ACLU Lawyers Mine Secret Documents for Truth

Sunday, August 30, 2009, Washington, DC — In the spring of 2003, long before Abu Ghraib or secret prisons became part of the American vocabulary, a pair of recently hired lawyers at the American Civil Liberties Union noticed a handful of news reports about allegations of abuse of prisoners in American custody.

 ... Agencies sometimes do not take a case seriously until the requestor takes the government to court. The A.C.L.U.’s initial October 2003 request for documents on the treatment of prisoners produced a single document — an innocuous set of State Department “talking points” — before the organization filed suit in June 2004, joined by the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace....

The lawyers, Jameel Jaffer and Amrit Singh, wondered: Was there a broader pattern of abuse, and could a Freedom of Information Act request uncover it? Some of their colleagues, more experienced with the frustrations of such document demands, were skeptical. One made a tongue-in-cheek offer of $1 for every page they turned up.

Six years later, the detention document request and subsequent lawsuit are among the most successful in the history of public disclosure, with 130,000 pages of previously secret documents released to date and the prospect of more.

The case has produced revelation after revelation: battles between the Federal Bureau of Investigation and the military over the treatment of detainees at the Guantánamo Bay prison camp; autopsy reports on prisoners who died in custody in Afghanistan and Iraq; the Justice Department’s long-secret memorandums justifying harsh interrogation methods; and day-by-day descriptions of what happened inside the Central Intelligence Agency’s overseas prisons.

“This is certainly a landmark case in every respect, including in the history of the Freedom of Information Act,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists and an expert on the act.

But Mr. Aftergood said the case also illustrated how costly litigation was often necessary to unearth documents the government preferred to protect. “The law gives you standing to fight,” he said. “It doesn’t guarantee victory.”

In fact, the A.C.L.U. and its partners, a New Jersey law firm, Gibson P.C., and four other advocacy groups, estimate that they have put more than 10,000 hours of legal work into the case. The parties have filed more than 100 motions before Judge Alvin K. Hellerstein of the United States District Court in Manhattan; appeared for formal court arguments a dozen times; and twice taken disputes to the Court of Appeals for the Second Circuit. And now, for the first time, the government is seeking a hearing before the Supreme Court.

The total costs in lawyers’ time and other expenses may exceed $2 million, and under the law, the plaintiffs are entitled to seek reimbursement from the government if they “substantially prevail” in their quest — a standard almost certainly met in this case.

The Freedom of Information Act has a mixed reputation with advocates, journalists and companies who use it regularly. It can be notoriously slow to generate results, and in the case of classified documents — the vast majority of the records at issue in the A.C.L.U. case — the pages often come back with all or most of the content blacked out.

Agencies sometimes do not take a case seriously until the requestor takes the government to court. The A.C.L.U.’s initial October 2003 request for documents on the treatment of prisoners produced a single document — an innocuous set of State Department “talking points” — before the organization filed suit in June 2004, joined by the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace.

Documents began to flow only after September 2004, when Judge Hellerstein issued a ruling criticizing the “glacial pace” of the government’s response and added, “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.”

Mr. Jaffer, 37, a Canadian-born lawyer who left a lucrative practice with a private firm to join the A.C.L.U., said, “Maybe our inexperience was a good thing, because we actually thought we might get something.”

Ms. Singh, 40, the daughter of the Indian prime minister, Manmohan Singh, graduated from Yale Law School, is married to an American and holds dual Indian and American citizenship.

Ms. Singh recalls being teased by a senior colleague in 2003 who asked, “ ‘Are you clearing out shelf space for all the documents you’ll get?’ ” The joke backfired, as reams of paper began to arrive. The organization eventually had to create a new computer system to handle the large electronic database, and in 2007 the two lawyers published a book-length collection of the documents obtained by then, called “Administration of Torture.”

The largest share of documents (2,814) have come from the Defense Department, the A.C.L.U. said, followed by the State Department (998), the F.B.I. (872), other units in the Justice Department (145) and the C.I.A. (49).

A C.I.A. spokesman, Paul Gimigliano, said the agency “takes very seriously — and devotes considerable resources to meeting — its legal obligations under the Freedom of Information Act” and has released tens of millions of pages of documents over the years.

But the recent C.I.A. disclosures caused deep unease inside the agency. Gen. Michael V. Hayden, the former C.I.A. director, said releasing documents the agency had designated as top secret could undermine crucial cooperation from foreign intelligence services. The decision by President Obama in April to release Justice Department memorandums describing C.I.A. interrogation methods is leading to a cascade of disclosures, General Hayden said.

Four former C.I.A. directors and the current one, Leon E. Panetta, had all argued unsuccessfully against the release, which had not yet been ordered by the court in the A.C.L.U. case, though the plaintiffs’ lawyers said they believed that the release would eventually happen.

“We got publicly rolled,” General Hayden said. “So our foreign partners may say there is no value to our promise in the future that ‘Don’t worry, we can keep this secret.’ ”

In May, Mr. Obama decided to fight the release of hundreds of photographs of abuse, saying they could encourage attacks on American troops abroad. It is the photo issue that the administration is taking to the Supreme Court.

The A.C.L.U.’s success has led some news organizations to take a new look at the potential of the Freedom of Information Act to expose government secrets. But the A.C.L.U. lawyers note that their effort has repeatedly fed off the work of investigative reporters who have identified cases of abuse, legal opinions and other documents that the organization then pursued in court.

Their lawsuit continues. On Monday, the government faces yet another court-imposed deadline to turn over more documents — including the 2001 presidential directive authorizing the secret prisons — or explain why they must be withheld.

New York Times