Reporters Committee attorneys represent Alan Morrison in suit seeking justification for CIA rendition program

Freedom of Information | Commentary | March 24, 2015

Adam Marshall and Hannah Bloch-Wehba

Alan Morrison, a dean and constitutional law professor at the George Washington University Law School, has filed a Freedom of Information Act lawsuit against the Central Intelligence Agency for access to records detailing the legal justification for rendition and extraordinary rendition programs conducted by the United States. Attorneys at The Reporters Committee for Freedom of the Press are representing Morrison pro bono.

For many years, the United States has sought to bring criminal suspects to the United States for prosecution without using extradition procedures, a practice referred to as rendition. After September 11, 2001, the CIA began a program of so-called “extraordinary rendition.” Under that program, detainees would be transferred into the custody of third-party nations, or to secretly-operated prisons known as “black sites,” for detention and interrogation.

The US government’s practice of extraordinary rendition has garnered substantial public attention and press coverage because of allegations that it was intentionally used to circumvent restrictions on torture and kidnapping imposed by United States, foreign, and international law.

But in 2006, The New York Times reported that Paul Gimigliano, a CIA spokesman, stated that rendition is “an antiterror tool that the United States has used for years in accordance with its laws and treaty obligations.”

Morrison’s FOIA request, sparked by Mr. Gimigliano’s statement, seeks records that analyze or discuss the legality of renditions and extraordinary renditions, or that describe or contain any laws and treaties relating to the legality of these practices.

He sent his first request to the CIA in 2006, and after many years of delay on the part of the agency, Morrison re-sent the request in March 2014. His request has now been pending for almost a year, with no determination as to the request or its administrative appeal.

Morrison has been involved in dozens of FOIA cases over the last several decades. He has consistently fought for access to government records on behalf of journalists, public interest organizations, and the public, and says that he looks forward to being a client in this case.

The CIA has long been recognized as a particularly opaque agency. Data provided by the U.S. government shows that the CIA still has pending FOIA requests from 2005, and it recently “won” the FOIA Failure Award, a Sunshine Week contest devoted to highlighting difficulties faced by FOIA requesters in attempting to gain access to public records. The CIA won the award for its refusal to disclosure Volume 5 of its Official History of the Bay of Pigs, a failed operation that took place in 1961. The agency cited Exemption 5 to withhold the document, which has become known as the “withhold it because you want to” exemption.

The CIA’s rendition programs have come under increasing scrutiny in recent months due to the partial release of the Senate Select Committee on Intelligence’s Study of the CIA’s Detention and Interrogation Program in December 2014. According to the Washington Post, in addition to describing “brutality, dishonesty and seemingly arbitrary violence”, the report “catalogues dozens of cases in which CIA officials allegedly deceived their superiors at the White House, members of Congress and even sometimes their peers about how the interrogation program was being run and what it had achieved.” Two alleged victims of the extraordinary rendition program have independently sought to bring claims against the United States based on harms they have suffered as a result of their torture and kidnapping. Both cases were dismissed. As a result, much of the extraordinary rendition program has remained shrouded in secrecy.

Morrison’s lawsuit was filed in the United States District Court for the District of Columbia. The case number is 1:15-cv-00405-RC, and the complaint can be found at the Reporters Committee’s Litigation Page.