Waterboarding Records|to Remain Sealed

MANHATTAN (CN) - The U.S. government can shield two memorandums and a photograph related to the waterboarding of a Guantanamo detainee, the 2nd Circuit ruled.

Since 2003, the American Civil Liberties Union, the Center for Constitutional Rights and other groups have faced many setbacks in their efforts to access secret information about the treatment of "high-value" Guantanamo detainees, such as Abu Zubaydah.

Two years into the lawsuit, the CIA destroyed 92 tapes capturing so-called "enhanced interrogation techniques" of suspects.

U.S. District Judge Alvin Hellerstein refused to sanction the CIA late last year, but he ordered the government to turn over descriptions of the missing footage in a decision that satisfied none of the parties.

The civil liberties groups appealed the decision, and dozen or so federal agencies fighting the lawsuit asked the appellate court to overturn part of the ruling mandating disclosure.

A three-judge panel granted the government's requests in their entirety Monday.

"Based on our ex parte and in camera review of the unredacted OLC memoranda and the government's classified declarations, we agree with the government that the redacted information was properly classified because it pertains to an intelligence activity," Judge Richard Wesley wrote for the court, abbreviating Office of Legal Counsel.

Circuit Judge Susan Carney and U.S. District Judge Miriam Cederbaum, sitting on the panel by designation from the Southern District of New York, joined the opinion.

Alexander Abdo, an ACLU lawyer who argued the case before the panel, criticized the decision, and attorneys for the Obama administration.

"We are disheartened that an administration with a stated commitment to transparency has claimed the need to shield details about waterboarding despite publicly acknowledging that waterboarding is torture," Abdo said in a statement. "The ruling also grants the government the Orwellian authority to censor a photograph of a detainee because the photograph might reveal the detainee's 'condition' after being tortured. Were any other country to claim that national security required the suppression of details of torture, Americans would be rightfully shocked and incredulous."

The ACLU's statement appears to refer to a portion of the 2nd Circuit opinion that says: "Like the district court, we observe that a photograph depicting a person in CIA custody discloses far more information than the person's identity."

While government lawyers asserted that waterboarding photos depicted "intelligence sources and methods," the civil liberties groups tried to undercut that argument by pointing out that Obama baneed waterboarding with an executive order and referred to the practice as "torture" in a public statement.

The judges said that Obama's announcement would not change their decision.

"What becomes of information concerning a method that the President, on advice of counsel, considers legal, but which is later declared unlawful by a federal court or by a subsequent administration?" the 34-page decision states. "Relatedly, is the legality of a method to be determined as of the time of the method's use or may a forward-looking proscription also apply retroactively to prevent reliance on an exemption? The matter currently before us helps illustrate the point. Even if we assumed that a President can render an intelligence method 'illegal' through the mere issuance of public statements, or, more formally, through adoption of an executive order, and if we further assumed that President Obama's Executive Order coupled with his statements describing waterboarding as 'torture' were sufficient in this regard, we would be left with the difficult task of determining what retroactive effect, if any, to assign that designation. In our view, such an 'illegality' inquiry is clearly beyond the scope and purpose of FOIA."

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