The American public needs to understand we're talking about rape and murder here

[NNN0LHI]

http://www.salon.com/politics/war_room/2005/07/25/abughraib/index.html

Monday, July 25, 2005 12:19 EDT

The hidden horrors of Abu Ghraib

Last Friday was the deadline set by a federal judge for the Pentagon to release a stash of photographs and videotapes showing graphic proof of the abuse of detainees at Abu Ghraib prison in Iraq. The government ignored the deadline. Instead, in a secret brief filed with the court, it argued -- as it has done ever since the ACLU filed a Freedom of Information Act request for the photos last year -- that it shouldn't have to release the evidence.

Nobody knows what the government's latest argument is, but it may have something to do with the hit President Bush's flowery rhetoric may take if pictures of "freedom on the march" are shown to the world. As Editor & Publisher points out in a nice compilation of public comments about the secret images, we haven't yet seen the worst of Abu Ghraib. Not by a long shot.

Donald Rumsfeld said last year that the images in question are "hard to believe," and that what they show "can only be described as blatantly sadistic, cruel and inhumane." And here's what Lindsey Graham, the Republican senator from South Carolina, said of the pictures after they were screened for members of Congress last year: "The American public needs to understand we're talking about rape and murder here. We're not just talking about giving people a humiliating experience... We're talking about rape and murder -- and some very serious charges."

[flashl]

1. K&R

[raccoon]

2. I am shocked that Lindsey Graham said something that makes good sense.

Perhaps I have misunderestimated him.

[NNN0LHI]

5. Haven't heard him elaborate on his comments

He is a JAG officer and should have had charges filed.

By not doing so he is saying keep doing what you are doing.

Don

[gratuitous]

6. Well, he said that nearly three years ago

And, you know, things change. Rape and murder aren't quite such serious subjects anymore. 9/11 changed everything.

[The Backlash Cometh]

3. If Donald Rumsfeld said the pictures are sadistic, cruel and inhumane,

then you KNOW it's bad. And he's responsible for it.

[wtmusic]

4. Last year? The ACLU filed in 2004

This has been going on forever. DOJ has been throwing everything they can at this case to stall it--and been very effective.

A recent filing:

Case 1:04-cv-04151-AKH Document 285 Filed 03/31/2008 Page 1 of 11
Although captioned a “Supplemental Brief,” Plaintiffs seek reconsideration of the Court’s 1
January 18, 2008 order. See Plaintiffs’ Supplemental Brief in Further Support of Third Motion
for Partial Summary Judgment, dated February 15, 2008 (“Pls. Supp. Br.”), at 2. This opposition
brief addresses Plaintiffs’ arguments in support of their application for reconsideration. This
brief does not address Plaintiffs’ arguments concerning the March 14, 2003 memorandum, as
Plaintiffs raise no arguments concerning that memorandum that were not previously addressed in
Defendants’ papers supporting their Third Motion for Summary Judgment. See Reply
Memorandum of Law in Further Support of Defendants’ Third Partial Motion for Summary
Judgment, dated December 13, 2007, at 40-43. The definitions and abbreviations in Defendants’
opening and reply briefs in support of their Third Motion for Partial Summary Judgment are
incorporated by reference in this brief.
PRELIMINARY STATEMENT
Defendant Central Intelligence Agency, by its attorney, Michael J. Garcia, United States
Attorney for the Southern District of New York, respectfully submits this memorandum of law in
opposition to Plaintiffs’ motion for reconsideration of the Court’s January 17, 2008 ruling that
the August 1, 2002 memorandum was properly withheld under the attorney-client privilege. 1
Although Plaintiffs do not explain the basis for their motion, they appear to rely upon
Federal Rule of Civil Procedure 60(b)(2), under which a court may relieve a party from an order
based on newly discovered evidence. Specifically, Plaintiffs allege that Attorney General
Michael B. Mukasey’s February 7, 2008 testimony before the Senate Select Committee on
Intelligence constitutes new evidence that the August 1, 2002 memorandum was adopted and
incorporated as policy and that the FOIA exemptions applicable to that memorandum have been
waived. See Pls. Supp. Br. at 11. Plaintiffs therefore seek reconsideration of the Court’s January
17, 2008 ruling that it will not conduct an ex parte, in camera review of the August 1, 2002
memorandum because the memorandum was properly withheld in full under the attorney-client
privilege.
Plaintiffs’ motion for reconsideration should be denied because the Attorney General’s
testimony revealed no facts that were not previously before the Court. At oral argument,
Case 1:04-cv-04151-AKH Document 285 Filed 03/31/2008 Page 2 of 11
2
Plaintiffs presented the Court with statements from General Michael Hayden, the Director of the
CIA, to the effect that DOJ had approved CIA interrogation techniques. The Attorney General’s
February 7, 2008 statements reiterate the same point. As the Court already recognized, such
statements establish that DOJ opined as to the legality of techniques proposed by the CIA, not
that the CIA expressly adopted DOJ’s legal rationale.
Moreover, the Attorney General does not set CIA intelligence policies, as the CIA does
not report to DOJ when it conducts intelligence activities. Indeed, DOJ can offer an opinion on
the limits of the law, but it cannot compel the CIA to adopt policies that extend to those limits.
The Attorney General therefore lacks the authority to adopt a particular legal rationale as the
basis for a CIA policy. And even if the Attorney General had such authority, his February 7,
2008 statements would not constitute adoption, as he did not incorporate the reasoning of the
August 1, 2002 memorandum as the basis for a change in policy. Therefore, the Attorney
General’s statements did not constitute adoption of the August 1, 2002 memorandum such that
the memorandum loses the protection of the attorney-client privilege.
Moreover, the Attorney General’s statements did not waive the applicability of FOIA
exemptions to all portions of the August 1, 2002 memorandum relating to waterboarding, as
Plaintiffs incorrectly suggest. An official acknowledgment must specifically track the
information requested for there to be waiver. Here, there has been an official acknowledgment
that a DOJ opinion found waterboarding to be legal. The CIA is re-reviewing the August 1, 2002
memorandum to determine whether there are any meaningful, reasonably segregable portions of
the August 1, 2002 memorandum that track this narrow acknowledgment. The waiver doctrine
requires the Agency to produce nothing more.

It goes on and on.

https://ecf.nysd.uscourts.gov/doc1/12714611036