Center for Constitutional Rights v. CIA (Amicus Brief)

The Brennan Center has filed an amicus brief supporting the Center for Constitutional Rights’ petition for writ of certiorari to the Supreme Court. The central issues in the case are whether courts should defer broadly to classification decisions by government agencies and whether information may properly be classified because it could be used, either in original form or in a doctored format, as anti-American propaganda.

On March 4, 2010, the Center for Constitutional Rights submitted Freedom of Information Act requests to the Department of Defense, United States Southern Command, the Department of Justice, the CIA, and the FBI seeking photographs and recordings of Guantánamo detainee Mohammed al-Qahtani. Al-Qahtani is a Saudi national believed to have been the intended “20th hijacker” in the terrorist attacks on September 11, 2001, in custody at Guantánamo since 2002. Many of the facts of his detention have been revealed publicly. These include details of his treatment by the CIA during interrogations, which the Convening Authority for Military Commissions described as meeting the legal definition of torture.

In response to the FOIA requests, the DOD and FBI admitted to having a number of photographs and videotapes of al-Qahtani but refused to release them, while the CIA refused to confirm or deny the existence of any such records. At stake in this petition is the material withheld under FOIA Exemption 1, covering materials that are classified under an executive order in the interest of national defense or foreign policy. The agencies argue that the photos and videos were properly classified and withheld because they could be “manipulated and/or used as a propaganda tool” by terrorist groups to incite anti-American sentiment, recruit members, and raise funds. CCR sued for release of the records. Both the district court in the Southern District of New York and, on Appeal, the Second Circuit sided with the government, citing precedent for deference to agencies in classification decisions.

The Brennan Center’s amicus brief makes two main points. As detailed in the Brennan Center’s 2011 report Reducing Overclassification Through Accountability, there is a widely-acknowledged  epidemic of overclassification in government agencies. Every government commission to review the classification system has found that far more material is classified than is justified by security concerns. Estimates of the amount of material improperly classified range from 50–90%. Agency officials have strong incentives to classify material by rote, and little reason not to. Given this context, the virtually automatic deference courts extend to classification decisions is inappropriate.

Second, accepting the argument that government activities may be concealed if our enemies could use them to foster anti-U.S. sentiment would undermine both the executive order governing classification and FOIA itself. The executive order prohibits classifying information to conceal misconduct or prevent embarrassment. Endorsing the classification of any information that could serve as “propaganda” would effectively eliminate this provision; any information relating to U.S. government misconduct can be used as anti-American propaganda. Even without misconduct, controversial policy decisions could generate anti-American sentiment overseas and therefore be classified by the same logic. Exemption 1 could thus become a loophole that swallows the principles of disclosure and accountability embodied in FOIA.

American intelligence agencies have generate huge amounts of classified information since 9/11 – and also have engaged in a range of activities, from torture to bulk surveillance, that open them to criticism internationally and domestically. The Brennan Center urges the Supreme Court to grant the writ of certiorari in this case and consider carefully the implications of accepting this unprecedented and unlimited justification for classification. \

Read the Amicus Brief [PDF]