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.
https://nsarchive.gwu.edu/NSAEBB/NSAEBB34/index.html
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.”