CIA Asserts State Secrets Privilege in Torture Case

The Central Intelligence Agency formally asserted the state secrets privilege this week in order to prevent disclosure of seven categories of information concerning its post-9/11 interrogation program, and to prevent the deposition of three CIA officers concerning the program.

The move was first reported in the New York Times (“State Secrets Privilege Invoked to Block Testimony in C.I.A. Torture Case” by James Risen, Sheri Fink and Charlie Savage, March 8).

“Over time, certain information about the [CIA interrogation] program has been officially declassified and publicly released,” acknowledged CIA director Michael Pompeo, in a March 2 declaration explaining the CIA’s justification for asserting the state secrets privilege. “For example, the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.”

“Nonetheless, many details surrounding the program remain highly classified due to the damage to national security that reasonably could be expected to result from disclosure of that information. For this reason, the CIA has withheld or objected to the disclosure of certain information implicated in discovery in this case,” he wrote.

“The Government has undertaken significant, good faith efforts to produce as much unclassified discovery as possible,” the Justice Department said in its March 8 motion. But “The Government has satisfied the procedural requirements for invoking the state secrets privilege.”

The government said that it had followed the guidance issued by Attorney General Eric Holder in 2009 that was intended to increase internal oversight of state secrets claims by elevating them to the attention of the Attorney General, among other steps.

“These standards and procedures were followed in this case, including personal consideration of the matter by the Attorney General and authorization by him to defend the assertion of the privilege,” Justice attorneys wrote.

The state secrets privilege has often been used in the past to terminate litigation altogether by barring introduction of essential evidence. But not in this case.

“The Government is not seeking dismissal here,” the Justice Department motion said. So even if the state secret privilege claims are granted by the court, as seems likely, the lawsuit could still move forward.

“We think [the] case can proceed on [the] public record,” tweeted attorney Hina Shamsi of the ACLU, which represents the plaintiffs in the case against two CIA psychologists.