Too Embarrassing to Disclose?

By Dan Froomkin
11:05 AM ET, 06/ 9/2009

President Obama's approach to government transparency is disturbingly opaque in places, particularly when it comes to disclosing information about the Bush administration's torture legacy.

To his credit, Obama in mid-April released a handful of Justice Department memos that authorized and itemized extraordinary brutality.

But a month later, he decided to block the release of more photos depicting detainee abuse by the military.

And now, Obama's CIA director is arguing against the release of details about the torture of Abu Zubaydah in a secret prison -- details that would not only vividly expose precisely what the government did in our name, but could also go a long way to revealing the motives of the torturers, the copious guidance they received from the White House, and how ineffective and counterproductive their methods turned out to be.

In his May 21 national security address, Obama vowed that he would "not protect information merely because it reveals the violation of a law or embarrassment to the government."

But what's emerging is an exception to the rule. The Obama administration apparently won't hide things from the public just because they're embarrassing -- unless they're really, really embarrassing.

Here's how the ACLU's Jameel Jaffer, in an interview with The Washington Post yesterday, described the principle underlying the CIA's assertion: "[T]he greater the abuse, the more important it is that it should remain secret."

R. Jeffrey Smith writes in The Washington Post:

The Obama administration objected yesterday to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees, arguing to a federal judge that doing so would endanger national security and benefit al-Qaeda recruitment.

In a pointed affidavit, CIA Director Leon E. Panetta told a federal judge in New York that records describing the contents of the videotapes, which the CIA said it destroyed in 2005, and other documents containing what he called "sensitive operational information" about the interrogations, were properly classified.

Their forced disclosure to the American Civil Liberties Union "could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed," Panetta argued....

He said that while the memos discussed harsh interrogation "in the abstract," the CIA information was "of a qualitatively different nature" because it described the interrogation techniques "as applied in actual operations."...

He also submitted a classified statement to the court that he said explains why detainees could use the contents to hide information in the future, even though Obama has promised that the United States will not use the harsh interrogation techniques again.

Here, via blogger Marcy Wheeler, is Panetta's full declaration. He explains that the majority of the documents being requested consist of top secret cables sent to and from the CIA secret prison where Zubaydah -- the first detainee tortured by the CIA -- was being held.

These Top Secret communications consist primarily of sensitive intelligence and operational information concerning Abu Zubaydah. Drafted during the timeframe the interrogations were being conducted, these communications are the most contemporaneous documents the CIA possesses concerning these interrogations. In addition to these Top Secret communications, there are also a small number of miscellaneous documents, which include the notes of CIA employees who reviewed the 92 videotoapes before they were destroyed, logbooks containing details of the interrogations, and a photograph.

His central argument:

[D]isclosure of explicit details of specific interrogations where EITs were applied would provide al-Qa'ida with propaganda it could use to recruit and raise funds... Information concerning the details of the EITs being applied would provide ready-made ammuntion for al-Qa'ida propaganda. The resultant damage to the national security would likely be exceptionally grave.

To which I have only one thing to say: the CIA should have thought of all this a long time ago -- ideally, before they embarked on actions whose disclosure alone would be enough to incite our enemies.

And here is Panetta's credibility-sapping finish:

[M]y determinations...are in no way driven by a desire to prevent embarrassment for the U.S. government or the CIA, or to suppress evidence of any unlawful conduct. My sole purpose is to prevent the exceptionally grave damage to the national security reasonably likely to occur from public disclosure of any portion of these documents, and to protect intelligence sources and methods.

The cable traffic, the logbooks and the written reports about the destroyed videotapes would give the American public a much better and more definitive view of not just what was going on in these CIA prisons, but where the pressure was really coming from to abandon tried-and-true interogation methods in favor of brutality.

Just a few weeks ago, for instance, NPR's Ari Shapiro reported that on a nearly daily basis in mid-2002, a CIA contractor would "write a top-secret cable to the CIA's counterterrorism center" requesting permission for various techniques to be used on Zubaydah. The CIA, Shapiro reported, "would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique." It wasn't until months later, on August 1, 2002, that the Justice Department issued its official authorization. Comparing what was said in the cables to what the Justice Department lawyers presented as fact in their memos would also be telling.

But, as I wrote last month, the president who came into office promising to restore our international reputation and return responsibility to government now seems to be buying into the belief that covering up our sins is better than coming clean.

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