Human Rights Groups Challenge Government Secrecy on Waterboarding

June 10, 2011

Groups Urge Appeals Court to Overturn Ruling that Subverts the Rule of Law

Contact: Erik Opsal, erik.opsal@nyu.edu, 646-292-8356

New York, NY – Today, the Brennan Center for Justice and nine other human rights organizations urged an appeals court to overturn a decision allowing the government to keep information about its use of waterboarding secret.

The decision was issued in ACLU v. Department of Defense, a case brought by the American Civil Liberties Union (ACLU).  The ACLU sought access under the Freedom of Information Act (FOIA) to information regarding the Central Intelligence Agency’s (CIA) use of “enhanced interrogation techniques,” including waterboarding.  In October 2010, a federal district court ruled that the CIA had authority under FOIA to withhold the information because it relates to “intelligence methods.”

On appeal, the ACLU argues that the district court was wrong to rule that FOIA permits the CIA to withhold information about waterboarding, an interrogation technique that the United States has prosecuted as a war crime and that the President has declared to be unlawful.  Because of this presidential declaration, the technique is outside the scope of the CIA’s charter and therefore cannot be considered a valid “intelligence method” eligible for withholding.

In an amicus brief filed in support of the ACLU’s appeal, the human rights groups describe the CIA’s considerable history of carrying out illegal and improper activity in secret, as well as congressional efforts to prevent such activity.  The brief argues that, in light of Congress’s decades-long effort to provide meaningful oversight of CIA activity, FOIA cannot bar the disclosure of information about unlawful actions such as waterboarding.

“The CIA has a long history of engaging in illegal or improper activity behind a shield of secrecy, something Congress has tried to deter through FOIA and other critical oversight legislation,” said Emily Berman, counsel for the Brennan Center for Justice’s Liberty and National Security Program. “Although secrecy may be necessary to protect legitimate methods of intelligence gathering, concealing illegal CIA conduct such as waterboarding subverts the rule of law and undermines our democratic process.”

The other groups on the amicus brief are the Bill of Rights Defense Committee, Center for Justice and Accountability, High Road for Human Rights Advocacy Project, National Religious Campaign Against Torture, No More Guantánamos, North Carolina Stop Torture Now, PEN American Center, The Rutherford Institute, and The World Organization for Human Rights USA.

For more information, please contact Erik Opsal at erik.opsal@nyu.edu or 646-292-8356.