NEW YORK, March 9 (Reuters) - The CIA must disclose
records of interrogation techniques used against terrorism
suspects in 2002, a lawyer for the American Civil Liberties Union told an appeals court on Friday.
The techniques were declared illegal in 2009, so the agency
cannot claim the records are still protected from a
long-standing Freedom of Information Act request brought by the
civil liberties group, the lawyer said.
The argument, made before the 2nd U.S. Circuit Court of
Appeals in New York, was the latest round in the legal battle
over the FOIA request.
The ACLU sued the CIA in 2004 for documents relating to its
treatment of prisoners in U.S. custody overseas seeking details
of the agency's secret detention and interrogation program.
As part of the litigation, the CIA in 2007 admitted that in
2005 it had destroyed tapes of an interrogation of alleged al
Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri. The men
were detained and questioned under a special program begun after
the Sept. 11, 2001 attacks.
The judge overseeing the case in Manhattan federal court,
Alvin Hellerstein, subsequently sided with the CIA when the ACLU
asked the agency to release documents related to the destroyed
videotapes. The ACLU appealed in 2010.
ACLU lawyer Alexander Abdo told the judges on Friday that
since the interrogation techniques, which include waterboarding,
had been declared illegal by President Barack Obama, the CIA
could no longer justify keeping the documents secret.
"The CIA concedes the techniques were illegal, we don't
think that conduct can be properly characterized as an
intelligence method," Abdo told appeals court judges Susan
Carney and Richard Wesley. District court judge Miriam Cedarbaum
was also on the panel.
A lawyer representing the CIA said the documents are
shielded from the ACLU's FOIA request because they relate to
classified information as well as the CIA's intelligence
"Waterboarding was a technique used overseas in connection
with intelligence gathering," said Assistant United States
Attorney Tara La Morte.
That the president subsequently declared the techniques
illegal did not change the nature of the documents, she said.
In addition, the ACLU asked the appeals panel to force the
CIA to release a photograph of Zubaydah taken while he was under
the agency's custody. The CIA argues the photo can be withheld
because it relates to intelligence gathering.
The case is American Civil Liberties Union v. Department of
Defense, U.S. Court of Appeals for the 2nd Circuit, No. 10-4290.
(Reporting By Basil Katz)
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