Power Wars Blog by Charlie Savage

A partial victory (for now) in my FOIA lawsuit about the Justice Department’s investigation into the CIA black-site program

Today, Federal District Court Judge J. Paul Oetkin issued an important ruling in one of the Freedom of Information Act lawsuits I am fighting with the New York Times. It was a partial victory and a partial defeat. I have posted his memorandum opinion and order below.

The lawsuit concerns my FOIA request for documents related to the special investigation by a federal prosecutor, John Durham, into whether the CIA broke laws in connection with its “black site” rendition, detention, and interrogation program. Bush’s final attorney general, Michael Mukasey, appointed Durham in 2008 to look into whether CIA officials should be charged for destroying videotapes of interrogations, including waterboarding sessions. In 2009, Obama’s first attorney general, Eric Holder, expanded Durham’s mandate to include whether any laws were broken in the treatment of detainees, including at least two who died in custody. Durham ultimately recommended against charging anyone, and his investigation ended in 2012.

Specifically, I requested all the FBI “302” reports summarizing interviews with witnesses in the course of the investigation, as well as all of Durham’s reports to the attorney general summarizing his findings and recommendations. When the government did not turn over the documents, the New York Times and I filed a lawsuit. The Times’ lawyer is David McCraw.

The Justice Department argued that all the documents were exempt from disclosure under an exception to FOIA for pre-decisional/deliberative work product and attorney-client privileged information. We argued that they should nevertheless be disclosed, including under an exception for documents the government later expressly adopted as policy. Judge Oetkin today ruled for the government when it came to the 302 reports and Durham’s report about the tape destruction, but ruled for us when it came to Durham’s reports about not charging anyone for detainee abuses.

The judge’s reasoning about why the public is not entitled to read the 302s was that Durham had closely supervised the witness interviews, and so the reports might reveal his legal thinking in terms of the witnesses selected to interview and the questions asked. The judge’s decision that the public also was not entitled to see the tape destruction report turned on his finding that the Justice Department had not expressly relied on it when publicly discussing its decision not to bring charges about that matter.

But Holder had extensively cited Durham’s findings and recommendations when announcing decisions about not to charge anyone for detainee abuses, so the judge ruled that for those issues the government had waived its right to keep the documents secret from the public.

We are still a ways away from seeing any documents. The Justice Department may appeal, or it may bring other arguments that portions of them should nevertheless be withheld from the public for other reasons.