How the ACLU scooped the press.

The conventional wisdom debunked.
Dec. 31 2004 12:13 PM

FOIA Eyes Only

The latest torture documents show the government still isn't coming clean.

Over the past month, the biggest scoops in the news business have come from ... an organization that's not in the news business. Using the Freedom of Information Act, the American Civil Liberties Union has uncovered thousands of government documents detailing torture of detainees in Iraq, Afghanistan, and Guantanamo Bay. One FBI memo about Gitmo cited "strangulation, beatings, placement of lit cigarettes into the detainees' ear openings, and unauthorized interrogations." It also repeatedly referred to a "cover-up."

The White House has long insisted that detainee abuses, first detailed at Abu Ghraib, were isolated, unrelated to interrogations, and certainly not happening at Gitmo. While the documents don't prove that torture was official policy, they do, as an acerbic Washington Post editorial put it, "establish beyond any doubt that every part of this cover story is false."

Wondering how it was that our nation's top news organizations were beaten to the punch, I contacted reporters and editors at four top papers—the Los Angeles Times,New York Times, Washington Post,and Wall Street Journal—and asked if they had filed similar FOIA requests. I assumed that the journalists would cop to not having thought to do so, and, perhaps reluctantly, tip their hats to the ACLU. There was some of that. Indeed, of the four papers, only the Post filed detainee-related FOIAs. "I wish we had," said New York Times Washington Bureau Chief Philip Taubman, adding that his bureau has recently talked about "making more frequent and better use of FOIA."

But other reporters weren't so quick to beat themselves up and placed at least some of the blame elsewhere, namely with the government itself.

The Wall Street Journal's Jess Bravin—who first raised questions about interrogation methods in 2002 and who earlier this year uncovered administration memos building the legal framework for torture—said he thought of filing FOIAs but didn't, mainly because of opportunity costs. FOIAs often take years, especially on national security matters; requests languish in bureaucratic blackholes, with the only recourse eventually being a time-consuming lawsuit, a prospect publishers don't relish. The whole process, reporters and others say, has become even less fruitful under the current administration.

Coming from reporters who just got scooped, the complaints have more than a whiff of defensive hooey. They are also accurate.

Consider the Washington Post's experience. After the Abu Ghraib scandal broke in the spring, the paper filed a series of wide-ranging FOIAs. Things seemed to go well at first. In August, the Army told the Post that it was ready to release documents. Then came word from the Pentagon that it had set up a "special committee" to "review" and "consolidate" detainee-related FOIAs. "We are still eagerly awaiting the results," said investigative reporter James Grimaldi, who adds, "I have never heard of such a committee before. A skeptical person might say that this was just a move to put off the day they have to release the papers."

Even the ACLU didn't hold out much hope for its FOIA request, made in October 2003. "There was disagreement about whether to even file," says Jameel Jaffer, an ACLU lawyer. "Some people thought we wouldn't be able to get a significant amount of information through FOIA and that it would be more effort than it was worth." Ultimately, he explained, they went ahead on the assumption that at best the government would release page after page of mostly blacked-out memos, which the ACLU could then turn into a nice press release.

The pessimism about the Bush administration's FOIA habits traces back to a 2001 memo in which Attorney General John Ashcroft reversed government policy and told federal agencies the default stance should be to withhold documents. That's the opposite of the Clinton administration's policy, which the Post's Grimaldi summarized as, "When in doubt, let it out."

In truth, the federal government has never been great on transparency. And there don't seem to be any studies quantifying the potential chilling effect of the Ashcroft memo. But this administration does have a much-noted fondness for secrecy, and reporters and others have flagged plenty of examples of what seems to be its resulting three-pronged strategy for FOIAs: Delay, deny, and redact.

The ACLU faced that treatment. After the organization made its initial request, the Pentagon and other agencies dilly-dallied for months, denying ACLU requests to expedite the process. (Here's a timeline.) In the end, the government only coughed up papers after the ACLU took it to court, and won.

But even that has been just a partial victory. The Pentagon has held onto many documents—"There are far more documents that haven't been released than have," says the ACLU's Jaffer—and the CIA insists that it doesn't even need to confirm whether the requested documents exist, let alone release them. Even in the memos and e-mails that have been let loose, there's a generous use of whiteout. One series of e-mails from the Defense Department has the subject header, "re: potential torture involving Iraqi detainees." The whole thread adds up to four pages, and with the exception of the subject headers, all are now blank.

Eric Umansky, previously the "Today's Papers" columnist for Slate, is currently a Gordon Grey Fellow at Columbia University's School of Journalism.