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FOIA: Ghost Detention and Extraordinary Rendition Case

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Synopsis

The Center for Constitutional Rights (CCR), in collaboration with Amnesty International USA (AIUSA), and Washington Square Legal Services (WSLS), filed this lawsuit against the Department of Defense (DOD), Department of Justice (DOJ), Department of State (DOS), Department of Homeland Security (DHS), and the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA), seeking the immediate release of records requested from these agencies, pertaining to secret detention and extraordinary rendition of individuals in the so-called “War on Terror.”

Status

The lawsuit, Amnesty, et al., v. CIA, et al., was filed on June 7, 2007. On August 2, 2010, Judge Loretta A. Preska granted in part and denied in part the CIA's and plaintiffs' respective motions for summary judgment. The case against DOJ, DOD, and DOS remains pending in the U.S. District Court for the Southern District of New York and negotiations with those agencies are ongoing.

Description

CCR, AIUSA and WSLS filed FOIA requests with government agencies seeking the release of records related to the evaluations or authorizations of secret detention and transfer, policies and procedures for such programs, the identities of individuals detained or transferred and the locations of their detention or transfer, the activities of private contractors and non-governmental actors, and injuries and treatment of individuals detained or transferred.

Secret prisons and extraordinary rendition hold people outside the law, without contact with lawyers, family members, or the outside world. Reports of torture, abuse, and cruel, inhuman and degrading treatment are common, and these detainees have no recourse for the abuses that they have suffered. Please see our fact sheet on Ghost Detention.

Despite the fact that the government has acknowledged the existence of the program, these agencies have continued to withhold documents that are responsive to the FOIA requests.

The suit raises several causes of action for violation of the FOIA, including failure to expedite processing of their requests, failure to make the records sought promptly available, failure to timely respond to their requests, failure to release records, failure to allow fee waiver, and the improper withholding of agency records. The suit seeks immediate and expedited processing and release of the records requested.

CCR has two related cases. CCR represents Maher Arar, a Canadian victim of the U.S. program of extraordinary rendition who was tortured in Syria for nearly a year. CCR also represents Majid Khan, a former resident of Baltimore, Maryland, who was detained in secret for years before being transferred to Guantánamo Bay.

Timeline

On June 7, 2007, CCR filed the lawsuit with Amnesty International and Washington Square Legal Services. On the same day, CCR also released the report, Off the Record: U.S. Responsibility for Enforced Disappearances in the "War on Terror", the most comprehensive list to date of people known to be or have been held by the U.S. in secret detention, but whose whereabouts and fate is still unknown.

On August 24, 2009, the CIA and the State Department released documents to CCR pursuant to the Amnesty, et al., v. CIA, et al. FOIA litigation seeking records about ghost detention, "enhanced" interrogations and rendition. The CIA documents detail guidelines for CIA conditions of confinement and interrogation techniques, including waterboarding, as well as limited legal assessments of each technique.

On September 22, 2009, as part of their motion for summary judgment, the CIA released Vaughn index entries for cables regarding the waterboarding of Khalid Sheikh Mohammed.

On August 2, 2010, Judge Loretta A. Preska issued an Opinion and Order granting in part and denying in part the CIA's and plaintiffs’ respective motions for summary judgment.  Although upholding the CIA’s withholding of documents on several grounds, Judge Preska also ruled in favor of the plaintiffs in determining that the CIA interpreted the FOIA requests on the specific interrogation technique “attention shake” too narrowly and failed to provide adequate justification for withholding certain legal documents.

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