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Is it the “Abu Ghraib Protection Act?”

Senate Measure Could Restrict Access to Crucial Information About Abu Ghraib
Scandal in DIA Files

Washington, D.C., October 6, 2005 - After failing in 2000, the Defense Intelligence Agency (DIA) is again seeking an exception from disclosure of vast quantities of important Defense Department records currently available under the Freedom of Information Act (FOIA). The exception would render records that document “the conduct of foreign intelligence or counterintelligence operations” of the DIA Directorate of Human Intelligence (HUMINT) unreachable to the public.

The provision currently is included in the Defense Authorization Bill (S. 1042) and the Intelligence Authorization Bill (S. 1803). The provision would allow the Director of the Defense Intelligence Agency to place the DIA’s “operational files” completely outside the purview of the FOIA. “The DIA tried this before and failed because it would protect records about death squads. Now it looks like the DIA wants to cover up records about Abu Ghraib,” commented the Archive’s director Thomas Blanton.

Would The Operational Files FOIA Exception Sought By The DIA Cover Up Records About Interrogation And Detention Practices At Abu Ghraib?
The DIA has produced many records in the FOIA law suit brought by the American Civil Liberties Union (ACLU) and other organizations concerning detention, interrogation and alleged torture at Abu Ghraib prison in Iraq. Some of these records concern DIA involvement in and witnessing of interrogation practices, i.e. “foreign intelligence [] operations.” Would these records become operational records if the FOIA exception sought by the DIA is enacted into law? Take a look:

http://www.aclu.org/torturefoia/released/120704.html (includes records concerning threats to DIA personnel who objected to abuse)
http://www.aclu.org/torturefoia/released/042005/ (records about DIA interrogation policy and investigation of allegations of abuse)

The Central Intelligence Agency Tried To Use Its Operational Files FOIA Exception To Indefinitely Delay Disclosure Of Records About Abu Ghraib.

After Federal District Judge Alvin K. Hellerstein issued an order in the ACLU law suit requiring government agencies to search and review their files for records, the CIA sought to indefinitely postpone search of its operational files for relevant records. Judge Hellerstein rejected the effort because the CIA Inspector General itself already had commenced an investigation into wrongdoing and thus the administrative burden of searching operational files would not be too significant.

http://www.aclu.org/Files/OpenFile.cfm?id=17434 (Decision of Judge Hellerstein)

The DIA Asked Congress In 2000 For Operational Files FOIA Exception; It Was Rejected By Congress Because It Would Shield Important Records Concerning Human Rights Practices Abroad.

The DIA releases under FOIA many important operational records, which are either unclassified to begin with or have been declassified.  For example, the DIA service provides the defense attaches stationed in U.S. embassies around the world.  Like Foreign Service officers at the embassies, these military attaches operate openly and collect and report foreign intelligence information.  They do not operate undercover like overseas CIA employees.  The Defense HUMINT Service, unlike the Directorate of Operations at the CIA, collects much of its information through open sources rather than through the kind of clandestine intelligence sources which must be so closely guarded at the CIA. Indeed over the years, the DIA has routinely declassified and released hundreds of documents including intelligence reports, which have been important to public debate and the historical record.  (Of course, sensitive information that must be protected for national security reasons is already exempt from the disclosure requirements of the FOIA.). Because these records include crucial information about human rights violations committed by foreign military and intelligence units and other important information about political and military developments around the world, Congress rejected DIA’s effort in 2000. Nothing has changed that would justify the exception today.


Operational Files Exceptions Have Been Abused By Agencies to Shield Non-Sensitive Information.

The National Reconnaissance Office (NRO) received an operational files exception in 2002 (without any public hearings or debate) that exempted from disclosure and review only files “that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.” (50 U.S.C. § 432a.) Although a plain reading of the statutory exception would suggest that it would be limited to those files that detail the technical means through which the NRO collects foreign intelligence or counterintelligence, the NRO has broadly interpreted the exception to include “overall program management, policy, and analysis files,” “budget and finance records files,” “contracting, procurement and logistics records files,” and “legal files,” among others. (NRO Operational File Designation List). This certainly cannot be what the Congress intended when it granted the exception.

For other examples of abuse of operational file exceptions see “Spy Agencies Abuse Freedom of Information Act Exemptions, But Congress May Grant New One to Intercepts Agency.”

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