The New York Times
Judges Press C.I.A. Lawyer Over Withheld Documents
By ANEMONA HARTOCOLLIS
A federal appeals court panel in Manhattan questioned a lawyer for the federal government yesterday as to whether the Central Intelligence Agency had a legitimate national security interest in refusing to confirm or deny the existence of documents authorizing it to detain and interrogate terrorism suspects overseas.
The tough questioning came in oral arguments by the American Civil Liberties Union and lawyers for the C.I.A. before the United States Court of Appeals for the Second Circuit. The civil liberties group is trying to force the C.I.A. to disclose how much authority it has been given to interrogate detainees since the attacks of Sept. 11, 2001.
Through the Freedom of Information Act, the A.C.L.U. is seeking documents, including a directive said to have been signed by President Bush, giving the agency the authority to set up detention sites outside the United States and to interrogate prisoners. In its lawsuit, the group says the existence of these documents has been hinted at in news reports.
But the government has refused to confirm or deny the documents' existence, saying that to do so would jeopardize national security by revealing C.I.A. methods and activities. Last September, Judge Alvin K. Hellerstein of Federal District Court upheld that position, and yesterday's hearing was part of the A.C.L.U.'s appeal of his ruling.
The three-judge appeals panel seemed divided on the issue, with Judge John Gleeson asking the most forceful questions of the government lawyer, Peter Skinner. Judge Gleeson seemed to be trying to determine whether the A.C.L.U. was right in contending that the agency was acting to avoid political embarrassment, rather than out of national security interest.
The judge asked Mr. Skinner whether the C.I.A.'s position had "shifted a little bit" during the litigation. Initially, Judge Gleeson said, the government seemed to be refusing to disclose even whether the C.I.A. had an "interest" in the questioning of detainees abroad.
Now, he said, the C.I.A. seemed to be admitting it had an interest in helping other agencies question detainees. The government was arguing, he said, that the C.I.A. wanted to safeguard information about whether it had been granted any independent authority to set up detention centers and interrogate prisoners.
"Independent engagement as opposed to helping out other agencies," Judge Gleeson said.
Mr. Skinner denied that the government had shifted its argument, though he suggested that it had clarified it. The C.I.A., he said, acknowledged all along that it had helped other agencies in interrogations and that when it did so, it was governed by Justice Department rules.
But, Mr. Skinner said, the agency "never acknowledged an interest or ability to go beyond those legal limitations" and was not going to do so now.
Megan Lewis, the lawyer for the A.C.L.U., argued that any information that would be revealed by merely acknowledging the existence of the documents would be so general that it would not jeopardize national security or betray specific intelligence-gathering methods. To argue otherwise, Ms. Lewis said, is "tantamount to the C.I.A. attempting to deny its interest in spying."
Outside court later, she said the documents, if they existed — "and I believe they do" — might be revealing, but "that's another fight for another day."
The A.C.L.U. seeks disclosure of two documents. One is said to be a Justice Department memorandum "specifying interrogation methods that the C.I.A. may use against top Al Qaeda members." The second is the directive said to be signed by Mr. Bush authorizing the agency to set up detention facilities outside the United States "and/or outlining interrogation methods that may be used against detainees."
Although oral arguments in the appeals court are often delivered in legal shorthand, yesterday's seemed even more opaque than usual. Almost apologetically, Mr. Skinner told the judges he was "somewhat constrained" in his ability to explain his argument and "connect the dots" because some of the C.I.A.'s reasoning in the case was classified.
The agency has submitted papers to the court that even the plaintiffs have not been allowed to see.
As the hearing came to a close, Judge Joseph M. McLaughlin made a joke about the obscurity, quoting a Jesuit logician, Father John Gerard, who in 1597 told a British interrogator: "I do not know where he is. But if I did, I could not and would not tell you."
The Jesuit doctrine of equivocation, Judge McLaughlin said, "lives on."