Since its founding, the CIA rarely has met a secret it doesn’t like
By MICHAEL DOYLE AND MARISA TAYLOR | McClatchy Washington Bureau | Published: August 7, 2014
WASHINGTON — The CIA’s current fight to keep secret the details of its terror suspect interrogations echoes its long history of keeping the public in the dark, sometimes for decades.
This latest skirmish pits the spy agency against the Senate Intelligence Committee, which wants to reveal more from its five-year, $40 million investigation. It’s a fight, like so many before, over what stays undercover and why.
Invariably, the CIA is ultra-cautious about releasing information. This might save lives and protect operations. The results, though, can also obstruct oversight, frustrate lawmakers and anger judges. Sometimes, it can simply verge on the absurd.
“There is a belief inside the CIA that it does not have to release anything about anything it does,” said Kel McClanahan, a Washington lawyer who sues the CIA over its classification decisions. “They have been smacked down again and again in court, but they continue to think they’re exempt from the law.”
The CIA and others within the Obama administration now want to excise pseudonyms from the public version of the long-awaited interrogation report. Describing the blackouts as “significant,” the chair of the Senate Intelligence Committee, Democratic Sen. Dianne Feinstein of California, delayed release of the 480-page executive summary of the panel’s inquiry.
The CIA, meanwhile, will be detailing its own version of events in a rebuttal timed to come out with the committee’s report.
The battle over fake names is higher-stakes than it sounds. Such blackouts could water down the impact of a report that is expected to detail “un-American” abuses of detainees that many believe to be torture, said Michael J. Quigley, a former Senate Intelligence Committee staffer who was part of the investigating team in 2009.
“The American people in general still think torture works, and this report is supposed to show it doesn’t,” said Quigley, who wouldn’t comment on the content of the still-unpublished report. “If this report loses its context and meaning, then the only narrative that is comprehensible and public is from the agency. The agency’s argument is that it does work, and that’s not valid.”
White House spokesman Josh Earnest countered that “more than 85 percent of the report was un-redacted, and half of the redactions that occurred were actually just in the footnotes.”
“This is an indication that there was a good-faith effort that was made by the administration and by national security professionals to evaluate this information and to make redactions that are consistent with the need to protect national security, but also consistent with the president’s clearly stated desire to be as transparent as possible about this,” Earnest said.
An administration official, speaking on condition of anonymity, said on Aug. 5 that “constructive dialogue” with the Senate committee was underway. James Clapper, director of national intelligence, added in a statement that “we are confident that the declassified document delivered to the committee will provide the public with a full view of the committee’s report on the detention and interrogation program.”
Similar secrecy battles with the CIA can take years to sort out, and often end up in court.
In 2004, the private National Security Archive, a research organization based at The George Washington University, filed a Freedom of Information Act request for an October 2002 CIA estimate on Iraq’s alleged weapons of mass destruction program. The agency turned over the 93-page document, but only 14 pages contained text. The other pages were whited out.
The agency repeatedly has refused to release certain records even though information is not classified, arguing that it needs to be treated as classified anyway, experts said. In reaction to the ongoing CIA-Senate spat, Sen. Carl Levin, D-Mich., chair of the Senate Armed Services Committee, said the redactions include material already published in the Senate Armed Services Committee report on detainee abuse in 2009.
“There are certainly appropriate reasons for redactions, like withholding the names of clandestine officers,” said Quigley, a former military high-value detainee interrogator in Iraq and Guantanamo who is now a senior fellow at Human Rights First. “But there have to be limits. In this case, I think they’re hiding behind the ubiquitous, ‘This can’t go out for national security reasons,’ when the real reason is that the information is embarrassing to them.”
In another case, a nonprofit law firm that specializes in national security cases sued the CIA over documents concerning compliance with open records laws.
One of the blackouts included the pseudonym of a CIA officer who wrote a report. That fake name — Henry — had already appeared years earlier in the 9/11 Commission Report. The CIA also refused to release articles that it had already posted on its own website.
The CIA asserted it could keep secret the records being sought under a Cold War-era law that created the spy agency and allowed it to withhold personnel information such as salaries and the number of employees.
U.S. District Judge Beryl Howell in Washington dismissed that argument.
“The CIA has been reading that provision too broadly,” the judge wrote in her Aug. 15, 2013, decision, adding, “As a result, the CIA has inappropriately withheld information.”
Howell accused the CIA of a “shameless twisting of the factual record.” She called other assertions by the agency “dead wrong” and “implausible.”
Apparently undeterred, the CIA continues to reiterate the same legal arguments in other courtrooms. Three other judges have likewise shot the agency down.
“They’re openly defying court orders,” said McClanahan, the attorney who has sued the agency.
Congressional committees, too, have repeatedly run into CIA resistance, regardless of what party controls Capitol Hill.
The Senate Intelligence Committee unanimously approved a report in June 2004 on the U.S. intelligence preceding the Iraq War. At the time, Republicans controlled the Senate, and conservative Republican Sen. Pat Roberts of Kansas chaired the intelligence panel.
“The committee is extremely disappointed by the CIA’s excessive redactions to the report,” Roberts and other panel members declared in a June 17, 2004, statement.
After extended negotiations, the National Security Archive noted, the 2004 Senate report was finally released with about 16 percent of the text blacked out.
Classifications, moreover, can remain intact for a long time.
In 1958, for instance, the CIA prepared a history of the 1956 Hungarian revolution, which was crushed by the Soviet Union. In October 2013, the secret classification was allowed to stand by the Interagency Security Classification Appeal Panel.
Aggressive redactions, in turn, are part of a secrecy regime that starts with too much information getting classified in the first place. In a 2012 report, the Public Interest Declassification Board established by the Obama administration described the classification system as “fraught with problems” and biased toward excessive secrecy.
“A culture persists that defaults to the avoidance of risk rather than proper management,” the board noted.
The secrecy culture is deeply engrained.
In 1977, the watchdog agency now called the Government Accountability Office estimated the number of federal classification actions was “at least 70 million.” That was too much, reformers said. Nonetheless, in fiscal 2013, the Information Security Oversight Office reported 80.1 million classification decisions.
Still, with enough time, secrets can become public.
In March 1968, the CIA produced a lengthy “interrogation guide” designed to help question those described as “Cuban escapees.” The guide included questions, such as “What other types of night life are available in this city?” and “Is baseball a very popular sport in this area?”
In December 2013, 45 years later, the interrogation guide was declassified. Parts were redacted.