I have some bad news. We lost.
A federal judge granted the CIA’s request to dismiss our lawsuit seeking disclosures from a report by the agency’s Inspector General into the November 2003 death of Manadel al-Jamadi in Abu Ghraib prison. I’ve posted the ruling here.
One of the questions before Judge James Boasberg was whether the CIA cover-up in this case could properly be deemed classified. After conducting an in camera review of the Inspector General’s report, Judge Boasberg ruled that “information relating to the cover-up is inextricably intertwined with the rest of the report and cannot be released in any intelligible form.”
As readers of this site know, Jamadi was a suspect in the October 2003 bombing of the Red Cross offices in Baghdad that killed 12. He was captured in a nighttime raid by Navy SEALs on November 4, 2003. The SEALs handed him over to the CIA, which took him to the notorious Abu Ghraib prison for interrogation. Within hours, he was dead. The only people in the room when Jamadi died were a CIA polygraph examiner turned interrogator and his translator. Photos taken hours later became some of the unforgettable images of the Abu Ghraib prison scandal.
The lawsuit, deftly litigated by my attorneys at Loevy & Loevy, earlier prompted the agency to disclose that agency personnel attempted to cover up the facts in Jamadi’s death, a cover-up that was never prosecuted. Read my post about this here.
Our argument was the criminal misconduct alleged in the case—involuntary manslaughter, false statements, destruction, alteration, or falsification of federal records, and conspiracy to defraud the United States—could not be deemed classified. The CIA is authorized to conduct foreign intelligence, not commit crimes against the United States.
Judge Boasberg shot that argument down. “Even if the Court agreed that the specific instances of agent misconduct fell beyond ‘the agency’s mandate to conduct foreign intelligence, it does not follow that an OIG report investigating this mischief cannot be properly classified,” Boasberg wrote. “Were this otherwise, as Hettena suggests, the CIA and other intelligence agencies would effectively be penalized for investigating misconduct.” (emphasis in original)
How, exactly, is the CIA being “penalized,”
astutely asked. How does revealing crimes penalize the agency? Perhaps realizing he’s on shaky ground, Judge Boasberg cites a ruling from the D.C. Circuit Court of Appeals, which held, “There is no legal support for the conclusion that illegal activities cannot produce classified documents.”I had thought we had a pretty good argument in another way. Porter Goss, as CIA director, previously declassified aspects of this case, including the fact that CIA agents were present during Jamadi’s capture and subsequently interrogated him.
Information that the CIA has officially acknowledged cannot be exempt and must be disclosed under FOIA. But Judge Boasberg found that Goss’ declassification order “only divulges general information.”
“Having reviewed the disputed report in camera, the Court cannot help but conclude that there are ‘substantive differences’ between this general public disclosure and the ‘comprehensive’ information contained in the report,” the judge wrote. Because Goss’ order was not “as specific” as the Inspector General’s report and doesn’t “match” the information in it, it doesn’t count as an official acknowledgment.
It’s a tough loss to swallow. The only people ever held publicly accountable in Jamadi’s death were a group of Navy SEALs who were accused of beating—but not killing—him. No one from the CIA has ever been held publicly accountable. And finding out why has just become much harder.
Thank you for all of your efforts on this. Curious about the logic here - is the judge asserting that revealing alleged crimes will penalize the Agency? Does penalizing mean a reputational hit? Shouldn't all alleged crimes be classified then under this logic, as they harm individuals' reputations, or are only state crimes worthy of special protection?