signed copies of national security letters”).
191
Id. at xvii (reporting that 4,600 NSL requests were not reported to Congress
because of delays in reporting, and that the March 2006 FBI reported to Congress
that data in reports “may not have been accurate”); id. at xix (“The number of NSL
requests we identified significantly exceeds the number reported in Department’s
first public annual report . . . .”); id. (reporting that the OIG identified 47,221
requests in 2005, whereas the FBI had identified only 9,254 requests).
192
Id. at xxxi. Twenty-two violations were identified in a review of 293 NSLs. Id.
Especially troubling was the misuse of “exigent letters,” which misrepresented the
circumstances of their issuance. Id. at xxxiv. Projecting this out to the 44,000 NSLs
issued during 2003 to 2005, see id. at xx chart l.1, this suggests at least 4,000
violations. And these are only the violations that are revealed by a file review. This is
to be contrasted with a total of twenty-six instances during the period 2003 to 2005 in
which the FBI voluntarily reported possible violations to the Intelligence Oversight
Board (IOB). Id. at xxix. Of course, the IOB’s only authority is to report violations to
the President, who has not in the past proven overly fastidious about violations of law
in the pursuit of terrorists.
It appears that some of these issues had been raised internally and suppressed.
Edmund L. Andrews, Official Alerted F.B.I. to Rules Abuse 2 Years Ago, N.Y. TIMES, Mar.
19, 2007, at A10; R. Jeffrey Smith & John Solomon, Amid Concerns, FBI Lapses Went On,
WASH. POST, Mar. 18, 2007, at A1 (“Bassem Youssef, who currently heads the CAU,
raised concerns about the tardy legal justifications shortly after he was assigned to the
job in early 2005.”)
193
OIG NSL REPORT, supra note 145, at xli–xlii. The report noted as well that
there is no requirement to purge databases when an investigation proves a target’s
innocence. “[O]nce information is obtained in response to a [NSL], it is indefinitely
retained and retrievable by the many authorized personnel who have access to various
FBI databases.” Id.
Leaks in January of 2007 also revealed that the Defense Department and CIA
investigators generated their own stock of information through judicially
unsupervised and congressionally unauthorized NSLs. Eric Lichtblau & Mark
Mazzetti, Military Expands Intelligence Role in U.S., N.Y. TIMES, Jan. 14, 2007, at A1 (“[I]t
was not previously known, even to some senior counterterrorism officials, that the
Pentagon and the Central Intelligence Agency have been using their own
‘noncompulsory’ versions of the letters. Congress has rejected several attempts by the
two agencies since 2001 for authority to issue mandatory letters, in part because of
concerns about the dangers of expanding their role in domestic spying.”)

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The report provided one muted note of consolation for civil
libertarians. Given the fact that each account accessed was treated as a
separate “request,” the order of magnitude of the NSL “requests”
reported gives some assurance that NSLs are not being used to generate
material for massive data mining programs. Since an effective data
mining effort would review hundreds of thousands or millions of records,
the fact that the FBI reviews less than 70,000 accounts per year confirms
that the NSLs have not been put to such uses. The new bottom-line
reporting regulations provide an ongoing check on a temptation to use
194
NSLs for data mining.
The Inspector General’s report has in turn precipitated another
round of FOIA requests regarding NSLs, as well as further oversight
195
hearings from the now-opposition controlled Congress. The FBI in
turn has instituted an internal investigation and has issued new
196
guidelines designed to discipline the use of NSLs.
C. Transparency and Torture: Democracy and the Problem of “Unknown
Unknowns”

The “dark side” of the “War on Terror” was nowhere more
prominent than in the use of brutally coercive methods against suspected
opponents by an administration that kept its methods secret and publicly
disavowed “torture.” This divergence between word and deed may have
arisen out of the involuntary homage of vice to virtue. It owed its source
in part to the not-unprecedented belief that sufficient secrecy could
197
impart legal impunity. And it rested in part on the political calculation
194

I thank Valerie Caproni for this insight, but note that recent FOIA disclosures
reveal that FBI NSLs have in the past demanded revelation of the “community of
interest” of particular callers, which substantially broadens their scope. See Eric
Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, N.Y. TIMES, Sept. 9, 2007, at
A1, available at http://www.nytimes.com/2007/09/09/washington/09fbi.html
(describing NSLs calling for “which people the targets called most frequently, how
long they generally talked and at what times of day,” regarding “people and phone
numbers ‘once removed’ from the actual target of the national security letters”). This
tactic has apparently been suspended. See id.
195
Ellen Nakashima, FBI Gets Six Years for FOIA Request, WASH. POST, Apr. 11,
2007, at A13 (describing FOIA request for NSL information, and earlier request
regarding Investigative Data Warehouse); Elec. Frontier Found. v. Dep’t of Justice,
No. 07-0656 (JDB) (D.D.C. June 15, 2007), available at http://www.eff.org/flag/nsl/
bates_order.pdf (setting a deadline for response to NSL FOIA request, and ordering
FBI to process 2,500 pages of documents every thirty days.).
196
Lara Jakes Jordan, FBI Drafts Rules to Curb Privacy Abuse,
June
14,
2007,
http://www.washingtonpost.com/
WASHINGTONPOST.COM,
wp-dyn/content/article/2007/06/14/AR2007061400767.html.
197
Letter from John Ashcroft, Att’y Gen., to President George W. Bush (Feb. 1,
2002), reprinted in MARK DANNER, TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE
WAR ON TERROR 92 (2004) (arguing that the presidential determination would allow
the use of forward leaning methods of interrogation, while minimizing the “legal risks
of liability, litigation, and criminal prosecution”); Eric Schmitt & Carolyn Marshall, In

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that a manifest policy of kidnapping and torture would impugn the
administration’s legitimacy in the eyes of the nation and the world and
198
endanger its domestic political success.
Whatever its basis, the secrecy gradually unraveled, and it is
instructive to review the role sub-constitutional frameworks of
transparency played in that process. Defense Secretary Rumsfeld, no
mean analyst of political reality (whatever his other characteristics),
observed in February 2002:
[A]s we know, there are known knowns; there are things we know
we know. We also know there are known unknowns; that is to say we
know there are some things we do not know. But there are also
unknown unknowns—the ones we don’t know we don’t know. And
if one looks throughout the history of our country and other free
countries, it is the latter category that tend to be the difficult
199
ones.

Secret Unit’s ‘Black Room,’ A Grim Portrait of U.S. Abuse, N.Y. TIMES, Mar. 19, 2006, at A1
(“Placards posted by soldiers at the detention area advised, ‘NO BLOOD, NO FOUL.’
The slogan, as one Defense Department official explained, reflected an adage
adopted by Task Force 6-26: ‘If you don’t make them bleed, they can’t prosecute for
it.’ . . . [P]risoners at Camp Nama often disappeared into a detention black hole,
barred from access to lawyers or relatives. . . . ‘The reality is, there were no rules
there,’ another Pentagon official said”); see Seymour M. Hersh, The Redirection, NEW
YORKER, Mar. 5, 2007, at 54, 65 (“Iran-Contra was the subject of an informal ‘lessons
learned’ discussion two years ago among veterans of the scandal. Abrams led the
discussion. One conclusion was that even though the program was eventually
exposed, it had been possible to execute it without telling Congress,” suggesting that
tighter security would assure immunity from interference.).
For an earlier version of this gambit, see United States v. Stanley, 483 U.S. 669, 688–
89 (1987) (Brennan, J., concurring in part and dissenting in part) (quoting a U.S.
Army document stating that “Any claim against the US Government for alleged injury
due to EA 1729 [LSD] must be legally shown to have been due to the material.
Proper security and appropriate operational techniques can protect the fact of
employment of EA 1729.”).
198
The Working Group on Detainee Interrogation observed with understated
foresight, “Should information regarding the use of more aggressive interrogation
techniques than have been used traditionally by U.S. forces become public, it . . . may
produce an adverse effect on support for the war on terrorism.” DEP’T OF DEF.,
WORKING GROUP REPORT ON DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON
TERRORISM (Apr. 4, 2003), reprinted in THE TORTURE PAPERS, THE ROAD TO ABU GHRAIB
286, 346 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter WORKING
GROUP REPORT].
Similarly, Adm. Mora argued that inevitable leaks would generate “severe”
political fallout that could endanger political support for military initiatives.
Memorandum from Alberto J. Mora to Inspector General, Dep’t of the Navy 6, 9–10
(2004), available at http://www.aclu.org/pdfs/safefree/mora_memo_july_2004.pdf
[hereinafter Mora Memo].
199
DefenseLink News Transcript: DoD News Briefing - Secretary Rumsfeld and
Gen. Myers (Feb. 12, 2002), available at http://www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=2636 (deflecting a question challenging the assumption
that Iraq possessed weapons of mass destruction).

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The next three years witnessed a gradual migration of the
administration’s policies of abuse from the third category toward the
first.
1. The Policy that Dares not Speak its Name
Before the “Global War on Terror,” policies of kidnapping potential
opponents, then secreting them in “black sites” while subjecting them to
incommunicado detention, psychic pressure, coercive interrogation, and
physical abuse seemed to belong only to the official arsenals of America’s
enemies and less savory allies. America condemned the Third Reich for
its “special interrogation” tactics and concentration camps, the Soviet
Union for its brainwashing and gulags, and the People’s Republic of
China for its re-education camps. It viewed the “disappearances” of
Argentina’s “dirty war” as an embarrassment, and by the mid-1980s
American courts had come to view the torturer, like the pirate and slave
200
trader, as an enemy of humanity.
September 11 was said to change many things. But officially,
American repugnance for torture and regard for the rule of law were not
among them. When the invasion of Afghanistan yielded prisoners,
military spokesmen announced that while “[t]hese are potentially very
dangerous people . . . [w]hen we get prisoners, we don’t torture them
. . . . We keep them warm, we keep them fed, we keep the rain off their
201
heads.” When John Walker Lindh was indicted, Attorney General
Ashcroft declaimed: “The United States is a country of laws, and not of
men. . . . At each step in this process, Walker Lindh’s rights, including his
rights not to be—not to incriminate himself and to be represented by
202
counsel, have been carefully, scrupulously honored.” Secretary of
Defense Rumsfeld was said to be “visibly perturbed” by allegations of

200
Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980) (“[F]or purposes of
civil liability, the torturer has become—like the pirate and slave trader before him—
hostis humani generis, an enemy of all mankind.”); see also Torture Victim Protection
Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992); Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, Apr. 18, 1988, S.
TREATY DOC. NO. 100-20 (ratifying the Convention).
I discuss the link between the rejection of torture and America’s constitutional
identity in Seth F. Kreimer, Too Close to the Rack and Screw: Constitutional Constraints on
Torture in the War on Terror, 6 U. PA. J. CONST. L. 278, 311–16 (2003); see also Jeremy
Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV.
1681, 1739–48 (2005) (outlining deep links between the prohibition of torture and
the rule of law). To be sure, official practice often diverged from official policy; from
CIA medical experiments and interrogation manuals to connivance in brutal
repression and death squads. But official military doctrine did not permit abuse of
prisoners, and official policy maintained allegiance to human rights norms.
201
John Hendren, U.S. Shifts Its Focus in Afghanistan to Prisoners, L.A. TIMES, Dec.
30, 2001, at A1.
202
Attorney General John Ashcroft, News Conference—Indictment of John
Walker
Lindh
(Feb.
5,
2002),
available
at
http://www.usdoj.gov/
archive/ag/speeches/2002/020502transcriptindictmentofjohnwalkerlindh.htm.

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detainee mistreatment and responded emphatically to uphold American
honor:
“Let there be no doubt . . . [t]he treatment of the detainees in
Guantanamo Bay is proper, it’s humane, it’s appropriate and it is
fully consistent with international conventions. . . . No detainee has
been mistreated in any way. And the numerous articles, statements,
questions, allegations and breathless reports on television are
undoubtedly by people who are either uninformed, misinformed or
203
poorly informed.”
In early 2002, President Bush was publicly confronted with a choice
between pressure from the State Department to treat captured prisoners
in accord with the Geneva Conventions and adherence to a
memorandum from Alberto Gonzales—rapidly leaked to the public—
arguing that a “new paradigm renders obsolete Geneva’s strict limitations
on questioning of enemy prisoners and renders quaint some of its
204
provisions.” Bush’s official response was to partially reverse his earlier
decision to ignore the Geneva Convention. He announced that he had
“determined that the Geneva Convention applies to the Taliban
detainees, but not to the al-Qaida detainees” while maintaining that
[t]he United States is treating and will continue to treat all of the
individuals detained at Guantanamo humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of the Third Geneva Convention of
1949. . . . The detainees will not be subjected to physical or mental
abuse or cruel treatment.205
As the ranks of detainees swelled, and complaints of abusive conditions
and interrogations were voiced, the administration continued to disavow
“torture,” to tout its adherence to the Convention Against Torture “as

203

Richard A. Serrano & John Hendren, Rumsfeld Strongly Denies Mistreatment of
Prisoners, L.A. TIMES, Jan. 23, 2002, at A1.
204
Rowan Scarborough, Powell Wants Detainees To Be Declared POWs, WASH. TIMES,
Jan. 26, 2002, at 1.
205
The White House, Fact Sheet: Status of Detainees at Guantanamo (Feb. 7,
2002), available at http://www.whitehouse.gov./news/releases/2002/02/print/
20020207-13.html. Consistent with the disingenuous legalism that has characterized
this administration, the announcement guaranteeing “humane” treatment applied
only to detainees at Guantanamo, leaving open the possibility of treating al-Qaeda
detainees elsewhere inhumanely since Bush had “determined” that the Geneva
Convention did not cover them. See SEYMOUR HERSH, CHAIN OF COMMAND 5 (2004)
(reporting that a “secret statement of the President’s views, which he signed on
February 7, 2002, had a loophole that applied worldwide. ‘I . . . determine that none
of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or
elsewhere throughout the world.’”); accord Jane Mayer, Outsourcing Torture, NEW
YORKER, Feb. 14, 2005, at 106 (citing as an example of “painstakingly constructed . . .
loopholes” the February 2002 directive regarding humane treatment: “A close
reading of the directive, however, revealed that it referred only to military
interrogators—not to C.I.A. officials.”)

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ratified,” and to maintain that detainees were being treated
206
“humanely.”
As would later become clear, this public posture coexisted with a
quite different “off the books” reality. Beginning in September 2001,
President Bush authorized the CIA to engage in kidnapping and secret
207
coercive interrogations in the pursuit of “terrorists.” This authority did
not lie fallow; suspects were “rendered” to countries where they could be
tortured, and the CIA began to establish a network of “black sites” where
208
“no holds barred” interrogation could proceed without interference.
206
Letter from William J. Haynes II, Gen. Counsel, Dep’t of Def., to Sen. Patrick
J. Leahy (June 25, 2003), available at http://www.hrw.org/press/2003/06/
letter-to-leahy.pdf (“United States policy is to treat all detainees and conduct all
interrogations, wherever they may occur, in a manner consistent with” U.S.
obligations under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment “as ratified.”); see also Press Release, The White House,
Statement by the President, United Nations International Day in Support of Victims
of Torture (June 26, 2003), available at http://www.whitehouse.gov/news/releases/
2003/06/20030626-3.html (“Torture anywhere is an affront to human dignity
everywhere”); HERSH, supra note 205, at 19 (describing an “angry” lecture by Haynes
asserting that “[w]e don’t torture”).
As has been extensively discussed, these assurances were rife with disingenuous
language. “Torture” was defined extraordinarily narrowly and the obligations of the
Convention “as ratified” were read to allow physical assaults short of “torture.” For my
own prior analysis, see Seth F. Kreimer, “Torture Lite,” “Full Bodied” Torture, and the
Insulation of Legal Conscience, 1 J. NAT’L SEC. L. & POL’Y 187, 189–201 (2005).
207
Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2,
2005, at A1, available at http://www.washingtonpost.com/wp-dyn/content/
article/2005/11/01/AR2005110101644.html (reporting that intelligence officials
“believe that the CIA general counsel’s office acted within the parameters of” the
September 17, 2001, presidential finding authorizing covert action against al-Qaeda
in approving the black-site program, since the “black-site program was approved by a
small circle of White House and Justice Department lawyers and officials, according
to several former and current U.S. government and intelligence officials”); Mayer,
supra note 205 (“[S]ince September 11th the C.I.A. ‘has seemed to think it’s
operating under different rules, that it has extralegal abilities outside the U.S.’
Agents, [a former FBI agent] said, have ‘told me that they have their own enormous
office of general counsel that rarely tells them no. Whatever they do is all right. It all
takes place overseas.’”); John Barry, Michael Hirsh & Michael Isikoff, The Roots of
Torture, NEWSWEEK, May 24, 2004, available at http://www.why-war.com/news/
2004/05/24/theroots.html (“One Justice Department memo, written for the CIA late
in the fall of 2001, put an extremely narrow interpretation on the international antitorture convention, allowing the agency to use a whole range of techniques—
including sleep deprivation, the use of phobias and the deployment of ‘stress
factors’—in interrogating Qaeda suspects. . . . According to knowledgeable sources,
the president’s directive authorized the CIA to set up a series of secret detention
facilities outside the United States, and to question those held in them with
unprecedented harshness. Washington then negotiated novel ‘status of forces
agreements’ with foreign governments for the secret sites. These agreements gave
immunity not merely to U.S. government personnel but also to private contractors.”).
208
HERSH, supra note 205, at 53 (describing December 18, 2001 kidnapping of
Ahmed Agiza, Muhammed al-Zery, two Egyptians who had sought asylum in Sweden);
see Craig Whitlock, A Secret Deportation of Terror Suspects, WASH. POST, July 25, 2004, at
A1
available
at
http://www.washingtonpost.com/wp-dyn/articles/A11976-

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Secret authority for military coercion followed. In December 2001,
the confidential official guidance to interrogators of John Walker Lindh
was that “the secretary of Defense’s counsel has authorized him to ‘take
209
the gloves off.’” Lindh was “fed sparingly and given only minimal
medical attention,” “blindfolded and bound with plastic cuffs so tight
they cut off the circulation to his hands,” and “threatened . . . with death
and torture.” His “clothes were cut off him, his hands and feet were again
shackled, and he was bound tightly with duct tape to a stretcher. Still
blindfolded and completely naked, he was then placed in a metal
210
shipping container,” and he was then questioned. When, as part of his
defense in a criminal prosecution, Lindh’s lawyers threatened to make a
public record of the abuse to which he had been subjected, the
administration entered into a lenient plea agreement rather than risk
211
that exposure. In the same time period, the President authorized the
Defense Department to establish a top secret “special-access program”
authorized to assassinate, kidnap, and harshly interrogate “high-value” al
212
Qaeda suspects in “secret interrogation centers.”

2004Jul24.html; Larisa Alexandrovna & David Dastych, Soviet-Era Compound in
Northern Poland Was Site of Secret CIA Interrogation, Detentions, RAW STORY, Mar. 7, 2007,
http://www.rawstory.com/
news/2007/Sovietera_compound_in_Poland_was_site_0307.html (“Only the Polish
prime minister and top Polish intelligence brass were told of the plan, in which
agents of the United States quietly shuttled detainees from other holding facilities
around the globe for stopovers and short-term interrogation in Poland between late
2002 and 2004.”); id. (describing use of these sites for “no holds barred”
interrogations).
209
Richard Serrano, Prison Interrogators’ Gloves Came Off Before Abu Ghraib, L.A.
TIMES, June 9, 2004, at A1 (“Lindh was being questioned while he was propped up
naked and tied to a stretcher in interrogation sessions that went on for days,
according to court papers. In the early stages, his responses were cabled to
Washington hourly, the new documents show.”)
210
Richard A. Serrano, Lindh Defense Team Offers Abuse List, L.A. TIMES, Mar. 24,
2002, at A1.
211
See Jane Mayer, Lost in the Jihad, NEW YORKER, Mar. 10, 2003, at 50 available
at http://www.newyorker.com/archive/2003/03/10/030310fa_fact2?currentPage=1
(“‘The Defense Department was really worried about the claims of mistreatment,’
George Harris [one of Lindh’s lawyers] said. ‘They said the deal had to be struck
before the suppression hearing, so the details wouldn’t get out. They really wanted us
to agree to drop any claims of intentional mistreatment. That was key to Rumsfeld.’”);
Andrew Cohen, Lindh Layers are Peeling Away, CBSNEWS.COM, Mar. 11, 2003,
http://www.cbsnews.com/stories/2003/03/11/news/opinion/courtwatch/main5434
97.shtml (“It was clear, although the government never explicitly conceded so, that
prosecutors were open to a deal with Lindh because of the brutal way in which he was
treated by his military captors in Afghanistan and the spurious way in which federal
law enforcement officials had observed Lindh’s constitutional rights. It is no
coincidence that the Lindh deal came about on the eve of a scheduled week-long
hearing that was going to bring into the open the specifics of how he was treated and
by whom.”).
212
HERSH, supra note 205, at 16.

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As interrogations in Guantanamo and other sites continued between
August 2002 and March 2003, and preparations for the war in Iraq
proceeded, administration lawyers and policy makers generated further
secret legal and policy memoranda legitimizing a variety of “CounterResistance Techniques” that contemplated psychic and physical assaults
213
on prisoners in the search for intelligence. Details that have emerged
from this period again establish that these authorities were not mere
214
thought experiments.
In late 2002, FBI agents at Guantanamo registered complaints
215
regarding the legality of interrogation practices. Internal military
reports of these abuses provoked struggles in late 2002 and early 2003 by
principled members of the military to turn policy and practice away from
barbarism—efforts that proved only partially and temporarily
216
successful. Approval for a memorandum authorizing severe physical

213

Again, these memoranda have been widely discussed. My own account can be
found in Kreimer, supra note 206, at 190–94. For one salient example of manipulative
use of language, consider Memorandum from James T. Hill, Gen., U.S. Army, to
Chairman of the Joint Chiefs of Staff on Counter-Resistance Techniques (Oct. 25,
2002), reprinted in DANNER, supra note 197, at 167, 179 (expressing the belief that the
following techniques are “legal and humane”: “use of stress positions . . . for a
maximum of four hours”; denial of “non-emergent” medical care; “[d]eprivation of
high and auditory stimuli”; hooding; removal of clothing; “[f]orced grooming
(shaving of facial hair etc.)”; and using “fear of dogs . . . to induce stress”).
214
See, e.g., HERSH, supra note 205, at 2 (describing CIA analyst who examined
interrogations at Guantanamo in mid-2002 and “came back convinced that we were
committing war crimes”); id. at 6 (reporting FBI complaints of “slapping, . . .
stripping, . . . pouring cold water, . . . making [prisoners] stand until they got
hypothermia”); Jane Mayer, The Memo, NEW YORKER, Feb. 27, 2006, at 32 (Official logs
described a detainee being “subjected to a hundred and sixty days of isolation in a
pen perpetually flooded with artificial light, . . . interrogated on forty-eight of fiftyfour days, for eighteen to twenty hours at a stretch” and being “stripped naked;
straddled by taunting female guards . . . forced to wear women’s underwear on his
head, and to put on a bra; threatened by dogs; placed on a leash; and told that his
mother was a whore. By December [2002], Qahtani had been subjected to a phony
kidnapping, deprived of heat, given large quantities of intravenous liquids without
access to a toilet, and deprived of sleep for three days.”)
215
152 CONG. REC. S9998–99 (2006) (statement of Sen. Carl Levin on the
nomination of Kenneth Wainstein to be Assistant Attorney General for National
Security),
available
at
http://www.senate.gov/~levin/newsroom/
release.cfm?id=263599 (describing statement by former FBI Deputy General Counsel
Marion Bowman that in late 2002, he “recommended [to FBI General Counsel
Wainstein] that we notify DoD’s general counsel that there were concerns about the
treatment of detainees at Guantanamo.”).
216
See, e.g., Mayer, supra note 214 (providing an account of efforts beginning in
December 2002 by Admiral Alberto Mora, General Counsel of the Navy, triggered by
whistleblowing investigators and psychologists to change policy and stem “escalating
levels of physical and psychological abuse” in Guantanamo interrogations); Mora
Memo, supra note 198; HERSH, supra note 205, at 2–10 (describing efforts of General
John A. Gordon, Deputy National Security Advisor, in fall 2002 to seek high-level
review of Guantanamo policies, which were met with a “full-court stall” by the
Pentagon).

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abuse was revoked, the abuse at Guantanamo was suspended, and a
“working group” was convened to examine the problem. In the course of
the deliberations, high-level JAG officers tabled strenuous objections to
217
the prospect of legitimizing abuse. The working group, however,
ultimately disseminated an opinion authorizing prisoner abuse, but
concealed its contents from potential opponents within the
218
government.
2. Seeping Transparency: “Information Wants to Be Free”
a. Leaks and Hints
Official denials notwithstanding, the policy of abuse was not entirely
hidden from view. In deliberating internally, the administration
apparently adopted an analysis that placed almost unlimited weight on
avoiding dangers that could arise from the possible direct actions of
opponents and discounted the possible doubts or adverse collateral
219
effects of its own actions. In the immediate aftermath of September 11,
[B]y the fall of 2002, some senior Justice Department officials were uneasy with
the Pentagon’s handling of the detainees . . . .
“[Counsel to the Vice-President David] Addington’s position was, ‘We think what
we’re doing is right—why should we stop doing it?’ a former White House
official said. ‘If the courts tell us we’re wrong, we’ll stop then.” . . .
At Ms. Rice’s urging, Mr. Rumsfeld also agreed to give comprehensive briefings
on Guantanamo to cabinet-level national-security officials and their deputies.
Officials said the higher-level presentation was delivered on Jan. 16, 2003. . . . ‘It
was basically a sales job . . . .’

Tim Golden, Tough Justice; Administration Officials Split Over Stalled Military Tribunals,
N.Y. TIMES, Oct. 25, 2004, at A1. The Mora Memo maintains that reports of abusive
interrogation practices at Guantanamo ceased on January 15, 2003. Mora Memo,
supra note 198, at 21. It does not purport to opine on actions elsewhere, and in
December of 2003, FBI agents were complaining of “torture” tactics at Guantanamo.
See E-mail from unknown author to Gary Bald (Dec. 5, 2003) (regarding
Impersonating FBI at U.S. Naval Station Guantanamo Bay, Cuba), available at
http://www.aclu.org/torturefoia/released/FBI.121504.3977.pdf;
cf.
Detainee
Interviews (Abusive Interrogation Issues) (May 6, 2004), available at
http://www.aclu.org/torturefoia/released/FBI_4194.pdf (reporting that the FBI
objected to interrogation tactics in 2002 and 2003).
217
Office of the Judge Advocate Gen., Unclassified Memoranda, collected at
Balkinization, http://balkin.blogspot.com/jag.memos.pdf.
218
WORKING GROUP REPORT supra note 198; see Mayer, The Memo, supra note 214;
Mora Memo, supra note 198; Posting of Marty Lederman to Balkinization,
http://balkin.blogspot.com/2005/09/silver-linings-or-strange-but-true.html
(Sept.
21, 2005) (describing back-channel promulgation of policy and marginalization of
JAG officers).
219
RON SUSKIND, THE ONE PERCENT DOCTRINE 62 (2006) (describing “the Cheney
Doctrine”: “Even if there’s just a one percent chance of the unimaginable coming
due, act as if it is a certainty. It’s not about ‘our analysis,’ as Cheney said. It’s about
‘our response.’”); id. at 166 (“Essentially the ‘war on terror’ was being guided by little
more than ‘the principle of actionable suspicion . . . . [T]he whole concept was that
not having hard evidence shouldn’t hold you back.”).

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intimations of this attitude began to emerge in public discussion as
members of an administration frantic to gather information regarding a
220
threat of unknown dimensions contemplated barbaric measures. As
what President Bush later referred to coyly as “an alternative set of
221
procedures” began to be deployed, their traces appeared in media
222
reports. Administration officials projecting a posture of toughness
223
hinted at these measures in public statements. But the administration

220

E.g. John Cloud, Hitting the Wall, TIME, Nov. 5, 2001, at 65 (“Last week the
Washington Post reported that some frustrated officials were actually discussing
whether to seek approval for using truth drugs on the detainees. (The FBI denied the
story.) Another option, since the U.S. would not formally condone torture, is to
extradite the most intransigent detainees to allied nations known for bare-knuckle
police work—a legally questionable move made on rare occasions even before Sept.
11.”).
221
President George W. Bush, President Discusses Creation of Military
Commissions to Try Suspected Terrorists (Sept. 6, 2006), available at
http://www.whitehouse.gov/news/releases/2006/09/print/20060906-3.html.
222
Rajiv Chandrasekaran & Peter Finn, U.S. Behind Secret Transfer of Terror Suspects,
WASH. POST, Mar. 11, 2002, at A1 ( giving an account of “renditions” to Egypt and
Guantanamo, and quoting “U.S. officials” and “diplomats” as stating that “dozens” of
renditions had occurred to “get information from terrorists in a way we can’t do on
U.S. soil”); Eric Umansky, Failures of Imagination, COLUM. JOURNALISM REV., Sept./Oct.
2006,
available
at
http://cjrarchives.org/issues/2006/5/
Umansky.asp (describing the genesis of the Chandrasekaran and Finn article, supra:
“Chandrasekaran was reporting from Pakistan and saw a reference in a local paper to
an al Qaeda suspect who had been flown away in the middle of the night by the U.S.
Chandrasekaran ran the plane’s tail number, which had been published, through an
FAA database and quickly suspected that a CIA front was involved. ‘I tried finding the
number for the company listed and couldn’t get anything,’ . . . . The following spring,
in early 2002, Chandrasekaran was stationed in Indonesia and saw a squib in a local
paper about an Arab handed over to foreigners at a military air base. ‘I went to the
guy’s neighborhood, talked to Indonesia intel sources, and one opened up to me,’ he
remembers.”); Jess Bravin, Interrogation School Tells Army Recruits How Grilling Works,
WALL ST. J., Apr. 26, 2002, at A1 (describing tactics “just a hair’s-breadth from being
an illegal specialty under the Geneva Convention”); Philip Shenon, Officials Say Qaeda
Suspect Has Given Useful Information, N.Y. TIMES, Apr. 26, 2002, at A12 (“[S]uspects will
not be subjected to any form of torture. But officials said other, nonviolent forms of
coercion were being used, including sleep deprivation and a variety of psychological
techniques that are meant to inspire fear.”); Jess Bravin & Gary Fields, How Do U.S.
Interrogators Make a Captured Terrorist Talk?, WALL ST. J., Mar. 4, 2003, at B1 (“[T]he
treaty has no enforcement mechanism, as a practical matter, ‘you’re just limited by
your imagination,’ a U.S. law-enforcement official says.”); id. (describing physical
assaults and extradition “to some other country that’ll let us pistol whip this guy”).
223
Joint Inquiry into Intelligence Community Activities Before and After the Terrorist
Attacks of Sept. 11, 2001: Hearings Before the S. Select Comm. on Intelligence and the H.
Permanent Select Comm. on Intelligence, 105th Cong. 590 (2002) (testimony of Cofer
Black) (“Operational flexibility: This is a highly classified area. All I want to say is that
there was a ‘before’ 9/11 and there was an ‘after’ 9/11. After 9/11 the gloves come
off. Nearly three thousand al-Qa’ida terrorists and their supporters have been
detained.”); Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations;
“Stress and Duress” Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,
WASH. POST, Dec. 26, 2002, at A1.

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struggled to keep hard confirmation of abuses out of the public record.
In the absence of such confirmation, administration spokesmen and
apologists could seek to portray accusations of abuse as based in political
225
animus and misinformation. The canons of responsible journalism
combined with faith in the efficacy of traditional American values and
the threat of accusations of unpatriotic rumor-mongering to limit
226
reporting of thinly confirmed abuses.
Still, facts are stubborn things, and by early 2003, the combination of
off-the-record statements by American officials, reports by third party
observers, and corroborating details began to congeal into accounts of
abuses that were publishable in mainstream American media. The most
prominent initial report appeared in the Washington Post in December
2002, as military lawyers struggled to reverse official approvals of abusive
227
interrogation.
228
Other domestic accounts followed over the next three months,
229
while foreign newspapers ran similar reports. But amidst the fog of war
224
See, e.g., discussion of Lindh plea bargain, supra notes 210–11; Pentagon Photos
Whodunnit, CBSNEWS.COM, Nov. 8, 2002, http://www.cbsnews.com/stories/2002/
11/08/attack/main528709.shtml (“The Pentagon Friday was investigating to find out
who took and released photographs of terror suspects as they were being transported
in heavy restraints aboard a U.S. military plane. Four photographs of prisoners—
handcuffed, heads covered with black hoods and bound with straps on the floor of a
plane—appeared overnight on the web site of radio talk show host Art Bell.
‘Anonymous mailer sends us photos taken inside a military C-130 transporting
POWS,’ the headline said.”); Bruce Kennedy, The Truth is Out There: How “Detainees”
Are Really Treated, Nov. 8, 2002, available at http://www.jihadunspun.com/
inHumanTerms/humanitarian/ttio.html (displaying the four photographs); Richard
Sisk, POW Pix Stir Furor; Military Denies Abuse, DAILY NEWS, Nov. 9, 2002, at 2.
225
See, e.g., supra note 203 and accompanying text (discussing statements by
Rumsfeld); Center for Defense Information, Q & A with Rear Adm. (Ret.) Stephen
H.
Baker,
U.S.N,
Senior
Fellow,
CDI
(Jan.
25,
2002),
http://www.cdi.org/friendlyversion/printversion.cfm?documentID=1185 (“I think
the ‘outcry’ is unfounded and primarily the result of the notorious British tabloids,
Islamic groups in London, and political critics that have specific agendas to pursue. I
think the majority of the American public, and the world, understands that
inhumane treatment of prisoners is not the American way.”); Office of the Press
Sec’y, Press Briefing by Ari Fleischer (Mar. 3, 2003) (“The standard for any type of
interrogation of somebody in American custody is to be humane and to follow all
international laws and accords dealing with this type [of] subject.”).
226
See Umansky, supra note 222.
227
Priest & Gellman, supra note 88 (providing accounts of interrogation
techniques in American detention facilities, including “stress and duress” methods,
criminal investigation into death of two prisoners at U.S. Air Force base, and alleged
abuses); id. (quoting one official as commenting, “If you don’t violate someone’s
human rights some of the time, you probably aren’t doing your job”).
228
Umansky, supra note 222 (reporting that after a New York Times reporter filed
a story on death in custody in Afghanistan, it was held back by editors because of
doubts about sourcing); Carlotta Gall, U.S. Military Investigating Death of Afghan in
Custody, N.Y. TIMES, Mar. 4, 2003, at A14 (the story by Umansky); Knut Royce, Mixed
Reviews from Experts; Critics: Makes Case on Deceit, Not Terror, NEWSDAY, Feb. 6, 2003, at
A7 (quoting Vincent Cannistraro, the former director of CIA’s counterterrorism

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in Afghanistan and the mounting public relations campaign for invading
230
Iraq, it was difficult to establish or scrutinize underlying policy.
The invasion of Iraq brought the prospect of further prisoners. In
April 2003, internal military dismay with the prospect of abandoning
limits that had constrained abuse for two generations impelled military
lawyers to confidentially approach civilian human rights advocates in an
231
effort to spark opposition. Although advocates began to undertake
these initiatives, they gained relatively little public traction, and in the
absence of hard evidence, the administration’s disavowal of “torture” and
“inhumane” treatment continued to dominate general public
232
233
discussion. Inquiries from Congress were deflected; complaints from
center, referring to “a senior al-Qaida detainee who had been held in the U.S. base at
Guantanamo, Cuba, and was ‘rendered’ to Egypt after refusing to cooperate[, and
‘t]hey promptly tore his fingernails out and he started to tell things’”); Bravin &
Fields, supra note 222 (quoting an unnamed “U.S. law-enforcement official” saying
that “because the [Convention Against Torture] has no enforcement mechanism, as a
practical matter, ‘you’re just limited by your imagination,’ . . . . You go to some other
country that’ll let us pistol whip this guy.”); Raymond Bonner et al., Questioning Terror
Suspects in a Dark and Surreal World, N.Y. TIMES, Mar. 9, 2003, at A1 (“Senior American
officials said . . . interrogation would rely on what they consider acceptable
techniques like sleep and light deprivation and the temporary withholding of food,
water, access to sunlight and medical attention . . . covering suspects’ heads with
black hoods for hours at a time and forcing them to stand or kneel in uncomfortable
positions in extreme cold or heat . . . some suspects had been turned over to security
services in countries known to employ torture.”); Mayer, supra note 211 (describing
the interrogation of Lindh).
229
E.g., Al-Qaeda Operatives Running Scared—Countdown to Conflict, DAILY
TELEGRAPH, Mar. 5, 2003, at 4 (“CIA interrogators continued questioning Khalid
[Sheikh Mohammed] yesterday. He is likely to be bound hand and foot and kept
awake for days in solitary confinement. US intelligence officers will use psychological
‘stress and duress’ techniques to break him . . . .”).
230
At the same time, the D.C. Circuit affirmed the District Court’s decisions
denying relief to Guantanamo detainees in Al Odah v. United States, 321 F.3d 1134,
1145 (D.C. Cir. 2003).
231
Barry, Hirsh & Isikoff, supra note 207 (“Covertly, though, the JAGs made a
final effort. . . . The JAGs told Horton they could only talk obliquely about practices
that were classified. But they said the U.S. military’s 50-year history of observing the
demands of the Geneva Conventions was now being overturned.”); Seymour M.
Hersh, The Gray Zone, NEW YORKER, May 24, 2004, at 38, 42 (“In 2003, Rumsfeld’s
apparent disregard for the requirements of the Geneva Conventions while carrying
out the war on terror had led a group of senior military legal officers from the Judge
Advocate General’s (JAG) Corps to pay two surprise visits within five months to Scott
Horton, who was then chairman of the New York City Bar Association’s Committee
on International Human Rights. ‘They wanted us to challenge the Bush
Administration about its standards for detentions and interrogation’ . . . .”).
232
David E. Kaplan, Playing Offense: The Inside Story of How U.S. Terrorist Hunters Are
Going After al Qaeda, U.S. NEWS & WORLD REP., June 2, 2003, at 18 (providing a largely
admiring account of the administration’s “lock[ing] up” nearly 1,000 al Qaeda
members and supporters in 2002, establishing “a network of holding centers and
prisons the United States began using in the war on terrorism,” and carrying out
renditions of “dozens” of prisoners ); Peter Slevin, U.S. Pledges Not to Torture Terror
Suspects, WASH. POST, June 27, 2003, at A1 (reporting on a statement by Defense

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the International Committee of the Red Cross were buried. By the fall
of 2003, the administration sought to bolster its flagging efforts in Iraq by
bringing to bear the interrogation techniques it had deployed
235
elsewhere.
In this environment, advocacy groups turned to the Freedom of
Information Act. Notwithstanding the earlier bleak reception before the
236
DC Circuit in CNSS, in early October 2003 the ACLU and a coalition of
civil rights organizations filed a Freedom of Information Act request.
Citing the news reports and complaints of abuse, it sought documents
regarding “policies, procedures or guidelines,” and legal discussion of
abuse of prisoners in American custody, as well as documents regarding
enforcement of such guidelines, violations, and treatment of detainees.
237
238
Allegations continued to leak into the news media, and Maher Arar,

Department General Counsel Haynes that the U.S. would not engage in “cruel,
inhuman or degrading treatment”).
233
See Press Release, Sen. Patrick Leahy, Statement on the Abuse of Prisoners in
U.S. Military Custody (May 5, 2004), available at http://leahy.senate.gov/
press/200405/050504c.html (describing inquiries from his office and Sen. Specter’s
in summer and fall 2003).
234
Douglas Jehl, Earlier Jail Seen as Incubator for Abuses in Iraq, N.Y. TIMES, May 15,
2004, at A1 (“After several visits to Camp Cropper, where they interviewed Iraqi
prisoners, officials of the I.C.R.C. in early July 2003 cited at least 50 incidents of abuse
reported to have taken place in a part of the prison under the control of military
interrogators.”); Umansky, supra note 222 (“Charles Hanley, a special correspondent
for The Associated Press . . . came across a little-noticed Amnesty International report
charging that ‘very severe’ human rights abuses were occurring at U.S. prisons [in
Iraq] . . . [that] suggested that the Amnesty allegations were based at least in part on
leaks from the International Committee for the Red Cross . . . .”).
235
Seymour M. Hersh, Rumsfeld’s Dirty War on Terror (Part 2), GUARDIAN, Sept. 13,
2004,
available
at
http://web.archive.org/web/20040914004848/
books.guardian.co.uk/extracts/story/0,6761,1303429,00.html. (“By the autumn of
2003, a military analyst told me, the extent of the Pentagon’s political and military
misjudgments in Iraq was clear. The solution, endorsed by Rumsfeld and carried out
by Cambone, was to get tough with the Iraqi men and women in detention—to treat
them behind prison walls as if they had been captured on the battlefields of
Afghanistan.”); HERSH, supra note 205, at 59–62 (describing abuse so extreme that
the CIA “checks with their lawyers and pulls out.”).
236
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir.
2003).
237
Letter from Amrit Singh, Staff Attorney, ACLU, to Freedom of Information
Officer (Oct. 7, 2003), available at http://www.aclu.org/torturefoia/legaldocuments/
nnACLUFOIArequest.pdf.
238
Mark Bowden, The Dark Art of Interrogation, ATLANTIC MONTHLY, Oct. 2003, at
51; see Josh Gerstein, Op-Ed, Selective Secrecy, N.Y. SUN, Oct. 15, 2004, at 11 (giving an
account of October of 2003 when “Red Cross officials expressed their concerns about
Guantanamo for articles published or aired by the Associated Press, National Public
Radio, and the New York Times,” as well as publishing “emotional first-hand audio
accounts from its staff” on its website, but noting that the author’s FOIA request for
Red Cross complaints had been denied); cf. Gerstein v. Dep’t of Defense, No. 03-5193
(N.D. Cal. Dec. 21, 2004) (denying FOIA request) (referred to in Nat’l Inst. of
Military Justice v. U.S. Dep’t of Def., 404 F. Supp. 2d 325, 340 (D.D.C. 2005)).

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a Canadian deported by the U.S. to be tortured in Syria a year earlier was
239
released to begin his campaign for vindication. Yet, the Defense
Department denied expedited processing of the ACLU request on the
240
ground that the subject lacked urgency.
b. Internal Scrutiny and Abu Ghraib
In late 2003, complaints of abusive interrogation techniques again
began to make their way up the hierarchy of the administration. FBI
241
agents stationed at Guantanamo complained of “torture techniques”;
FBI and CIA agents objected to military abuses in Iraq and withdrew
242
from cooperation; complaints from the field in Iraq by officials of the
Coalition Provisional Authority and the State Department provoked
243
discussions at high-level national security meetings; and Army reports
244
began to note potential human rights violations. In December 2003,

239
See Arar v. Ashcroft, 414 F. Supp. 2d 250, 255 (E.D.N.Y. 2006) (“On October 5,
2003, Syria, without filing any charges against Arar, released him into the custody of
Canadian Embassy officials in Damascus.”); Letter from Sen. Patrick Leahy to William
J. Haynes II, General Counsel, Dep’t of Def. (Sept. 9, 2003), available at 150 CONG.
REC. S781, S783–84 (daily ed. Feb. 10, 2004) (raising questions about the treatment
of Arar).
240
Letter from H.J. McIntyre, Dir., Directorate for Freedom of Info. and Sec.
Rev., Dep’t of Def., to Amrit Singh, Staff Attorney, ACLU Found. (Oct. 30, 2003),
available
at
http://www.aclu.org/torturefoia/legaldocuments/mmDODrejectexpproc.pdf
(denying expedited processing). At the same time, the administration sought to
suppress information regarding the custodial treatment of Jose Padilla. Tim Grieve,
Trust Us, SALON.COM, May 17, 2004, http://dir.salon.com/story/news/feature/
2004/05/17/trust/index.html (When the Department of Defense allowed Padilla’s
counsel to interview him in late 2003, according to counsel, “We were prohibited
from asking him about the conditions of his confinement.”).
241
See E-mail from unknown author to Gary Bald (Dec. 5, 2003) (regarding
Impersonating FBI at the U.S. Naval Station Guantanamo Bay, Cuba), available at
http://www.aclu.org/torturefoia/released/FBI.121504.3977.pdf; Counterterrorism
Interdepartmental Memorandum (Nov. 25, 2003), available at http://www.aclu.org/
torturefoia/released/FBI_4625_4629.pdf (documenting the impersonation of FBI
agents by DoD interrogators).
242
Mark Bowden, The Ploy, ATLANTIC MONTHLY, May 2007, available at
http://www.ocnus.net/artman/publish/article_28511.shtml. (“In early 2004, both
the CIA and the FBI complained to military authorities about such practices. The spy
agency then banned its personnel from working at [one facility.]”).
243
Johanna McGeary, The Scandal’s Growing Stain, TIME, MAY 18, 2007, available at
http://www.time.com/time/printout/0,8816,994176,00.html (“Aides to Bremer and
Secretary of State Colin Powell say that as early as last fall, both men raised the issue
in meetings with the rest of the Administration’s national-security team. Yet no action
was taken . . . .”).
244
HERSH, supra note 205, at 28 (citing Nov. 5, 2003 report by General Ryder to
General Sanchez regarding potential “human rights violations” and “serious
concerns” about interrogation in Iraq); see also INT’L COMM. OF THE RED CROSS, THE
ICRC REPORT: REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC)
ON THE TREATMENT BY THE COALITION FORCES OF PRISONERS OF WAR AND OTHER
PROTECTED PERSONS BY THE GENEVA CONVENTIONS IN IRAQ DURING ARREST, INTERNMENT

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Jack Goldsmith, who had been appointed to head the Office of Legal
Counsel (OLC) in October 2003, advised the Department of Defense
that the earlier OLC memo defining away the prohibition on torture “was
245
under review” and “should not be relied upon.” Fatefully, on January
13, 2004, Sgt. Joseph Darby submitted a complaint and a compact disc of
Abu Ghraib pictures to a military investigator for the Criminal
246
Investigative Division. The Army issued a one-paragraph press release
referring to an investigation of prisoner abuse at an unspecified prison in
247
Iraq, withholding specific details. A week later, reports of the nature of
248
the abuse began to circulate. On January 28, 2004, the Canadian
government announced a full public inquiry into the deportation to Syria
249
and alleged torture of Maher Arar. On January 31, 2004, General
AND INTERROGATION (Feb. 2004), reprinted in
GHRAIB 384 (Karen J. Greenberg & Joshua L.

THE TORTURE PAPERS: THE ROAD TO ABU
Dratel eds., 2005).
245
Letter from Daniel Levin, Acting Ass’t Att’y Gen., Office of Legal Counsel,
U.S. Dep’t of Justice, to William J. Haynes II, General Counsel, Dep’t of Def. (Feb. 4,
2005), available at http://balkin.blogspot.com/Levin.Haynes.205.pdf.
At roughly the same time, American agents kidnapped an innocent German
citizen, Khalid El Masri. El-Masri v. Tenet, 437 F. Supp. 2d 530, 532–33 (E.D. Va.
2006) (reporting that he was detained on December 31, 2003; flown to Kabul by CIA
agents, and then beaten, detained, and interrogated). Also, American military
operators in Iraq began to increase abusive interrogations in an effort to suppress
insurgents. See, e.g., Eric Schmitt & Carolyn Marshall, In Secret Unit’s “Black Room,” A
Grim Portrait of U.S. Abuse, N.Y. TIMES, Mar. 19, 2006, at A1 (describing abuses by
special forces in early 2004 “[a]s the Iraqi insurgency intensified”); Seymour M.
Hersh, Moving Targets, NEW YORKER, Dec. 15, 2003, at 48, available at
http://www.newyorker.com/printables/
fact/031215fa_fact (“The Bush Administration has authorized a major escalation of
the Special Forces covert war in Iraq. . . . A new Special Forces group . . . has been
assembled . . . . Its highest priority is the neutralization of the Baathist insurgents, by
capture or assassination.”).
246
See, e.g., John Shattuck, On Abu Ghraib: One Sergeant’s Courage a Model for US
Leaders, CHRISTIAN SCI. MONITOR, May 16, 2005, at 9, available at
http://www.csmonitor.com/2005/0516/p09s02-coop.html; Hersh, supra note 231, at
43 (“The abuses at Abu Ghraib were exposed on January 13th, when Joseph Darby, a
young military policeman assigned to Abu Ghraib, reported the wrongdoing to the
Army’s Criminal Investigations Division. He also turned over a CD full of
photographs. Within three days, a report made its way to Donald Rumsfeld, who
informed President Bush.”).
247
Sherry Ricchiardi, Missed Signals, AM. JOURNALISM REV., Aug./Sept. 2004, at 22,
24 (quoting a release: “An investigation has been initiated into reported incidents of
detainee abuse at a Coalition Forces detention facility. The release of specific
information concerning the incidents could hinder the investigation, which is in its
early stages. The investigation will be conducted in a thorough and professional
manner.”).
248
Barbara Starr, Details of Army’s Abuse Investigation Surface, CNN.COM, Jan. 21,
2004, http://www.cnn.com/2004/US/01/20/sprj.nirq.abuse/ (“U.S. soldiers
reportedly posed for photographs with partially unclothed Iraqi prisoners, a
Pentagon official told CNN on Tuesday . . . Defense Secretary Donald Rumsfeld has
been briefed on the investigation . . . .”).
249
Maher Arar: Timeline, CBC NEWS, Jan. 26, 2007, available at
http://www.cbc.ca/news/background/arar/ (reporting that on January 22, 2004,

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Antonio Taguba was appointed at the request of General Ricardo
Sanchez, the commander of coalition forces in Iraq, to investigate
250
prisoner abuse at Abu Ghraib.
General Taguba completed his report in early March, setting forth
both the “sadistic, blatant and wanton” prisoner abuse by guards and
251
apparent collusion and acquiescence by officers. For reasons that are
still unexplained, the report was classified “Secret,” although the
administration subsequently conceded that this classification was an
252
error.
In the next month, intimations regarding the report began to leak
into the public media, and the administration continued to seek to
suppress them. As fighting raged in Iraq, and the administration
prepared to argue before the Supreme Court for unreviewable power
over detainees, the Chairman of the Joint Chiefs of Staff, General
Richard Myers, personally persuaded CBS news anchor Dan Rather to
delay the network’s broadcast of the pictures and its account of the
253
Taguba report on Abu Ghraib. On the afternoon of April 28, 2004,

Arar filed suit against the U.S. Government); dismissed in part, Arar v. Ashcroft, 414 F.
Supp. 2d 250, 287–88 (E.D.N.Y. 2006).
250
ANTONIO M. TAGUBA, U.S. DEP’T OF DEF., ARTICLE 15-6 INVESTIGATION OF THE
800TH MILITARY POLICE BRIGADE 6 (2004), available at http://www.npr.org/
iraq/2004/prison_abuse_report.pdf [hereinafter TAGUBA REPORT].
251
Id. at 14–20.
252
Torture Report May Have Broken Classification Rules, SECRECY NEWS, May 5, 2004,
available at http://www.fas.org/sgp/news/secrecy/2004/05/050504.html (quoting
Pentagon spokesmen and Secretary Rumsfeld as disavowing any knowledge of why
the report was classified). In response to complaints from transparency advocates, the
Information Security Oversight Office (ISOO) opened an inquiry. FAS Project on
Government Secrecy, ISOO Will Investigate Secrecy of Torture Report, SECRECY NEWS, May
7, 2004, available at http://www.fas.org/sgp/news/secrecy/2004/05/050704.html.
ISOO ultimately generated remedial actions by the Department of Defense. Letter
from J. William Leonard, Dir., Info. Sec. Oversight Office, to Steven Aftergood, Dir.,
Project on Gov’t Secrecy (Oct. 29, 2004), available at http://www.fas.org/sgp/
news/2004/10/isoo102904.pdf. (“[P]ursuant to Section 5.2 of Executive Order
12958, as amended, I have pursued with the Department of Defense (DoD) the issues
you identified in your letter. This is to advise you that I have been informed by DoD
that they have declassified the majority of the classified information [in the Taguba
Report noting a] recent DoD-wide message from the Secretary of Defense
emphasizing command responsibility for holding both original and derivative
classifiers of information accountable for the accuracy of their classification
decisions.”); Memorandum from Sec’y of Def. Donald Rumsfeld, DOD Information
Security Program (Sept. 4, 2004), available at http://www.fas.org/sgp/
bush/secdef091604.pdf (emphasizing importance of not using classification to avoid
“embarrassment” or “conceal violations of law” in memo directed particularly to
“corrective action” regarding “information related to detainees [or] prisoner abuse”).
253
Umansky, supra note 222, at 22 (“As Dan Rather, the segment’s
correspondent, noted, CBS had held the story for two weeks at the request of Richard
Myers, chairman of the joint chiefs of staff, who, citing the major fighting in Fallujah,
a Shiite uprising in Najaf, and two American civilians being held hostage in Iraq, had
argued that the photos would further inflame matters in the region.”); see, e.g., David

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then-Associate Solicitor General Paul Clement, arguing in Rumsfeld v.
Padilla, entered into a colloquy with Justice Ginsburg regarding the
possibility of prisoner abuse, and again disavowed any policy of abusive
254
interrogation. That evening, as the New Yorker magazine prepared to
break the Abu Ghraib story, CBS 60 Minutes II broadcast the story and
255
some of the graphic pictures.
Once breached, the secrecy and dissimulation regarding the pictures
and the Taguba report crumbled. Pictures ricocheted around the globe,
and copies of the Taguba report began to appear on the Internet. By
early May, the administration was reduced to issuing threats of criminal
prosecution for the leakers of the report and sending internal e-mails
adjuring military personnel to “1) NOT GO TO FOX NEWS TO READ
OR OBTAIN A COPY[;] 2) NOT comment on this to anyone[;] 3) NOT
delete the file if you receive it via e-mail, but 4) CALL THE ISD
256
HELPDESK AT 602–2627 IMMEDIATELY.”
3. Transparency Deployed: The Slow March Toward Known Knowns
The outlines of the Abu Ghraib abuses themselves became rapidly
known, but the background of the abuses, the scope of parallel
barbarities, and the broader policies regarding interrogation and
Folkenflik, Iraq Prison Story Tough To Hold Off On, CBS Says, BALT. SUN, May 5, 2004, at
1D.
254
[Justice RUTH BADER GINSBURG]: But if the law is what the executive says
it is, whatever is necessary and appropriate in the executive’s judgment . . . [w]hat
is it that would be a check against torture? . . .
[Justice GINSBURG:] Suppose the executive says mild torture we think will
help get this information. It’s not a soldier who does something against the
Code of Military Justice, but it’s an executive command. Some systems do
that to get information.
Mr. CLEMENT: Well, our executive doesn’t . . . .
Transcript of Oral Argument at 22–23, Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No.
03-1027),
available
at
http://www.supremecourtus.gov/oral_arguments/
argument_transcripts/03-1027.pdf.
The Department of Justice refused to comment on whether Clement was aware of
the abuse at Abu Ghraib. Grieve, supra note 240 (“An employee in Clement’s office
referred a call from Salon last week to Justice Department spokesperson Monica
Goodling. Asked what Clement or Ashcroft knew of the Abu Ghraib situation at the
time of oral arguments in the Hamdi and Padilla cases, Goodling said: “We wouldn’t
have any comment.”).
255
60 Minutes II (CBS television broadcast Apr. 28, 2004) (transcript on file with
the Lewis & Clark Law Review); see Seymour M. Hersh, Torture at Abu Ghraib, NEW
YORKER, May 10, 2004, at 42, 43, available at http://www.newyorker.com/
fact/content/articles/040510fa_fact?040510fa_fact (quoting from a copy of the
Taguba report “obtained by The New Yorker,” describing some of the graphic abuses);
cf. Sewell Chan & Jackie Spinner, Allegations of Abuse Lead to Shakeup at Iraqi Prison,
WASH. POST, Apr. 30, 2004, at A24 (describing abuses and the content of “sealed
charging papers”).
256
E-mail from Information Services Customer Liaison, U.S. Dep’t of Defense, to
All ISD Customers, U.S. Dep’t of Defense (May 6, 2004), available at
http://www.time.com/time/world/article/0,8599,634637,00.html.

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detainee treatment were less transparent. Under the pressure of
worldwide condemnation, the administration in turn decried the specific
abuses and abusers at Abu Ghraib, and the CIA, the Defense
257
Department, and the FBI embarked on internal investigations.
Inquiries in the Republican-controlled Congress, however, were met with
a combination of disingenuous disavowals, misleading misdirection, and
258
outright obstruction.

257

For a discussion of the CIA investigation, see ACLU v. Dep’t of Def., 351 F.
Supp. 2d 265, 268 (S.D.N.Y. 2005) (“[O]n May 11, 2004, the CIA’s Office of Inspector
General (the ‘OIG’) ‘commenced a criminal investigation of allegations of
impropriety in Iraq.’”).
For a discussion of the DoD investigation, see Michael Hirsh & John Barry, The
Abu Ghraib Scandal Cover-Up?, NEWSWEEK, June 7, 2004, at 34, available at
http://www.newsweek.com/id/53972 (describing apparently cursory Defense
department investigations and efforts to silence witnesses to Abu Ghraib abuses).
For a discussion of the FBI investigations, see, e.g., Letter from T. J. Harrington,
Deputy Ass’t Dir., Counterterrorism Div., FBI, to Maj. Gen. Donald J. Ryder, Criminal
Investigation Command, U.S. Dep’t of the Army (July 14, 2004), available at
http://www.aclu.org/torturefoia/released/010505.html
(detailing
prior
FBI
complaints); E-mail regarding GTMO-Related E-mails, Notes, etc. (May 10, 2004),
available at http://www.aclu.org/torturefoia/released/FBI_4142.pdf (directing BAU
members to preserve backup data); R. Jeffrey Smith, Justice Redacted Memo on Detainees:
FBI Criticism of Interrogations Was Deleted, WASH. POST, Mar. 22, 2005 at A3 (referring to
a different May 10, 2004, FBI memo documenting a chronology of prior FBI
objections to abusive interrogation); Mark Isikoff & Mark Hosenball, Has the
Government
Come
Clean?,
NEWSWEEK,
Jan.
5,
2005,
available
at
http://www.newsweek.com/id/48419 (“After Mueller’s testimony [on May 20, 2004],
[FBI spokesman Michael] Kortan said the FBI general counsel’s office began a more
systematic effort to document the abuses that had been recorded by its agents in Iraq,
Afghanistan and Guantanamo. The result was a flood of alarming reports . . . .”).
258
See, e.g., Isikoff & Hosenball, supra note 257 (describing May 2004 testimony
from the FBI Director as “confusing” and “obfuscatory”); Hirsh & Barry, supra note
257, at 36 (“On Capitol Hill, legislators on both sides of the aisle complain testily that
the Pentagon has turned into an informational black hole. Some 2,000 out of 6,000
pages were missing from the copy of the Taguba report delivered from the Pentagon
to the Senate Armed Services Committee. Pentagon spokesman Larry DiRita last week
called this merely an ‘oversight.’”); Press Release, Reaction of Sen. Patrick Leahy to
Attorney General Ashcroft’s Refusal to Provide Memos on Torture Policy (June 8,
2004), available at http://leahy.senate.gov/press/200406/060804a.html; see also
DEMOCRATIC STAFF OF H. COMM. ON THE JUDICIARY, THE CONSTITUTION IN CRISIS: THE
DOWNING STREET MINUTES AND DECEPTION, MANIPULATION, TORTURE, RETRIBUTION,
AND COVERUPS IN THE IRAQ WAR 149–50 (2005) available at http://rawstory.com/
other/conyersreportrawstory.pdf (describing thwarted efforts to seek information on
approval of abusive interrogation in the aftermath of Abu Ghraib disclosures).
The prospect of exposure may have generated some positive change in the CIA’s
detention program. On May 28, 2004, Khalid El-Masri was released. See El-Masri v.
Tenet, 437 F. Supp. 2d 530, 534 (E.D. Va. 2006) (filed Dec. 6, 2005; dismissed on
state secrets privilege ground on May 12, 2006) (“El-Masri says he remained
imprisoned in Kabul until May 28, 2004, after which he was flown in a private jet,
again blindfolded, from Kabul to Albania, where he was deposited by his captors on
the side of an abandoned road.”), aff’d, 479 F.3d 296 (4th Cir. 2007).

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With congressional investigation stymied, other mechanisms started
to fill in the picture. In May and June 2004, internal whistleblowers began
to disseminate to the media and the Internet both legal memoranda
authorizing abusive interrogation, and the supporting documents of the
259
Taguba report. Ultimately, in late June, the administration officially
260
released some of the memoranda.
Based on these disclosures, the ongoing public controversy, and the
emerging hints of documentary evidence, on May 25, 2004, the ACLU
coalition renewed its October 2003 FOIA requests regarding detainee
261
abuse, this time seeking specific documents identified in the media.
The coalition filed suit a week later in the Southern District of New York,
beyond the precedential reach of the D.C. Circuit’s CNSS opinion, to
262
compel processing and production. The Department of Justice, in
259
E.g., Barry, Hirsh & Isikoff, supra note 207, at 29 (describing memoranda);
Jess Bravin, Pentagon Report Set Framework for Use of Torture; Security or Legal Factors Could
Trump Restrictions, Memo to Rumsfeld Argued, WALL ST. J., June 7, 2004, at A1 (reporting
contents of memoranda); Morning Edition: Ashcroft Won’t Release Torture Memos to Senate
(NPR radio broadcast June 9, 2004), recording available at http://www.npr.org/
templates/story/story.php?storyId=1950677 (at 1:00) (“The memorandum, first
reported by The Wall Street Journal on Monday, has since been obtained by NPR and
is on the NPR Web site.”); Dana Priest & R. Jeffrey Smith, Memo Offered Justification for
Use of Torture; Justice Dept. Gave Advice in 2002, WASH. POST, June 8, 2004, at A1
(reporting on the August 2002 Bybee memo); Opinion, Tormented Truths; Secrecy
Obscures Why Administration Sought Memos on Uses of Torture, NEWSDAY, June 10, 2004, at
A42; Osha Gray Davidson, The Secret File of Abu Ghraib, ROLLING STONE, July 28, 2004,
available
at
http://www.rollingstone.com/politics/story/
6388256/the_secret_file_of_abu_ghraib/ (describing Taguba report appendices
leaked to the author in June, but not posting them); see Alexander Cohen, The Abu
Ghraib Supplementary Documents, CENTER FOR PUB. INTEGRITY, Oct. 8, 2004, available at
http://www.publicintegrity.org/report.aspx?aid=396&sid=100
(posting
files
forwarded by Osha Gray Davidson after reviewing them for sensitive information
October 8, 2004).
260
Nat’l Sec. Archive, The Interrogation Documents: Debating U.S. Policy and
Methods (July 13, 2004), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127
(compiling documents, and describing leaks, culminating in partial releases of
documents by the White House and Defense Department).
261
Letter from Lawrence S. Lustberg to H.J. McIntyre, Dir., Directorate for
Freedom of Info. & Sec. Review, U.S. Dep’t of Def. (May 25, 2004), available at
http://www.aclu.org/torturefoia/legaldocuments/jjACLUSecondFOIArequest.pdf
(requesting records regarding the treatment of post-September 11 detainees).
262
Complaint, ACLU v. Dep’t of Def., 339 F. Supp. 2d 501 (S.D.N.Y. 2004) (No.
04-CV-4151
(AKH)),
available
at
http://ccrjustice.org/files/
CCR_ACLU_FOIATortureComplaint.pdf ACLU, Responsive Records Specifically
Identified in Plaintiffs’ May 25, 2004 Torture FOIA Request, http://www.aclu.org/
torturefoia/Documents_081604.pdf (table of identified documents).
Under FOIA, venue lies in the district in which the claimant resides as well as the
District of Columbia of the location of the requested records. Freedom of
Information Act, 5 U.S.C. § 552(a)(4)(B) (2000).
Other NGOs also began to deploy FOIA to bring detainee abuses to light. See, e.g.,
Photos of Iraqi Prisoner Abuse Sought Under FOIA, SECRECY NEWS, May 12, 2004, available
at http://www.fas.org/sgp/news/secrecy/2004/05/051204.html; Human Rights
First, Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan,

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which the FBI was marshaling the record of its objections to abuses,
granted expedited processing on June 2, 2004. The State Department,
which had opposed suspension of the Geneva Conventions, followed suit
on June 18, 2004, although neither agency was able to provide a schedule
263
for that processing. The Defense Department, joined by the CIA,
however, again saw no “compelling need” in the request and denied
264
expedited processing on June 21, 2004. On June 28, 2004, the Supreme
Court issued its opinions rebuffing the administration in Hamdi and
Rasul, and reaffirming that “a state of war is not a blank check for the
265
President.” On July 6, 2004, the ACLU filed an amended FOIA
complaint and a motion for preliminary relief.
After a month and a half of motion practice and negotiation, the
matter came for a hearing before Judge Alvin Hellerstein in the Southern
District of New York. Judge Hellerstein was unsympathetic to what he
referred to as the government’s “scant production,” its delaying tactics,
266
and its claims of national security as justification for the delay. Setting a
deadline of October 15, 2004 for the production or identification of
responsive documents, Judge Hellerstein observed:
[T]he glacial pace at which defendant agencies have been
responding to plaintiffs’ requests shows an indifference to the
commands of FOIA, and fails to afford accountability of
government that the act requires. If the documents are more of an
embarrassment than a secret, the public should know of our
government’s treatment of individuals captured and held abroad.
“[H]istory and common sense teach us that an unchecked system of
http://www.humanrightsfirst.org/us_law/etn/dic/index.asp; Human Rights First,
Human Rights First’s Freedom of Information Act Requests Relating to Deaths in Custody,
http://www.humanrightsfirst.org/us_law/etn/dic/foia.asp; Sam Hananel, Amnesty
Int’l Seeks Military’s Taser Files, ASSOCIATED PRESS, Nov. 30, 2004 (reporting an Amnesty
International FOIA request regarding the use of Tasers in Iraq and Afghanistan).
263
Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction at 5
n.2, ACLU v. Dep’t of Def., 339 F. Supp. 2d 501 (S.D.N.Y. 2004) (No. 04-CV-4151
(AKH)),
available
at
http://www.aclu.org/torturefoia/legaldocuments/
ffACLUExpProcMemo.pdf.
264
Letter from C.Y. Talbott, Chief, Office of Freedom of Info. and Sec. Rev., U.S.
Dep’t of Def., to Jennifer Ching, Att’y for ACLU (June 21, 2004), available at
http://www.aclu.org/torturefoia/legaldocuments/iiDODDenyExpProc.pdf.
265
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); Rasul v. Bush, 542 U.S. 466
(2004); cf. Rumsfeld v. Padilla, 542 U.S. 426 (2004). It appears that the Justices were
cognizant of the mounting tide of disclosures regarding the administration’s abuses.
See Grieve, supra note 240 (“Justices Anthony Kennedy and Sandra Day O’Connor
met with a panel of Iraqi judges in the Netherlands earlier this month, and they said
afterward that they had conveyed to the Iraqis—subtly, for fear of exposing any bias
in court-martial cases to come—their concern over the Abu Ghraib abuses. In a
follow-up interview with the Associated Press, Kennedy said the Iraqi judges ‘innately
knew, instinctively knew, how concerned we were’ about what happened at Abu
Ghraib.”).
266
ACLU v. Dep’t of Def., 339 F. Supp. 2d 501, 503–04 (S.D.N.Y. 2004); see id. at
502 (“Ours is a government of laws . . . . No one is above the law . . . .”); id. at 504
(“Merely raising national security concerns can not justify unlimited delay.”).

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detention carries the potential to become a means for oppression
267
and abuse.”

As it moved to respond to Judge Hellerstein’s deadline, one might
have expected that the administration would claim the right to withhold
documents on the basis of national security under FOIA Exemption 1
that had proven so efficacious in beating back efforts to uncover
information concerning the use of the Patriot Act. The administration
had, after all, classified the Taguba report and threatened to prosecute
those who had leaked it, and it could rely on precedent according
“special deference” to the government’s expertise regarding national
security. But no such claims were raised.
The full reason for this uncharacteristic restraint remains unclear,
but traces of an answer emerge in the public record. William Leonard,
Director of the Information Security Oversight Office which has
responsibility for monitoring and reviewing government decisions and
policies regarding classified national security information, had been
appointed by President Bush in 2002, after a career that included service
268
at the head of the Pentagon’s Information Security program. In May of
2004, as the Abu Ghraib story broke, open government activists officially
269
requested that he investigate the classification of the Taguba report.
Mr. Leonard, who had served on the Interagency Security Classification
Appeals Panel, apparently took the request seriously. According to one
report, he “made a personal visit to the Defense Department to ask why
elements of Maj. Gen. Antonio Taguba’s report on the abuse of prisoners
in Iraq had been classified,” commenting, “On the surface, they gave the
appearance that the classification was used to conceal violations of law
270
which is specifically prohibited.” In July 2004, Mr. Leonard publicly
challenged the classification of portions of the Working Group report
271
In apparent response to Mr.
authorizing coercive interrogation.
267

Id. at 504–05 (quoting Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).
Information Security Oversight Office, Director J. William Leonard,
http://www.archives.gov/isoo/about/director.html; see Classified National Security
Information, Exec. Order No. 12,958, 68 Fed. Reg. 15,315 (Mar. 28, 2003), available at
http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.html#part-5
(setting forth authority of ISOO).
269
ISOO Will Investigate Secrecy of Torture Report, SECRECY NEWS, May 7, 2004,
available at http://www.fas.org/sgp/news/secrecy/2004/05/050704.html; see also
Classified National Security Information, 68 Fed. Reg. at 15,327 (The ISOO has
authority to “require of each agency those reports, information, and other
cooperation that may be necessary to fulfill its responsibilities” and “consider and
take action on complaints and suggestions from persons within or outside the
Government with respect to the administration of the program established under this
order.”).
270
Paul Shukovsky, U.S. Moves to Classify Abuse Suit Documents, SEATTLE POSTINTELLIGENCER, June 24, 2004, at A1.
271
Shaun Waterman, Pentagon Classifying “Impulse” Criticized, WASH. TIMES, July 8,
2004, at A6. (reporting on Leonard’s demand for an explanation of classification of
the observation that, “Consideration must be given to the public’s reaction to
268

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Leonard’s efforts, on September 16, 2004, Secretary Rumsfeld distributed
a memorandum calling for “corrective action . . . at DoD components
that generate information related to detainees and prisoner abuse” to
272
eschew the use of classification to conceal violations of law. Because
Exemption 1 can be invoked only where government officials certify that
material is properly classified, it appears that Mr. Leonard’s integrity
precluded the “national security” gambit before Judge Hellerstein.
On October 14, 2004, the administration released the first 6,000
273
pages of documents, including the annexes to the Taguba report.
Partially redacted FBI memoranda documenting both military
interrogation abuses and the FBI’s tabled objections to them began to
274
emerge in December 2004 after the presidential election, along with a
275
tide of other evidence of abusive policies. The flow of documents has
not slackened in the subsequent three years. As motion practice
methods of interrogation that may affect the military commission process. The more
coercive the method, the greater the likelihood that the method will be met with
significant domestic and international resistance.”).
272
Memorandum from Sec’y of Def. Donald Rumsfeld, DOD Information
Security Program (Sept. 16, 2004), available at http://www.fas.org/sgp/bush/
secdef091604.pdf (“It is important to state that classifiers shall not: a) use
classification to conceal violations of law, inefficiency, or administrative error; b)
classify information to prevent embarrassment to a person, organization, or agency;
c) classify information to prevent or delay the release of information that does not
require protection in the interest of national security.”); see Letter from J. William
Leonard, Dir., Info. Sec. Oversight Office, to Steven Aftergood, Dir., Project on Gov’t
Secrecy (Oct. 29, 2004), available at http://www.fas.org/sgp/news/2004/10/
isoo102904.pdf (noting declassification of Taguba report after Leonard’s having
“pursued” the issue with the Department of Defense, and noting a series of “ancillary
initiatives” to enhance “command responsibility” and “reinforce sound
classification”).
273
See Press Release, ACLU, Federal Government Turns Over Thousands of
Torture Documents to ACLU (Oct. 21, 2004), available at http://www.aclu.org/
intlhumanrights/gen/13803prs20041021.html. Many of the documents are available
at http://www.aclu.org/torturefoia/released/101504.html.
274
See, e.g., Press Release, ACLU, FBI E-Mail Refers to Presidential Order
Authorizing Inhumane Interrogation Techniques (Dec. 20, 2004), available at
http://www.aclu.org/safefree/general/18769prs20041220.html; Isikoff & Hosenball,
supra note 257 (“The result was a flood of alarming reports that have now been
turned over to the American Civil Liberties Union in its Freedom of Information
lawsuit seeking the release of government documents on the treatment of prisoners.
The release of these documents has exacerbated tensions between the FBI and the
Pentagon over the issue. Defense officials have privately complained that bureau
officials affirmatively decided to turn over the documents in the lawsuit in order to
protect itself from charges that it was complicit in the improper treatment of
prisoners. ‘This is cover [your] a---- at its finest,’ one Pentagon official told
NEWSWEEK.”). FBI documents released in the first wave had been almost entirely
redacted. See Press Release, ACLU, supra note 273.
275
See ACLU, Torture Documents Released Under FOIA, http://www.aclu.org/
safefree/torture/torturefoia.html (reflecting waves of released documents released
from 2005 to 2007, including “reprocessed” documents where redacted material was
restored under pressure); ACLU, List of FOIA Releases, http://www.aclu.org/
safefree/torture/logs.html (same for 2004 to 2005).

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continued before Judge Hellerstein, by the end of 2006 the New York
litigation had resulted in the release of over 100,000 pages of
276
documents.
The process was a matter of trench warfare as administration lawyers
tenaciously sought to delay and excuse production, while attorneys from
the ACLU, augmented by trial practitioners from the private sector,
277
doggedly pressed for disclosure. In these battles, in September 2005,
Judge Hellerstein reluctantly accepted the CIA’s claim that revealing the
presence or absence of a memorandum granting authority to set up
detention facilities would “reveal intelligence sources or methods,” but
he required the CIA to reveal the existence of an OLC memorandum to
278
the CIA interpreting the Convention Against Torture.
At the same time, Judge Hellerstein rejected the Defense
Department’s efforts to withhold from public disclosure photographs
and videotapes depicting abuse of detainees, in particular the contents of
the compact disc that specialist Darby had used to expose the abuses at
276

Press Release, ACLU, FBI Inquiry Details Abuses Reported by Agents at
Guantanamo (Jan. 3, 2007), available at http://www.aclu.org/safefree/
torture/27816prs20070103.html. The ACLU has provided a searchable data base of
the documents at http://www.aclu.org/torturefoia/search/search.html.
277
ACLU v. Dep’t of Def., No. 04 Civ. 4151 (AKH), 2004 U.S. Dist. LEXIS 24387,
at *2–4 (S.D.N.Y. Dec. 2, 2004) (ordering briefing schedule, identification of
documents, and processing by the Defense Department at the rate of 10,000
documents per month); ACLU v. Dep’t of Def., 351 F. Supp. 2d 265, 277 (S.D.N.Y.
2005) (refusing CIA request for stay of identification order, because investigation of
impropriety was being carried out by the CIA Inspector General); id. (commenting
that “Congress has set the laws, and it is the duty of executive agencies to comply with
them”); ACLU v. Dep’t of Def., 357 F. Supp. 2d 708, 709–10 (S.D.N.Y. 2005) (refusing
to allow stay pending appeal of order to CIA, characterizing CIA’s position as
“implausible”); ACLU v. Dep’t of Def., 389 F. Supp. 2d 547, 554 (S.D.N.Y. 2005)
(upholding withholding of Red Cross documents under exemption 3); id. at 556,
568–69 (accepting a Defense Department representation that it could not find
documents which had been identified in the media); id. at 567–68 (accepting
redactions based on in camera review of taking a twenty percent sample of the
redacted documents for in camera examination, and accepting redactions).
278
ACLU, 389 F. Supp. 2d at 561, 564–65 (lamenting that “[t]he danger of
Glomar responses is that they encourage an unfortunate tendency of government
officials to over-classify information, frequently keeping secret that which the public
already knows, or that which is more embarrassing than revelatory of intelligence
sources or methods,” and observing that “[t]he discussions of these documents in the
public press, undoubtedly arising from numerous leaks of the documents, raise
concern, however, that the purpose of the CIA’s Glomar responses is less to protect
intelligence activities, sources or methods than to conceal possible ‘violations of law’
in the treatment of prisoners, or ‘inefficiency’ or ‘embarrassment’ of the CIA,” but
concluding that “there is small scope for judicial evaluation in this area”); ACLU v.
Dep’t of Def., 396 F. Supp. 2d 459, 462 (S.D.N.Y. 2005) (denying reconsideration by
CIA of order requiring disclosure by CIA of memorandum regarding Convention
Against Torture); ACLU v. Dep’t of Def., 406 F. Supp. 2d 330, 332–33 (S.D.N.Y. 2005)
(denying reconsideration of order allowing Glomar response by plaintiffs on the basis
of further admissions by the CIA that the agency involved itself in detainee
interrogations).

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Abu Ghraib. As they had in the CNSS litigation, and as they were doing
contemporaneously in the Associated Press Guantanamo transcript
litigation, the administration’s lawyers sought to invoke the privacy rights
of the victims of abuses as a basis for refusing disclosure, claiming that
disclosure of the photographs would constitute an “unwarranted invasion
279
of personal privacy” under FOIA Exemptions 6 and 7(C). Judge
Hellerstein began by observing he had ordered the redaction of
identifying features of the photographs, and that with such redactions,
publication of personally unidentifiable photographs would invade no
280
cognizable privacy interests. More importantly, he held, any invasion of
281
privacy interests would not be “unwarranted.” Given the conceded
wrongdoing, the ongoing public discussion of previously leaked photos,
and the importance of “debate about the causes and forces that led to
the breakdown of command discipline at Abu Ghraib prison and,
possibly, by extension, to other prisons in Iraq, Afghanistan,
Guantanamo, and perhaps elsewhere,” disclosure “coheres with the
central purpose of FOIA, to ‘promote honest and open government and
to assure the existence of an informed citizenry [in order] to hold the
282
governors accountable to the governed.’”
Judge Hellerstein closed by addressing what he referred to as the
government’s “eleventh-hour” argument, raised two months after the
initial argument of the motions in the case, that the photographs were
exempt from disclosure under FOIA Exemption 7(F) because disclosure
“could reasonably be expected to endanger the life or safety of any
283
individual.” Relying on an affidavit from General Myers (who had
persuaded Dan Rather to delay publication of the Abu Ghraib story a
year and a half earlier), the administration maintained that publication
of the photographs was “likely to incite violence against our troops and
284
Iraqi and Afghan personnel and civilians.” The administration argued
that once any possibility of violence could be shown, the wording of
Exemption 7(F) precluded any countervailing justification for disclosure.
285
Judge Hellerstein firmly rebuffed the administration’s gambit.
As a matter of fact, Judge Hellerstein evidenced skepticism that
release of the photographs would discernibly increase the danger to
American lives or safety:
279

ACLU, 389 F. Supp. 2d at 569.
Id. at 572.
281
Id. at 571.
282
Id. at 573–74 (partially quoting National Council of La Raza v. Dep’t of Justice,
411 F.3d 350, 355 (2d Cir. 2005), in which the Second Circuit four months earlier
had rejected an administration effort to avoid disclosing an OLC legal opinion
regarding the use of local authorities in immigration enforcement). Judge
Hellerstein relied as well on the balancing of privacy and accountability interests in
National Archives & Records Administration v. Favish, 541 U.S. 157 (2004).
283
ACLU, 389 F. Supp. 2d at 574 (quoting 5 U.S.C. § 552(b)(7)(F)).
284
ACLU, 389 F. Supp. 2d at 575.
285
Id.
280

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The terrorists in Iraq and Afghanistan do not need pretexts for
their barbarism; they have proven to be aggressive and pernicious
in their choice of targets and tactics. . . . With great respect to the
concerns expressed by General Myers, my task is not to defer to our
worst fears, but to interpret and apply the law, in this case, the
Freedom of Information Act, which advances values important to
286
our society, transparency and accountability in government.

As a matter of law, Judge Hellerstein held that Exemption 7(F) could not
be read to defeat the underlying purposes of FOIA, and that the
possibility of hostile reaction would not “blackmail” the court into
suppressing evidence that could spark accountability for substantial
287
wrongdoing. Turning the question of patriotism of the administration,
he wrote:
Publication of the photographs is central to the purposes of FOIA
because they initiate debate, not only about the improper and
unlawful conduct of American soldiers . . . but also about other
important questions as well—for example, the command structure
that failed to exercise discipline over the troops, and the persons in
that command structure whose failures in exercising supervision
may make them culpable along with the soldiers who were courtmartialed . . . .
The fight to extend freedom has never been easy, and we are once
again challenged, in Iraq and Afghanistan, by terrorists who engage
in violence to intimidate our will and to force us to retreat. Our
struggle to prevail must be without sacrificing the transparency and
accountability of government and military officials. These are the
values FOIA was intended to advance, and they are at the very heart
288
of the values for which we fight . . . .

In March of 2006, while an appeal from Judge Hellerstein’s order
was pending, the online publication Salon obtained copies of contested
289
Abu Ghraib photos and published them on the Internet. Two weeks
later, the administration abandoned its appeal and identified the Salon
290
The release of the photographs had no
photos as authentic.
discernable effect on the welfare of American forces at home or abroad,
nor, it must be admitted, on the quest for accountability.

286

Id. at 576.
Id. at 575–76.
288
Id. at 578; see ACLU v. Dep’t of Def., No. 04 Civ. 4151 (AKH), 2006 U.S. Dist.
LEXIS 40894, at *3 (S.D.N.Y. June 21, 2006) (ordering release of one further
redacted photograph).
289
Joan Walsh, The Abu Ghraib Files, SALON.COM, Mar. 14, 2006,
http://www.salon.com/news/abu_ghraib/2006/03/14/introduction/.
290
Mark Benjamin & Michael Scherer, U.S. Agrees To Release Abu Ghraib Photos,
SALON.COM, Mar. 29, 2006, http://www.salon.com/news/feature/2006/03/29/
aclu_abu_ghraib/; Josh White, Government Authenticates Photos From Abu Ghraib, WASH.
POST, Apr. 11, 2006, at A16.
287

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4. Sunlight and Disinfection?
While their policies remained in shadow, administration apologists
shaped public discourse by touting disavowals of “torture,” portraying
291
particular leaks as “rumor, innuendo, and assertions,” and denigrating
292
critics as “either uninformed, misinformed or poorly informed.” After
October 2004, these ploys became less effective. FOIA had not served to
reveal “unknown unknowns,” but to authenticate leaks that established
the existence of “known unknowns.” As documents finally began to
emerge in the ACLU coalition litigation before Judge Hellerstein, the
patterns of abusive interrogation began to move from the realm of
speculation to the realm of fact in public debate. It is difficult (though
not impossible) to characterize a hard copy of an FBI e-mail, or
memorandum to a top Defense Department aide from the Defense
Intelligence Agency as the “breathless” effusions of soft-headed
293
alarmists. When the strained and parsimonious definition of “torture”
is available verbatim in black and white, it becomes harder (though again
not impossible) to use verbal misdirection as a means of deflecting
294
critique.
The ACLU took advantage of emerging technology and the
resources of its law firm partners to highlight the solidity of the
evidentiary pieces as they were pried loose. It issued regular press releases
highlighting the most striking items. But it also backed up its claims with
copies of the revelatory documents available to the world on its website,
and made the entire documentary corpus available in searchable form.
As well as providing authentication, this approach allowed the public
access to the haphazard and obfuscatory patterns of redactions as they
took place.
The documents released in what the ACLU labeled its “Torture
FOIA” litigation formed the basis for a gathering series of accounts in the
mainstream media highlighting both the barbarity of the practices and
the implausibility of administration denials of knowledge and
291

Press Release, U.S. Dep’t of Def., Statement from Pentagon Spokesman
Lawrence DiRita on Latest Seymour Hersh Article (Jan. 17, 2005), available at
http://www.defenselink.mil/releases/release.aspx?releaseid=8134.
292
Richard A. Serrano & John Hendren, Rumsfeld Strongly Denies Mistreatment of
Prisoners, L.A. TIMES, Jan. 23, 2002, at A1.
293
For one reported attempt by Alberto Gonzales, see Eric Lichtblau, Justice Dept.
Opens Inquiry Into Abuse of U.S. Detainees, N.Y. Times, Jan. 14, 2005, at A20 (“Alberto R.
Gonzales . . . said the administration did not condone torture of prisoners in
American custody. . . . Mr. Gonzales expressed skepticism about some details in the
bureau’s internal reports, pointing to one e-mail message from an agent in Iraq that
cited a supposed executive order from President Bush authorizing abusive
techniques. . . . He said: ‘That never occurred. And so, if something like that is wrong
in these e-mails, there may be other facts that are wrong in the e-mails.’”).
294
Cf. 151 CONG. REC. S699 (daily ed. Feb. 1, 2005), (statement of Sen. Feinstein)
available at http://feinstein.senate.gov/05speeches/cr-gonzales.htm (quoting
Gonzales as taking the position that torture is forbidden but there is no prohibition
of “cruel, inhuman or degrading treatment” of aliens overseas).

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295

responsibility. The revelation of the FBI reports triggered internal
296
investigations by the Department of Justice Inspector General and a
297
specially commissioned Army investigation team, as well as hearings by
295

E.g., Barton Gellman & R. Jeffrey Smith, Report to Defense Alleged Abuse By Prison
Interrogation Teams, WASH. POST, Dec. 8, 2004, at A1 (“The American Civil Liberties
Union released 43 [documents] after compelling the Bush administration to provide
them—many still heavily censored—in a lawsuit under the Freedom of Information
Act.”); R. Jeffrey Smith & Dan Eggen, New Papers Suggest Detainee Abuse Was Widespread,
WASH. POST, Dec. 22, 2004, at A1 (“The details of the abuse appeared to catch some
administration officials by surprise, although five agencies for weeks have been
culling releasable records from their files, under an agreement worked out by U.S.
District Judge Alvin K. Hellerstein.”); Isikoff & Hosenball, supra note 257 (“[A] stack
of newly disclosed and startling FBI documents recording agents’ reports about
serious abuses at [Gitmo] have been released largely as a result of a [FOIA] lawsuit
brought by the [ACLU] in New York.”); Nat Hentoff, What Did Rumsfeld Know?,
VILLAGE VOICE, Jan. 11, 2005, at 22 (“But now, with the release by the ACLU of actual
government documents not intended for the public to see, the president is
confronted with irrefutable evidence of continued violations of not only the 1949
Geneva Conventions and the U.N. Convention Against Torture, but also our own
torture statute forbidding such practices.”); Schmitt & Marshall, supra note 197
(“Some of the serious accusations against Task Force 6-26 have been reported over
the past 16 months by news organizations including NBC, The Washington Post and
The Times. Many details emerged in hundreds of pages of documents released under
a [FOIA] request by the [ACLU].”).
296
Eric Lichtblau, Justice Dept. Opens Inquiry Into Abuse of U.S. Detainees, N.Y. TIMES,
Jan. 14, 2005, at A20 (“In a letter to the Justice Department inspector general on Dec.
21, [2004,] after the first batches of documents from the [ACLU] became public,
Representative John Conyers Jr. of Michigan, the ranking Democrat on the House
Judiciary Committee, and five other lawmakers, all Democrats, made an ‘urgent
request’ for the office to investigate the reports of torture and to determine how
presidential or military directives played into such tactics. Glenn A. Fine, the
inspector general at the Justice Department, responded on Jan. 4 , [2005,] saying that
his office had already begun ‘examining the involvement of [the] Federal Bureau of
Investigation.’”). The investigation had still not concluded two years later. OFFICE OF
THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, REPORT TO CONGRESS ON IMPLEMENTATION
OF SECTION 1001 OF THE USA PATRIOT ACT, at 11 (Mar. 2007), available at
http://www.usdoj.gov/oig/special/s0703/final.pdf (“The OIG is reviewing FBI
employees’ observations and actions regarding alleged abuse of detainees at
Guantanamo Bay, Abu Ghraib prison, and other venues controlled by the U.S.
military. . . . The OIG investigative team is in the process of drafting the report
summarizing the results of the investigation.”).
297
U.S. DEP’T OF THE ARMY, ARMY REGULATION 15-6: FINAL REPORT—INVESTIGATION
INTO FBI ALLEGATIONS OF DETAINEE ABUSE AT GUANTANAMO BAY, CUBA DETENTION
FACILITY
(2005),
available
at
http://www.defenselink.mil/news/Jul2005/
d20050714report.pdf [hereinafter Schmidt/Furlow Report] (submitting report of
investigation of abuse by military personnel, triggered by FOIA releases, but avoiding
comment on legality of guidance from Secretary of Defense). Military investigations
had not infrequently proven to be less than aggressive, and other FOIA inquiries had
revealed this quality. See, e.g., Mark Benjamin & Michael Scherer, A Miller Whitewash?,
SALON.COM, Apr. 25, 2006, http://www.salon.com/news/feature/2006/04/25/
miller/ (giving an account of a Dec. 20, 2005 Army Inspector General report,
revealed by a FOIA inquiry, which distinguished between “briefing” and “discussions”
in order to exonerate General Geoffrey Miller from allegations that he lied to
Congress when he stated that “he had ‘no direct discussions’” with Rumsfeld aide

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298

Congress.
Under congressional scrutiny, the Defense Department
General Counsel rescinded the 2003 Working Group Report which had
299
authorized coercive interrogation.
The weight of documents released in the Torture FOIA litigation
provided leverage for further inquiry by skeptical members of Congress
300
Synergistically, congressional inquiry
in confirmation hearings.
extracted materials which had been redacted from the initial Torture
301
FOIA disclosures.
Stephen Cambone about Abu Ghraib); cf. Josh White, Bad Advice Blamed for Banned
Interrogation Tactics, WASH. POST, June 17, 2006, at A16 (“Pentagon officials released a
heavily redacted version of [Army General] Formica’s [investigation] report Friday,
more than a year and a half after its completion, as part of its response to a [FOIA]
lawsuit from the [ACLU]. The final report was issued on Nov. 8, 2004, and Pentagon
officials briefed members of Congress last year on its contents.”).
298
E.g., Hearing on Guantanamo Bay Detainee Treatment Before the S. Armed Servs.
Comm., 108th Cong. (July 13, 2005) (opening remarks of Sen. Warner) (“Today we
meet to receive the testimony of the U.S. Southern Command investigation into the
e-mails that came to light as a consequence of a FOIA request in December of
2004.”).
299
Josh White, Military Lawyers Fought Policy on Interrogations, WASH. POST, July 15,
2005, at A1 (reporting a March 17, 2005 memo “that rescinded the working group’s
report”).
300
United States Senate Committee on the Judiciary, Notice of Committee
Hearing, Hearing Before the Senate Judiciary Committee on “Detainees” (June 8,
2005), available at http://judiciary.senate.gov/hearing.cfm?id=1542; Press Release,
Sen. Carl Levin, Statement of Senator Carl Levin on the Nomination of Judge
Michael Chertoff to be Secretary of Homeland Security (Feb. 14, 2005), available at
http://levin.senate.gov/newsroom/release.cfm?id=232095 (relying on Torture FOIA
disclosures to cross-examine Michael Chertoff on confirmation).
The OLC memorandum approving a narrow definition of “torture” was
rescinded in the immediate aftermath of its disclosure in the aftermath of the Abu
Ghraib disclosures. See Jeffrey Rosen, Conscience of a Conservative, N.Y. TIMES, Sept. 9,
2007, (Magazine), available at http://www.truthout.org/docs_2006/090407E.shtml
(“In April 2004, however, Goldsmith’s priorities were reversed when the Abu Ghraib
scandal broke.” In June 2004, “Yoo’s August 2002 opinion was leaked to the media.
. . . A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew the
opinion.”); JACK GOLDSMITH, THE TERROR PRESIDENCY 156–62 (2007) (describing
incentive to “rectify” an “egregious and now public error,” “precipitated” by “public
outcry”).
The prospect of cross-examination of Gonzales on the basis of the Torture FOIA
materials surely contributed to the incentives to issue a public replacement for the
memorandum on December 30, 2004. See Memorandum from Daniel Levin, Acting
Ass’t Att’y Gen., Office of Legal Counsel, U.S. Dep’t of Justice, to Deputy Att’y Gen.,
U.S. Dep’t of Justice (Dec. 30, 2004), available at http://www.usdoj.gov/olc/
18usc23402340a2.htm; see also Daniel Klaidman, Stuart Taylor Jr. & Evan Thomas,
Palace Revolt, NEWSWEEK, Feb 6, 2006, at 34 (describing the “fierce behind-the-scenes
bureaucratic fight” leading up to the December 2004 memo).
301
See Letter from William E. Moschella, Office of Legislative Affairs, U.S. Dep’t
of Justice, to Sen. Carl Levin, Comm. on Homeland Security & Governmental Affairs
(Mar. 18, 2005), available at http://levin.senate.gov/newsroom/supporting/2005/
DOJ.032105.pdf (producing un-redacted versions of previously redacted material,
including the statement that FBI agents viewed material obtained by coercion at
Guantanamo as “suspect at best”).

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Material obtained by the Torture FOIA litigation figured
prominently in the debates leading to the adoption of the McCain anti302
torture amendment in December 2005. The documents provided
substance for legal actions filed in both U.S. and foreign venues by
303
They provided
former detainees seeking redress for abuse.

302
See Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd(a) (2006) (enacting a
prohibition on “cruel, inhuman, or degrading treatment or punishment” of any
“individual in the custody or under the physical control of the United States
Government”).
After consideration of the McCain Amendment commenced in July 2005, the
disclosure in the Washington Post of an account of CIA “black sites,” based on leaks
by outraged officials, strengthened the hand of proponents. Dana Priest, CIA Holds
Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1; see R. Jeffrey Smith,
Fired Officer Believed CIA Lied to Congress; Friends Say McCarthy Learned of Denials About
Detainees’ Treatment, WASH. POST, May 14, 2006, at A1 (“A senior CIA official, meeting
with Senate staff in a secure room of the Capitol last June, promised repeatedly that
the agency did not violate or seek to violate an international treaty that bars cruel,
inhumane or degrading treatment of detainees, during interrogations it conducted
in the Middle East and elsewhere. . . . But . . . the agency’s deputy inspector general,
who for the previous year had been probing allegations of criminal mistreatment by
the CIA and its contractors in Iraq and Afghanistan—was startled to hear what she
considered an outright falsehood . . . during the discussion of legislation that would
constrain the CIA’s interrogations. That CIA officer was Mary O. McCarthy, 61, who
was fired on April 20 for allegedly sharing classified information with journalists
. . . .”); see also Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, WASH.
POST, Dec. 4, 2005, at A1 (“The CIA inspector general is investigating a growing
number of what it calls ‘erroneous renditions,’ according to several former and
current intelligence officials.”); Dana Priest, Covert CIA Program Withstands New Furor;
Anti-Terror Effort Continues to Grow, WASH. POST, Dec. 30, 2005, at A1 (“[A] former CIA
officer said the agency ‘lost its way’ after Sept. 11.”).
The first leaked information regarding the NSA’s ongoing warrantless
surveillance program further undercut the administration. Risen & Lichtblau, supra
note 170.
303
For the domestic cases, see El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va.
2006) (filed Dec. 6, 2005; dismissed on state secrets privilege ground on May 12,
2006), aff’d, 479 F.3d 296 (4th Cir. 2007); Complaint, Ali v. Rumsfeld (N.D. Ill.) (filed
Mar. 1, 2005), available at http://www.humanrightsfirst.org/us_law/etn/lawsuit/
PDF/rums-complaint-022805.pdf, transferred sub nom., In re Iraq and Afghanistan
Detainees Litigation, 374 F. Supp. 2d 1356 (D.D.C. 2005), dismissed, 479 F. Supp. 2d
85 (D.D.C. 2007); see also ACLU, Fact Sheet: Legal Claims in Ali et al., v. Rumsfeld
(Mar.
1,
2005),
available
at
http://www.aclu.org/safefree/resources/
17595prs20050301.html (reviewing claims in Ali). Internationally, in 2004, the Center
for Constitutional Rights unsuccessfully asked the German government to indict
Secretary Rumsfeld for war crimes. See Center for Constitutional Rights, CCR Seeks
Criminal Investigation in Germany of U.S. Officials for War Crimes in Abu Ghraib Torture,
available
at
http://www.ccr-ny.org/v2/reports/
report.asp?ObjID=TCRlT9TuSb&Content=471 (reporting a November 30, 2004
criminal complaint by Iraqi torture victims lodged with the “Generalbundesanwalt”
[Federal Prosecutor’s Office] in Karlsruhe, Germany). But see Germany Rejects Attempt
to
Prosecute
Rumsfeld,
EXPATICA,
Feb.
10,
2005,
available
at
http://www.expatica.com/actual/article.asp?channel_id=2&story_id=16810.
That
effort was followed by a complaint to the United Nations about the German
government’s failure to prosecute. See Center for Constitutional Rights, Complaint to

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background, as well, for efforts in litigation to obtain further information
304
regarding the conditions of detainees.
Most strikingly, the documents were deployed before the Supreme
Court by advocates challenging the administration’s claim of
unreviewable power over detainees. As documentary evidence of abuses
continued to emerge from Judge Hellerstein’s order in late 2005 and
2006, the Supreme Court considered the petition for certiorari and the
305
merits of Hamdan v. Rumsfeld. Advocates for the detainees adduced
both the Torture FOIA documents themselves and the resulting public
commentary and investigation to argue that restraints on treatment of
detainees were necessary to assure adherence to minimal requirements
306
of human rights.
Again, proof of causation is difficult, but when the smoke cleared in
June of 2006, the majority opinion in Hamdan not only granted relief to
Mr. Hamdan and his compatriots in Guantanamo, but was crafted to

the United Nations Charges German Prosecutor Caved in to U.S. Pressure in Dismissing Torture
Case Against Rumsfeld and Other High-Ranking Officials for Torture and War Crimes,
available
at
http://www.ccr-ny.org/v2/reports/
report.asp?ObjID=kRrFM3yEeF&Content=716 (describing a February 27, 2006
complaint by human rights groups to the United Nations Special Rapporteur on the
Independence of Judges and Lawyers, claiming that the German Federal Prosecutor’s
dismissal of a torture case filed by Iraqi citizens against Secretary of Defense Donald
Rumsfeld and others was dismissed for political reasons); see also Amnesty
International, Amnesty International’s Supplementary Briefing to the U.N.
Committee Against Torture (May 3, 2006), available at http://web.amnesty.org/
library/Index/ENGAMR510612006 (“Memos obtained by the ACLU in December
2004 under Freedom of Information Act requests, for example, revealed that four
members of a US special operations unit had been disciplined for excessive force,
including improperly using tasers on prisoners. According to the memos, dated June
2004, detainees held in Iraq often arrived at prisons bearing ‘burn marks’ on their
backs.”).
304
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 474 (D.D.C. 2005)
(holding, based on documents received in Torture FOIA litigation, that plaintiffs
stated a claim for due process violations arising from mistreatment of detainees),
vacated, Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Associated Press v. U.S.
Dep’t of Def., No. 05 Civ. 5468, 2006 U.S. Dist. LEXIS 67913, at * 2 (S.D.N.Y. Sept. 20,
2006) (citing Torture FOIA documents in support of grant of FOIA request
regarding Guantanamo records).
305
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (argued March 2006, decided
June 29, 2006); Hamdan v. Rumsfeld, 546 U.S. 1002 (2005) (granting certiorari
November 7, 2005).
306
Brief for Appellee at 13, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005)
(No. 04-5393), 2004 WL 3080434; Brief for Human Rights First as Amicus Curiae
Supporting Petitioner at 14–15, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05184), 2005 WL 2178808; Brief for American Civil Liberties Union as Amicus Curiae
Supporting Petitioner at 20–21, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05184), 2006 WL 53969; id. at 20 n.27 (“Voluminous documentation of the above is
available at http:// www.aclu.org/torturefoia.”); Brief for Human Rights First et al. as
Amici Curiae Supporting Petitioner at 4–5, 5 n.3, 26–28, Hamdan v. Rumsfeld, 126 S.
Ct. 2749 (2006) (No. 05-184), 2006 WL 53968.

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impose legal restraints on abuse by American operatives overseas. This,
indeed, was the administration’s understanding of Hamdan, for in
September of 2006, President Bush publicly acknowledged for the first
time that “a small number of suspected terrorist leaders and operatives
captured during the war have been held and questioned outside the
United States, in a separate program operated by the Central Intelligence
Agency,” and announced that these “suspected terrorists” were being
308
transferred to Guantanamo for trial before military commissions.
Although still coy about the “details of their confinement,” Bush
admitted that those detainees had been the subject of a tough
“alternative set of procedures,” while continuing to maintain that the
procedures “were safe, and lawful, and necessary.” He assured the public
(yet again) that the “United States does not torture.” The reason for this
disclosure and transfer, said Bush, was that Hamdan “has put in question
the future of the CIA program” by prohibiting “outrages upon personal
309
dignity” and “humiliating and degrading treatment.” With looming
congressional elections, the administration sought legislation that would
reverse the legal restraints.
The ensuing maneuvers before the still Republican-controlled
Congress were far from transparent. The resulting legislative landscape
disavows “cruel, inhuman and degrading treatment,” but largely
withholds effective judicial relief from its victims; the Supreme Court is
310
poised to address part of Congress’ handiwork. The administration
311
continues to seek means of suppressing the disclosure of its abuses,

307
Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795 (2006) (determining that
Common Article III of the Geneva Conventions applies to detainees).
308
President George W. Bush, President Discusses Creation of Military
Commissions to Try Suspected Terrorists (Sept. 6, 2006), available at
http://www.whitehouse.gov/news/releases/2006/09/print/20060906-3.html.
A
grassroots indication of the import of the decision was the boom in efforts to insure
CIA operators against damage actions. R. Jeffrey Smith, Worried CIA Officers Buy Legal
Insurance; Plans Fund Defense in Anti-Terror Cases, WASH. POST, Sept. 11, 2006, at A1
(“CIA counterterrorism officers have signed up in growing numbers for a
government-reimbursed, private insurance plan that would pay their civil judgments
and legal expenses if they are sued or charged with criminal wrongdoing . . . .”).
309
President George W. Bush, supra note 308.
310
See Boumediene v. Bush, 127 S. Ct. 3078 (2007) (granting certiorari to address
suspension of habeas corpus for detainees in Guantanamo).
311
E.g., El-Masri v. United States, 479 F.3d 296, 313 (4th Cir. 2007) (holding that
the government could invoke the state secrets doctrine); Arar v. Ashcroft, 414 F.
Supp. 2d 250, 287 (E.D.N.Y. 2006) (dismissing case in part on claims for secrecy,
thereby supporting the government’s efforts not to cooperate with the Canadian
inquiry); Transcript of Gonzales-Leahy Exchange on Arar, TORONTO STAR, Jan. 18,
2007, available at http://www.thestar.com/article/172671; Tim Harper, Senators Still
Seek Answers on Arar; Want Name Added to Probe of U.S. List, TORONTO STAR, Feb. 2,
2007, at A10 (noting that Sen. Leahy agreed to be gagged as the price of receiving a
classified briefing regarding Arar); Carol D. Leonnig & Eric Rich, U.S. Seeks Silence on
CIA Prisons, WASH. POST, Nov. 4, 2006, at A1; Press Release, ACLU, Government Backs
Down in Its Attempt To Seize “Secret” Document From ACLU (Dec. 18, 2006),

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while deploying secret legal opinions claiming the authority for the CIA
to continue to administer “torture lite” in the teeth of statutes
312
prohibiting “cruel inhuman and degrading” treatment. The trench
313
warfare in the FOIA case before Judge Hellerstein continues.
IV. THE STRATEGY OF TRANSPARENCY IN DARK TIMES

Civil libertarians like me are fond of constitutional morality tales
with clean and satisfying endings. The archetype runs from Thomas
Jefferson’s triumphal pardons of the Sedition Act defendants to Richard
Nixon’s resignation in penance for constitutional transgressions. That
fondness is strengthened by the training of legal advocacy: a winning case
should be resolved on the merits, and that resolution should generate a
314
“holding.”
Judged by this standard, the results of a strategy of transparency
could be cause for despair. Commentators have deplored the outcome of
FOIA litigation regarding the “War on Terror,” which has resulted in
judicial opinions that acquiesce in suppression of information on the

available
at
http://www.aclu.org/safefree/general/27727prs20061218.html
(discussing the government’s effort to subpoena “all copies” of a document regarding
photographing of detainees, detailing the unsuccessful effort to seal proceedings
before Judge Rakoff).
312
See Scott Shane, David Johnston & James Risen, Secret U.S. Endorsement Of Severe
Interrogations, N.Y. TIMES, Oct. 4, 2007, at A1 (describing secret legal opinions
authorizing a “combination of painful physical and psychological tactics, including
head-slapping, simulated drowning and frigid temperatures”); Dan Eggen & Michael
Abramowitz, Congress Seeks Secret Memos On Interrogation, WASH. POST, Oct. 5, 2007, at
A1.
313
Dan Eggen, CIA Acknowledges 2 Interrogation Memos, WASH. POST, Nov. 14, 2006,
at A29 (“After years of denials, the CIA has formally acknowledged the existence of
two classified documents governing aggressive interrogation and detention policies
for terrorism suspects, according to the American Civil Liberties Union. But CIA
lawyers say the documents—memos from President Bush and the Justice
Department—are still so sensitive that no portion can be released to the public.”);
Press Release, ACLU, Pentagon Wrongfully Withholding Images of Detainee Abuse,
ACLU Tells Court (Nov. 20, 2006), available at http://www.aclu.org/safefree/
torture/27453prs20061120.html (detailing argument in appeal to the Second Circuit
of an order to release twenty-one photographs depicting abuse of detainees by U.S.
forces in Afghanistan and Iraq); ACLU v. Dep’t of Def., No. 04 Civ. 4151 (AKH), 2006
U.S. Dist. LEXIS 40894 (S.D.N.Y. June 21, 2006), available at http://www.aclu.org/
torturefoia/legaldocuments/DistrictCourtOrder060906.pdf (ordering release of
photographs).
314
Even this expectation forgets the lesson, for example, of Korematsu, a case
whose holding was transformed from precedent to anti-precedent, and whose dictum
regarding “strict scrutiny” of racial classifications became the keystone of two
generations of equal protection analysis. See Bolling v. Sharpe, 347 U.S. 497, 499 n.3
(1954) (citing Korematsu for the proposition that “[c]lassifications based solely upon
race must be scrutinized with particular care, since they are contrary to our traditions
and hence constitutionally suspect.”).

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flimsiest of speculations when “national security” is invoked. Even
where abuses have been revealed, critics have lamented, revelation has
316
not been followed by repudiation. But the standard is wrong and the
despair is excessive.
To be sure, judicial opinions regarding the strategy of transparency
in the first years of the “War on Terror” contain prominent examples of
317
supine acquiescence to the threat of unknown dangers. But the
administration carefully avoided pushing those cases to resolution in the
318
Supreme Court. Even at the height of the terror, the legal landscape
319
was at worst equivocal.
315

See, e.g., Pozen, supra note 70 at 632, 654; Fuchs, supra note 70 at 166–67;
Wells, supra note 70 at854; Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV.
885, 891 (2006) (“[O]pen government seems more like a distant, deferred ideal than
an actually existing practice.”); id. at 906 (“The events of September 11 seem to have
reinforced” judicial deference.); id. at 913 (“[T]he public remains largely ignorant
. . . .”); id. at 939 (arguing that the judiciary has proved a “weak enforcer” of open
government requirements).
316
The comments of Professor Roberts typify the laments. ALASDAIR ROBERTS,
BLACKED OUT 233–37 (2006) (mourning the “wildly misplaced” hopes that the
revelation of detainee abuse would result in public referendum on torture in the
2004 presidential election); see Umansky, supra note 222 (“As a result of the
administration’s stonewalling, the abuse story has been deprived of the oxygen it
needs to move forward and stay in the headlines. . . . The abuse story has become
what Mark Danner, writing in The New York Review of Books, memorably dubbed a
“frozen scandal.”); Tom Engelhardt, When Facts Fail, SALON.COM, Feb. 28, 2006,
http://www.salon.com/opinion/feature/2006/02/28/engelhardt/print.html
(quoting Danner: “With this administration, we’ve got revelation of torture, of illegal
eavesdropping, of domestic spying, of all kinds of abuses when it comes to arrest of
domestic aliens, of inflated and false weapons of mass destruction claims before the
war; of cronyism and corruption in Iraq on a vast scale. You could go on. But no
official investigation follows.”).
In some sense this is the obverse of the claims of Professor John Yoo, that the
election of 2004 was an approval of the imperial presidential decisions to engage in
torture. Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106 (quoting
Yoo as suggesting “that President Bush’s victory in the 2004 election, along with the
relatively mild challenge to Gonzales . . . was ‘proof that the debate is over[,] . . .
[t]he issue is dying out[, and t]he public has had its referendum’”).
317
N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 220 (3d Cir. 2002)
(discussed supra notes 52–57); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331
F.3d 918 (D.C. Cir. 2003) (discussed supra notes 69–72); ACLU v. U.S. Dep’t of
Justice, 265 F. Supp. 2d 20, 28 (D.D.C. 2003) (discussed supra notes 113–21, relying
on CNSS).
318
See supra notes 58–61 and accompanying text (describing strategy of declining
to appeal Detroit Free Press, opposing certiorari in North Jersey Media Group, and
abandoning challenged policy); supra notes 76–77 and accompanying text
(describing successful arguments against review in CNSS based on the claim that the
DOJ Inspector General had already released a report of investigation); supra note 34
(describing strategy of mooting habeas petitions by Sept. 11 dragnet detainees); supra
note 173 and accompanying text (describing rejected effort to vacate order declaring
gag rule unconstitutional in Doe v. Gonzales, 449 F.3d 415, 420–21 (2d Cir. 2006));
supra notes 210–11 (describing plea bargain with John Walker Lindh designed to
prevent disclosure of the coercive interrogation to which he had been subject); supra

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By the end of George W. Bush’s first term, internal acts of
bureaucratic integrity began to remove the option of promiscuous use of
national security classification authority to bar FOIA inquiries into abuse
320
of detainees, and internal resistance by military officers and civil
servants of principle had laid a paper trail revealing the scope and origin
321
of those abuses.
In June 2004, the Supreme Court had declared that “a state of war is
322
not a blank check for the President.” This direction, combined with the
often disingenuous lengths to which the administration had gone to
prevent disclosure, led lower courts to view speculative justifications for
secrecy with a significantly more skeptical eye in important cases
323
324
involving detainees at Guantanamo, use of intrusive surveillance, and
325
coercive interrogation.
note 254 and accompanying text (describing disavowal of coercive interrogation
before the Supreme Court in oral argument).
319
Lower courts had initially been skeptical of attempts to conceal information.
See ACLU of N.J., Inc. v. County of Hudson, 799 A.2d 629, 655 (N.J. Super. Ct. App.
Div. 2002) (discussed supra notes 29–31 and accompanying text); Detroit Free Press v.
Ashcroft, 195 F. Supp. 2d 937, 941 (E.D. Mich. 2002) (discussed supra notes 35–36
and accompanying text); N. Jersey Media Group, Inc. v. Ashcroft, 205 F. Supp. 2d
288, 291 (D.N.J. 2002) (discussed supra notes 37–38 and accompanying text); Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (discussed
supra notes 39–46 and accompanying text); In re Material Witness Warrant, 214 F.
Supp. 2d 356, 363 (S.D.N.Y. 2002) (discussed supra note 51); see also Haddad v.
Ashcroft, 221 F. Supp. 2d 799, 805 (E.D. Mich. 2002) (on remand discussed supra
note 51); Detroit Free Press v. Ashcroft, Nos. 02-70339, 02-70605, 2002 U.S. Dist.
LEXIS 19991, *3–4 (E.D. Mich. Oct. 7, 2002) (discussed supra note 51); ACLU v. U.S.
Dep’t of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) (ordering timely processing of
Patriot Act FOIA request discussed supra note 113 and accompanying text); Elec.
Privacy Info. Ctr. v. Dep’t of Def., 241 F. Supp. 2d 5 (D.D.C. Jan. 2003) (rejecting
efforts to impose search costs on public interest FOIA requester seeking information
regarding “Total Information Awareness” program).
While the D.C. Circuit in CNSS and the Third Circuit in North Jersey Media Group
reversed the lower courts, each case generated a strong dissent and the Sixth Circuit
in Detroit Free Press v. Ashcroft, 303 F.3d 681, 682–83 (6th Cir. 2002) (discussed supra
notes 47–51) emphatically rejected speculation as a justification for concealment.
320
See supra notes 268–72 and accompanying text (describing intervention of
William Leonard, Director of the Information Security Oversight Office in the
summer of 2004 and subsequent reiteration of mandate not to use classification to
shield wrongdoing). No battle is ever permanently won, however. In 2006, criticism in
the Department of Defense Inspector General’s Review of DoD Directed Investigations of
Detainee Abuse was classified “SECRET/NOFORN.” It was declassified and released in
May 2007. See OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF DEF., REVIEW OF DODDIRECTED
INVESTIGATIONS
OF
DETAINEE
ABUSE
(2006)
available
at
http://www.fas.org/irp/agency/dod/abuse.pdf, and Posting of Steven Aftergood to
Secrecy
News
Blog,
http://www.fas.org/blog/secrecy/2007/05/
dod_inspector_general_reviews.html.
321
See supra notes 215–17; supra notes 241–45; supra note 250 (Taguba report).
322
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).
323
See supra notes 99–109 and accompanying text, discussing Associated Press v.
U.S. Dep’t of Def., 395 F. Supp. 2d 15, 16–17 (S.D.N.Y. 2005) (expressing skepticism
regarding justifications for withholding release of attorneys names); Associated Press

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A balanced judgment, moreover, must focus not only on information
withheld, but on information revealed. Given the volatility of
information, it takes only one success to achieve disclosure, while efforts
326
at concealment must be renewed with each threatened revelation. If
the goal is not to optimize national decision-making, but to provide a fail-

v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 18–19 (S.D.N.Y. 2005) (rejecting arguments
for reconsideration as “strange, even hypocritical”); Associated Press v. U.S. Dep’t of
Def., 410 F. Supp. 2d 147, 151 (S.D.N.Y. 2006) (ordering release of names of
detainees, rejecting “conclusory speculation”); id. at 153, 157 (rejecting motion for
reconsideration, expressing annoyance at effort to play a “game of ‘gotcha,’” and
rejecting “wholly conclusory and grossly speculative assertion” viewed as a “cover” for
illegitimate efforts to impose incommunicado detention); see Associated Press v. U.S.
Dep’t of Def., No. 05 Civ 05468 (JSR), 2006 U.S. Dist. LEXIS 67913 (S.D.N.Y. Sept 20,
2006) (ordering release of names of detainees who had charged abuse by their
captors); Associated Press v. U.S. Dep’t of Def., 462 F. Supp. 2d 573, 576 (S.D.N.Y.
2006) (ordering the release of height and weight information).
324
Gerstein v. U.S. Dep’t of Justice, No. C-03-04893 RMW, 2005 U.S. Dist. LEXIS
41276 (N. D. Cal. Sept 30, 2005) (rejecting “parade of horribles” based on
“conclusory assertion” as basis for withholding compilation of uses of section 213
“sneak and peek” warrants, and commenting on “unsavory” tactics by government);
see ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 32–33 (D.D.C. 2004) (discussed
supra notes 137–40; rejecting delays as having “absolutely no justification,”
characterizing administration’s litigation position as “turn[ing] a deaf ear to the
Attorney General”); Elec. Privacy Info. Ctr. v. Dep’t of Justice, Civ. Action No. 05-845
(GK), 2005 U.S. Dist. LEXIS 40318 (D.D.C. Nov. 16, 2005) (discussed supra notes
163–69, describing document production as “incredibly . . . slow and inefficient” and
ordering processing schedule); Doe v. Ashcroft, 334 F. Supp. 2d 471, 475 (S.D.N.Y.
2004) (discussed supra notes 146–54, declaring gag provision of Patriot Act regarding
NSLs unconstitutional as applied to ISP, and rejecting efforts to seal pleadings); Doe
v. Gonzales, 386 F. Supp. 2d 66, 70 (D. Conn. 2005) (discussed supra notes 155–59
and accompanying text, declaring unconstitutional effort to gag librarian who had
received NSL).
325
See supra notes 259–90 and accompanying text, describing “torture files”
litigation; ACLU v. U.S. Dep’t of Def., 339 F. Supp. 2d 501, 502, 504 (S.D.N.Y. 2004)
(decrying “glacial pace” of production and delaying tactics, admonishing
administration that “[n]o one is above the law,” and ordering processing and
production schedule); ACLU v. Dep’t of Def., No. 04 Civ. 4151 (AKH), 2004 U.S.
Dist. LEXIS 24387, at *2–4 (S.D.N.Y. Dec. 2, 2004) (ordering briefing schedule,
identification of documents, and processing by the Defense Department at the rate of
10,000 documents per month); ACLU v. Dep’t of Def., 351 F. Supp. 2d 265, 277
(S.D.N.Y. 2005) (refusing CIA request for stay of identification order, because
investigation of impropriety was being carried out by the CIA Inspector General); id.
(commenting that “Congress has set the laws, and it is the duty of executive agencies
to comply with them”); ACLU v. Dep’t of Def., 357 F. Supp. 2d 708, 709–10 (S.D.N.Y.
2005) (refusing to allow stay pending appeal of order to CIA, characterizing CIA’s
position as “implausible”); ACLU v. Dep’t of Def., 389 F. Supp. 2d 547, 575–76
(S.D.N.Y. 2005) (ordering release of Abu Ghraib photos, refusing to “defer to our
worst fears,” or to accede to “blackmail”).
326
See, e.g., Timothy Besley &Andrea Pratt, Handcuffs for the Grabbing Hand? Media
Capture and Government Accountability, 96 AM. ECON. REV. 720, 725 (2006) (arguing that
a government seeking to avoid accountability will bribe media outlets only if it can
persuade all media outlets to accept the bribe).

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safe against egregious abuses by the current regime, sporadic lightning
flashes may be adequate to reveal the outlines of the landscape.
Reported litigation successes, moreover, understate the information
actually revealed. A significant amount of information has come to light
through leaks which trigger subsequent official and journalistic inquiry
327
and set the stage for FOIA requests. A wealth of other data has been
officially revealed without authoritative judicial intervention in the
shadow of both FOIA litigation and other frameworks of transparency.
The cases above detail such revelations regarding the post September 11
328
329
the MATRIX program,
the Combatant Status Review
dragnet,
330
331
Tribunals in Guantanamo, the implementation of the Patriot Act,
and the physical abuse of prisoners detained overseas during the “War on
332
Terror.”

327

See supra note 144 (describing leak of surveillance activities in Las Vegas in
2003); supra notes 161–62 (describing leak regarding magnitude of NSL surveillance
and record retention policy); supra note 169 (describing reports of illegal wiretapping
and gathering of information by military intelligence); supra notes 220, 222, 224, 227,
228 (describing leaks and journalistic investigation that revealed abuse of detainees);
supra note 231 (describing efforts by JAG officers to mobilize resistance to abusive
interrogation practices); supra note 248 (describing leaks regarding initial Abu
Ghraib investigation); supra notes 255, 259 (describing leaks and publication of Abu
Ghraib photos, Taguba report, and authorizations for coercive interrogation).
328
See supra note 21 (describing journalistic investigation and interviews
identifying 235 detainees); supra notes 25–27 and accompanying text (describing
materials revealing the number and status of post-September 11 detainees in January
2002 and June 2002 in response to FOIA requests and filing of suit ); supra note 32
(describing INS permission for “know your rights” presentations); supra notes 33, 65–
68 (describing DOJ Inspector General’s investigation begun March 2002; report filed
in April 2003, leaked in May 2003, and released in June 2003 regarding September 11
dragnet).
329
See supra note 88.
330
See supra notes 91–93 and accompanying text (describing the release of
Guantanamo CSRT transcripts in response to filing of FOIA action), supra note 98
(describing successful FOIA requests by attorneys for detainees).
331
See ACLU, 265 F. Supp. 2d at 24 (describing release of 341 pages of documents
in response to FOIA request, discussed supra notes 113–20); supra notes 140–42
(describing the release of documents demonstrating misrepresentations regarding
usage of section 215 after expedited processing ordered in ACLU, 321 F. Supp. 2d at
27); supra note 166 and accompanying text (describing release of 250 pages of
documents revealing abuses of NSL process in response to filing of Elec. Privacy Info.
Ctr., 2005 U.S. Dist. LEXIS 40318); supra notes 167–69 and accompanying text
(describing further release of documents in response to processing order in EPIC v.
Dep’t of Justice, and resulting Office of Inspector General inquiry); supra notes 180–94
and accompanying text (describing publication of Department of Justice Inspector
General report on use of Patriot Act authorities).
332
See supra notes 258–60 and accompanying text (describing release of
documents regarding coercive interrogation policy, after portions had been leaked);
supra notes 273–76 (describing release of 100,000 pages of documents regarding
coercive interrogation after order requiring processing of FOIA request); supra note
274 (describing release by FBI of documents detailing abuses by CIA and Defense
Department).

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Most importantly, the failure of the public to immediately repudiate
the administration in the election of 2004 is not a “holding.” It is part of
an ongoing political negotiation for the soul of America. In that
negotiation, the strategy of transparency has had a long term impact on
the legitimacy of an overreaching administration in the eyes of the judges
who review its claims, the civil servants who make up the government,
and the electorate who evaluate the administration’s statements.
The era of a “Global War on Terror” that can conduct abuse entirely
in the shadows seems to be drawing to a close. The public is increasingly
cognizant of the outrages committed in its name, and the Legislative
branches, freed from one-party control by the election of 2006, are
beginning to reassert their constitutional oversight authority, backed by
the subpoena power. Whether these developments will suffice to turn the
nation’s policy back toward its tradition of respect for human dignity is a
tale yet to be told.
As our democracy begins to confront former Secretary Rumsfeld’s
now “known knowns,” there is some hope to be gained from his analysis
of the impact of transparency on an earlier presidency. On June 14, 1971,
Chief of Staff H.R. Haldeman spoke to Richard Nixon about the
publication of the Pentagon Papers by the New York Times. Referring to
a young and canny Counselor to the President, Haldeman was recorded
as saying:
Rumsfeld was making this point this morning. . . . [T]o the ordinary
guy, all this is a bunch of gobbledygook. But out of the
gobbledygook, comes a very clear thing: [unclear] you can’t trust
the government; you can’t believe what they say; and you can’t rely
on their judgment[. A]nd the . . . implicit infallibility of presidents
. . . is badly hurt by this, because it shows that people do things the
333
president wants to do even though it’s wrong . . . .
Counselor Rumsfeld’s concern that the exposure of abuses and
blunders would contribute to the unraveling of the carefully constructed
patriotic enthusiasm for the Executive who perpetrated them proved
prescient a generation ago. It may again in our time, a testament to the
resilience of the constitutional mechanisms we inherited from the
repudiation of Watergate, and the ongoing constituencies for the rule of
law.

333
Nixon Presidential Materials Project, Transcript: Oval Office Meeting with
Bob Haldeman (June 14, 1971), available at http://www.gwu.edu/~nsarchiv/
NSAEBB/NSAEBB48/oval.pdf.

 

 

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