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The American Civil Liberties Union (ACLU) is preparing to soon go back to court to obtain a Sept. 17, 2001 memo by then-President George W. Bush that established rendition, the Central Intelligence Agency’s practice of detaining suspected terrorists abroad.

The ACLU first sought access in 2003 to the memo and two related documents in under the Freedom of Information Act. When the Central Intelligence Agency refused to disclose all three, a federal judge ruled that one of the documents – a Justice Department interpretation of what constitutes torture – must be disclosed.

The second document, a Justice Department memo which specified the interrogation methods CIA agents could use on top Al-Qaeda members in their custody, was eventually released in April of 2009 by President Barack Obama to demonstrate his administration’s commitment to transparency. The documents spurred a national debate about the morality of “water boarding” suspected terrorists.

But the Obama administration has not voluntarily released what ACLU attorney Alex Abdo calls “the foundational document of rendition.”

Back in 2003, the Justice Department fought the FOIA request for what the ACLU says is a 14-page directive signed by President Bush to create “the extralegal space for the CIA to conduct its experiments with torture.”

In a then-secret hearing before a federal judge, Assistant U.S. Attorney Peter Skinner claimed that everything about the memo — even the font in which it was written — was classified information, according to court transcripts. “All of these things are relevant to concerns that if our adversaries knew what these documents look like they would be able to produce forgeries of them,” Skinner argued at that time. He also said the memo fell under executive privilege, in which presidential correspondence is kept secret unless the president chooses to release it.

Abdo says the claim of executive privilege is a “misuse of that law” in order to withhold details about abuses. He says the privilege was intended to protect the president during “an exchange of ideas so he can’t be punished for what he didn’t do. That’s not what this is. This is final marching orders.”

The Justice Department declined to comment and referred the Center to past court records.

Abdo said he is confident the ACLU will win in court this time. “We know so much more about this program now than we did in 2003 when we initially requested it. I would think they have no basis to withhold it anymore.” he said.


The Bush Administration memo is being sought after in court, and is not publicly available in any format.

The Data Mine is a joint project of the Center for Public Integrity and the Sunlight Foundation.

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