Federal Court Argument on CIA’s Refusal to Confirm or Deny Records About Agency’s “Operational Control” Over Camp VII at Guantánamo

WASHINGTON — On Tuesday, April 9, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in Connell v. Central Intelligence Agency, a lawsuit challenging the CIA’s refusal to confirm or deny whether it has records related to its “operational control” of Camp VII at Guantánamo Bay — despite evidence that these records exist. The American Civil Liberties Union and the ACLU of D.C. represent James G. Connell III, an attorney for one of the men subjected to the CIA torture program and sent to Camp VII.

In 2017, to better represent his client, Mr. Connell filed a Freedom of Information Act (FOIA) request with the CIA seeking information about the agency’s “operational control” over the facility. That “operational control” is hardly a secret: it was highlighted in the 2014 Senate Torture Report and in CIA and military commissions documents. But instead of processing his request, the agency produced three records, withheld a fourth in its entirety, and refused to confirm or deny whether any other responsive records exist. This refusal is known as a “Glomar response” and has been used by the CIA for decades to shut down the FOIA process and obstruct attempts to obtain records that would shine a light on the agency’s failures and abuse, even when that abuse is well documented.

“The CIA’s claim to secrecy in this case is as extreme as it is absurd, given the extensive public record about the CIA’s connection to Camp VII,” said Brett Max Kaufman, senior staff attorney with ACLU’s Center for Democracy. “We hope the court takes this opportunity to break the CIA’s bad habit of using and abusing Glomar to evade crucial transparency and accountability.”

In 2023, a district court ruled for the CIA. Mr. Connell is now asking the appeals court to reject the CIA’s illogical and implausible assertion of a Glomar response and vacate the lower court’s ruling. 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 as Mr. Connell and the ACLU will show, reams of evidence leave no doubt that the CIA maintained some measure of operational control over detainees at Camp VII during the relevant time period. Moreover, through some of those same documents, the CIA waived its ability to assert a Glomar response through official acknowledgment.

Oral arguments will begin at 9:30 a.m. ET on Tuesday, April 9, 2024 at the E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex (333 Constitution Ave NW, Washington, D.C.) in Courtroom 31. The hearing is open to the public and audio will be live-streamed here. Following the argument, members of the plaintiff’s legal team will be available for comment.