Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

[Law1] That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

[buttons] One memo, drafted in November 2002 by personnel from the FBI’s Behavioral Analysis Unit — the unit best trained to understand human behavior and how to interpret and manipulate criminal suspects — was among the documents released by the government on Friday as part of the ongoing Freedom of Information Act litigation brought by the American Civil Liberties Union. The memo was sent to the Commanding General and Jt. Task Force 170 — the unit of the Southern Command in charge of detaining and interrogating detainees at Guantanamo Bay.

The BAU, explained elsewhere in documents released on Friday, is “comprised of Supervisory Special Agents with an average of 18 years of experience in criminal and counterintelligence investigations.”

The memo lays out clearly and simply what the interrogation experts at the FBI knew about interrogations of terror suspects, what would or would not work on them, and what sort of conduct was illegal. And it reads much like the sorts of arguments we’re now hearing from the America Civil Liberties Union and other civil and human rights organizations arguing that senior defense department officials and lawyers who approved abusive techniques ought to be criminally investigated.

“Central to the gathering of reliable, admissible evidence is the manner in which it is obtained,” the authors write to the General. “Interrogation techniques used by the DHS [Defense Human Intelligence Services, part of DoD] are designed specifically for short term use in combat environments where the immediate retrieval of tactical intelligence is critical. Many of DHS’s methods are considered coercive by Federal Law Enforcement and [Uniform Code of Military Justice] standards. Not only this, but reports from those knowledgeable about the use of these coercive techniques are highly skeptical as to their effectiveness and reliability.”

Most of the detainees at Guantanamo Bay had already been interviewed repeatedly overseas by the DHS, so the FBI recommended a different approach be taken at Guantanamo.

The FBI favors the use of less coercive techniques — ones carefully designed for long-term use in which rapport-building skills are carefully combined with a purposeful and incremental manipulation of a detainee’s environment and perceptions.

The BAU staff explain:

FBI/CITF agents are well trained, highly experienced and very successful in overcoming suspect resistance in order to obtain valuable information in complex criminal cases, including the investigations of terrorist bombings in East Africa and the USS Cole, etc. FBI/CRT interview strategies are most effective when tailored specifically to suit a suspect’s  or detainee’s needs or vulnerabilities. Contrary to popular belief, these vulnerabilities are more likely to reveal themselves through the employment of individually designed and sustained interview strategies rather than through the haphazard use of prescriptive, time-driven approaches. The FBI/CITF strongly believes that the continued use of diametrically opposed interrogation strategies in GTMO will  only weaken our efforts to obtain valuable information.

The memo goes on to list the interrogation techniques being used, and then to list which ones are “not permitted by the U.S. Constitution.” Those include: the use of stress positions for more than four hours; hooding; 20-hour interrogation segments; stripping a detainee of all clothing; and exploiting individual phobias, such as fear of dogs, to induce stress. They also include the use of scenarios designed to convince a detainee that death or severe pain is imminent for him or his family; waterboarding (here called “use of wet towel and dripping water to induce the misperception of drowning”); and exposure to cold weather or water.

All of those techniques, we now know, continued to be used by the Defense Department.

The FBI also warned that the use of such techniques would make any evidence derived inadmissible in federal court and if admissible in a military commission, likely to be given “little or no weight.”

The FBI drafters of the memo further explained that most of those techniques, particularly the last four, would also violate the U.S. anti-torture statute. It recommended that they not be used.

We know that the Pentagon and CIA went ahead and used them anyway. Instead of relying on their top experts in the FBI, they relied on a plan developed by a couple of private psychologists with no experience whatsoever in interrogating terror suspects and who cribbed much of their plan from a study of Chinese Communist techniques used to obtain false confessions from American prisoners during the Korean war. Senior U.S. officials then sought legal opinions from the Office of Legal Counsel that would tell them that these techniques, contrary to the FBI’s opinions, were not illegal. Conveniently, those opinions did cast the techniques described in a completely different light.

The most recently released memos have not gotten much attention, as torture fatigue sets in and the Bush torture program becomes old news. But the FBI memo is important because it adds to the growing body of evidence that senior defense department and CIA officials deliberately ignored the opinions of the best trained and most experienced people in the government about interrogations that abusive interrogations would not work and were not legal. Add that to the rest of the evidence that senior Bush administration officials did not act in good faith in relying on the Office of Legal Counsel memos that justified the techniques the Defense Department and CIA were using, and this latest declassified memo adds weight to the argument that something fishy was going on at the highest ranks of government that demands further investigation.

This latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III federal courts. They know that the evidence extracted from the prisoners under the “enhanced” methods Cheney is still defending doesn’t stand a chance in front of an independent U.S. federal court judge.

According to [REDACTED] the hard takedown was used often in interrogations at [REDACTED] as “part of the atmospherics.” For a time it was the standard procedure for moving a detainee to the sleep deprivation cell. It was done for shock and psychological impact and signaled the transition to another phase of the interrogation. The act of putting a detainee into a diaper can cause abrasions if the detainee struggles because the floor of the facility is concrete. The [REDACTED] stated he did not discuss the hard takedown with [REDACTED] managers, but he thought they understood what techniques were being used at [REDACTED] stated that the hard takedown had not been used recently. [REDACTED] After taking the interrogation class, he understood that if he was going to do a hard takedown, he must report it to Headquarters. Although the DCI [Director of Central Intelligence] and OMS [Office of Medical Services] Guidelines address physical techniques and treat them as requiring advance Headquarters approval, they do not otherwise specifically address the “hard takedown.”

So the Hard Takedown involved putting a detainee into a diaper and preparing him for sleep deprivation, which was done through placing a detainee in painful contorted positions. And those who performed it believed they merely needed to report it to CIA headquarters. Obviously no one thought he was doing anything above and beyond the approved techniques. Another operative tells the inspector general that “they are authorized and believed they had been used one or more times at [REDACTED] in order to intimidate a detainee.” (That’s a direct quote of the IG report, not the CIA operative.) And why not? Sleep deprivation wasn’t even considered an enhanced technique by then-CIA Director George Tenet, and clearly “headquarters” knew what the Hard Takedown was if officials were reporting its use — and could have stopped it. It’s harder and harder to argue these abuses weren’t the direct outgrowth of policy, even if the Justice Department didn’t explicitly order such techniques.

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“There are no court rules or rules in the military commissions that would prohibit showing detainees photos “as long as you obtained them from an unclassified source, and they weren’t otherwise covered by a protective order,” said Dratel.

In general, lawyers cannot show their clients information that is classified. And like anyone else, they can’t intentionally reveal the identity of a covert CIA agent knowing that the agent is or recently was playing a covert role with the CIA. It’s not clear if any lawyers showed their clients photos of interrogators who were acting covertly, but it’s also unclear how an official questioning a terror suspect on behalf of the CIA would be covert.

In any event, defense lawyers are troubled that the Justice Department decided to leak news of the investigation to reporters. The Washington Post and The New York Times both reported the story this morning.

“It’s unfortunate that someone in a position to know better decided to go public with this and attempt to smear people in a way that they can’t do legally,” Dratel said. “The investigation is something that’s extraordariny not only for the fact that it’s occurring, but for how it’s occurring, with people being confronted by law enforcement,” said Dratel.

Government agents reportedly approached three lawyers from the Judge Advocates General’s Corps two weeks ago and informed the military lawyers of their right to remain silent, then asked whether they’d shown their clients photos of CIA officials.

“Normally, when a prosecutor wants to subpoena a lawyer, they have to get permission and jump through a lot of hoops,” said Dratel. “I see this as heavy-handed.”

It also could be a way to intimidate the lawyers from aggressively defending their clients. Yesterday, American Civil Liberties Union president Anthony Romero vigorously defended the defense lawyers, who are receiving assistance from the ACLU through the John Adams Project, which has organized private attorneys to assist the military lawyers in defending terror suspects.

“Identifying who tortured our clients and what they did to them and when is an essential part of defending their interests in these sham proceedings,” Romero told The Times.

Ramzi bin al Shibh is one of five men charged by the U.S. military commission with having participated in planning the Sept. 11 hijacking and suicide mission. His lawyers say he’s not competent to represent himself or to stand trial because he suffers from “delusional disorder” and hallucinations, and he is being treated with psychotropic drugs by Guantanamo Bay prison doctors.

To prepare his defense, his lawyers tried to get evidence from the government about which specific interrogation techniques were used on him, and how frequently. Waterboarding, stress positions, sleep deprivation and sexual humiliation are among the techniques to which the the alleged 9/11  conspirators were subjected, according to the so-called Office of Legal Counsel “torture memos” released earlier this year.

But the military judge hearing the case, Army Col. Stephen Henley, ruled on Aug. 6 that “evidence of specific techniques employed by various governmental agencies to interrogate the accused is … not essential to a fair resolution of the incompetence determination hearing in this case.” The government had argued that releasing the evidence would endanger national security.

The Miami Herald obtained a copy of the ruling on Monday.

The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.

After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:

Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.

Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?

Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.

As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.

Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:

“[T]he United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment’, only insofar as the term `cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”

In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.

Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban?  Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?

If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.

UPDATE: For more on the misleading Times’ story and a close reading of the Jim Comey e-mails, check out these excellent posts from Glenn Greenwald and Marcy Wheeler.

2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute.  After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.

My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”

But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.

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Buried in a 2008 Justice Department inspector general report is the strange fact that the U.S. government — surely knowing that the Uighurs were dissidents who’ve been persecuted and tortured in China (which the State Department has acknowledged) — not only allowed Chinese government interrogators to question the Uighurs at Gitmo, when almost no one else outside the U.S. government had access to the place, but used repeated sleep deprivation and interruption to soften them up for those interrogations.

According to the 2008 IG report (pdf), in footnote 134:

While the Uighurs were detained at Camp X-Ray, some Chinese officials visited GTMO and were granted access to these detainees for interrogation purposes. The agent stated that he understood that the treatment of the Uighur detainees was either carried out by the Chinese interrogators or was carried out by U.S. military personnel at the behest of the Chinese interrogators. He said he also heard from the Uighur translator that other Uighur detainees experienced this same treatment.

It’s a question that’s come up at recent House Judiciary Committee hearings on Guantanamo, but so far no one’s answered it: why were U.S. interrogators at Guantanamo Bay helping to “soften up” Chinese Uighur detainees on behalf of the Chinese government?

“One of the things that I find a little bit disturbing about this recent disclosure is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn’t put out the memos that showed the success of the effort,” Cheney said in an interview with FOX News’ Sean Hannity aired Monday night.

Well, if there are memos showing that torture and the CIA’s other “extreme” interrogation techniques were successful, I’d like to see those, too — all of them. Including the ones that show that detainees like Abu Zubaydah gave up the most important information they had before they were waterboarded — and nothing of much use afterwards. And while we’re at it, let’s see the proof that the techniques were successful — that the information these torture victims offered actually turned out to be reliable.

As I pointed out yesterday, whether policymakers had strong, convincing evidence that these techniques were actually going to deter the next terrorist attack is critical to the legal analyses that justified them. If the CIA didn’t have very good reason to believe that sticking a guy in a box with insects or slamming him repeatedly against the wall or depriving him of food and sleep for days at a time would yield critically important information, then the whole legal justification about how this was all done for a very important government purpose quickly falls apart. (Set aside for a moment whether these sort of techniques could ever really be considered legal standing on their own.)

So Cheney’s right: if there are memos demonstrating the CIA’s success, bring them on — let’s see all the relevant evidence and then see just how legal and justified it all was.

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The Obama administration is now in the odd position of defending Yoo, who made the legal arguments justifying such extreme interrogation methods as waterboarding, or simulated drowning, a well-known form of torture. Padilla, an American citizen, claims he was subjected to those techniques during his more than three years held in isolation without charge or trial at a U.S. military brig. (He was eventually transferred to civilian custody and tried in federal court, convicted in 2007 on terrorism-related charges.) Represented by a Yale Law School clinic, Padilla and his mother are now suing Yoo for being responsible for the treatment he endured as an “enemy combatant”.

The Times reports that U.S. District Court Judge Jeffrey White in San Francisco, appointed by President George W. Bush, seemed skeptical of the government’s argument that the case should be dismissed because Yoo is immune from suit and his actions could not be directly connected to Padilla’s treatment, noting that Yoo’s 2001 memo for the Office of Legal Counsel deciding that the president can override the Fourth Amendment’s protection against unreasonable searches and seizures was “a pretty scary position.”

Padilla was convicted in 2007 on terrorism-related conspiracy charges. In his lawsuit against Yoo, Padilla claims that the torture memorandums were directly responsible for his detention, interrogation and torture.

Interestingly, Padilla is not seeking large monetary damages for his treatment:  he’s asking for only $1. What he really wants, his lawyers say, is a declaration from the government that his incarceration and harsh treatment were wrong.

“Plaintiffs seek to vindicate their constitutional rights,” the complaint stated, “and ensure that neither Mr. Padilla nor any other person is treated this way in the future.”

Because President Obama has not said whether he would support either prosecutions of Bush officials or a truth commission, and proposals for investigatory commissions  have so far not won a majority of supporters in Congress, such private lawsuits function as an alternative means of getting at the truth of how torture came to be justified as official policy, and of obtaining some acknowledgment of government wrongdoing for the victims.

After Friday’s hearing, one of Padilla’s lawyers, Hope Metcalf, told The Times: “We were very encouraged by the court’s questions.”

The American Civil Liberties Union reports that as part of its lawsuit seeking information on detainee abuse, the government today provided new details about the content of interrogation videotapes destroyed by the CIA — specifically, that 12 depict so-called “enhanced interrogation techniques.” In court documents, the government also said it would produce a complete list of summaries, transcripts or memoranda related to the videotapes by March 20. However, the inventory of tapes provided to the court is so heavily redacted that it’s virtually all black ink.

“The government is needlessly withholding information about these tapes from the public, despite the fact that the CIA’s use of torture – including waterboarding – is no secret,” said Amrit Singh, staff attorney with the ACLU in a statement released today. “This new information only underscores the need for full and immediate disclosure of the CIA’s illegal interrogation methods. The time has come for the CIA to be held accountable for flouting the rule of law.”

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU. That motion is still pending.

Earlier this week, the CIA acknowledged it destroyed 92 tapes of interrogations. According to today’s documents, these tapes all related to just two detainees; 90 involved one, and the other two tapes showed the other. The tapes were not identified and processed for the ACLU in response to its Freedom of Information Act request back in 2005 seeking information on the treatment and interrogation of detainees in U.S. custody. The ACLU notes that the tapes were also withheld from the 9/11 Commission, which had specifically asked the CIA to hand over transcripts and recordings documenting the interrogation of CIA prisoners.

Legal documents in the case are available here.