Connell v. CIA – FOIA Lawsuit Seeking Records About CIA “Operational Control” Over a Detention Facility at Guantánamo Bay

After 9/11, the President authorized the CIA “to capture and detain” persons outside the United States. So began the CIA’s rendition, detention, and interrogation program, wherein dozens of Muslim men and boys were abducted, tortured, held incommunicado, and denied legal process. In September 2006, the CIA transferred fourteen of the men in its program to a facility at Guantánamo Bay known as Camp VII. Although Camp VII was located on a U.S. naval base, according to the Senate Select Committee on Intelligence’s Torture Report, the facility “remained under the operational control of the CIA.”

James G. Connell, III, is an attorney who represents Ammar al Baluchi, one of the fourteen men subjected to the CIA torture program and sent to Camp VII. To better represent his client before a military commission at Guantánamo Bay, Mr. Connell filed a FOIA request with the CIA seeking information about the agency’s “operational control” over Camp VII after his client’s arrival there. The CIA ultimately produced three records, withheld a fourth document in its entirety, and refused to confirm or deny whether any other responsive records exist.

That refusal to acknowledge whether records exist — known as a Glomar response — undercuts the FOIA process before it even begins. Mr. Connell filed a lawsuit challenging the CIA’s assertion of a Glomar response. The district court ruled in favor of the CIA. The ACLU represents Mr. Connell on appeal.

The CIA’s assertion of Glomar is unlawful. To be upheld, the CIA must demonstrate that it is logical or plausible that it has no responsive records in light of the entire record. But reams of record evidence leave no doubt that the CIA maintained some measure of operational control over detainees at Camp VII during the relevant time period. The Senate Torture Report, which was released with the President’s blessing after an executive branch declassification review following direct input and responses from the CIA, conclusively undermines the agency’s Glomar response. Other declassified documents in the record also address the measure of the CIA’s power and authority over Camp VII. And documents and transcripts from the Guantánamo military commissions proceedings further undermine any CIA claim to secrecy over whether records responsive to Mr. Connell’s request, in fact, exist. Moreover, through some of those same documents, the CIA waived its ability to assert a Glomar response through official acknowledgment.