Case 1:13-cv-01870-JEB Document 46-2 Filed 02/12/15 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,

v. No. 13-cv-01870 (JEB) CENTRAL INTELLIGENCE AGENCY, et al.

Defendants.

DECLARATION OF ASHLEY GORSKI

I, Ashley Gorski, a member of the Bar of the State of New York and admitted pro hac

vice to the Bar of this Court, declare under penalty of perjury as follows:

1. I am an attorney with the American Civil Liberties Union Foundation, one of the

Plaintiffs in this matter. I submit this declaration in support of Plaintiffs’ Opposition to

Defendants’ Motions to Dismiss and for Summary Judgment, and Plaintiffs’ Cross-Motion for

Partial Summary Judgment.

2. Attached hereto as Exhibit A is a true and correct copy of pages S6474 through S6476 of

the Congressional Record for December 10, 2014, containing former Senator Mark Udall’s

Senate floor speech about documents referred to as the “Panetta Review.” These Congressional

Record pages were downloaded from http://1.usa.gov/1vhQvtj.

Case 1:13-cv-01870-JEB Document 46-2 Filed 02/12/15 Page 2 of 6

* * *

I declare under penalty of perjury that the foregoing is true and correct.

Dated: February 11,2015 New York, New York

2 Case 1:13-cv-01870-JEB Document 46-2 Filed 02/12/15 Page 3 of 6

Exhibit A S6474 Case 1:13-cv-01870-JEBCONGRESSIONAL Document RECORD 46-2 Filed — SENATE 02/12/15 Page 4December of 6 10, 2014 by the way, on a partisan basis, even My goal from the start has been two- I believe it accomplishes the goals I when there are differences. But the fold. First, I have been committed to laid out and it tells the story that aisle sort of disappears when it comes correcting the public record on the needs to be told. to the Defense authorization bill, and CIA’s multiple misrepresentations to It also represents a significant and that is the way it should be. the American people, to other agencies essential step for restoring faith in the I yield the floor. in the executive branch, the White crucial role of Congress to conduct Mr. INHOFE. Mr. President, let me House, and to Congress. Second, my oversight. Congressional oversight is reclaim my time just to make one goal has been to ensure that the full important to all of government’s ac- other comment. The two people who truth comes out about this grim time tivities, but it is especially important are sitting here, Peter Levine on your in the history of the CIA and of our Na- for those parts of the government that side and John Bonsell on our side, their tion so that neither the CIA nor any fu- operate in secret, as the Church Com- compatibility in working together is ture administration repeats the griev- mittee discovered decades ago. The also unprecedented. It doesn’t happen ous mistakes this important oversight challenge the Church Committee mem- very often. I can’t speak for the Sen- work reveals. bers discovered are still with us today: ator from Michigan, but I can speak for The process of compiling, drafting, how to ensure that secret government myself, to say that without these two redacting, and now releasing this re- actions are conducted within the con- working together I sure could not have port has been much harder than it fines of the law. The release of this ex- participated in a meaningful way. So I needed to be. It brings no one joy to ecutive summary is testament to the thank them as well. discuss the CIA’s brutal and appalling power of oversight and the determina- Mr. LEVIN. The Senator from Okla- use of torture or the unprecedented ac- tion of Chairman FEINSTEIN and the homa is speaking for both of us, I can tions that some in the intelligence members of this committee to dog- assure him, with his comments and so community and administration have gedly beat back obstacle after obstacle many other comments he made. taken in order to cover up the truth. in order to reveal the truth. I will yield to the Senator from Colo- A number of my colleagues who have There are a number of thank-yous rado, but first I wish to thank him for come to the floor over the past 24 hours that are in order. I start by thanking the great contribution he has made to and discussed this report have referred the chairman for her courage and per- our committee. I think he is planning to 9/11. I, too, will never forget the fear, sistence. I also thank the committee on speaking on a different subject. He the pain, and the anger we all felt on staff director, David Grannis; the staff has played a major role on the Intel- that day and in the days that followed. lead for the study, Dan Jones; and his ligence Committee. I look forward to Americans were demanding action core study team, Evan Gottesman and reading, if not hearing, his remarks on from our government to keep us safe. Chad Tanner. They toiled for nearly 6 the subject on which I know he has Everyone, myself included, wanted to years to complete this report. They spent a good deal of time. Although he go to the ends of the Earth to hunt then shepherded it through the redac- has had perhaps more visibility in down the terrorists who attacked our tion process, all the while giving up terms of the Intelligence Committee, Nation and to make every effort to pre- their nights, weekends, vacations, and he has been a major contributor on the vent another attack. Although we all precious time with family and friends Armed Services Committee. I can’t say shared that goal, this report reveals in an effort to get to the truth of this we will miss him because I will not be how the CIA crossed a line and took secret program for the members of the here, but they will miss the Senator our country to a place where we vio- committee, the Senate, and now the from Colorado. lated our moral and legal obligations American people. The PRESIDING OFFICER (Ms. in the name of keeping us safe. As we They have been assisted by other HEITKAMP). The Senator from Colo- know now, this was a false choice. Tor- dedicated staff, including my designee rado. ture didn’t keep us safer after all. By on the committee, Jennifer Barrett. We Mr. UDALL of Colorado. Madam releasing the Intelligence Committee’s would not be where we are today with- President, before I start my remarks landmark report, we reaffirm we are a out them. I am grateful, beyond words, on the historic day which was yester- nation that does not hide from its past for their service and dedication. I want day—when it comes to the publication but must learn from it and that an them to know our country is grateful of our long-in-the-making report on honest examination of our short- too. the CIA’s torture program—I wish to comings is not a sign of weakness but Let me turn to the study itself. Much thank the chairman for his leadership, the strength of our great Republic. has been written about the significance his mentorship, and his friendship. I From the heavily redacted version of of the study. This is the study. It is a also am proud obviously to be a part of the executive summary first delivered summary of the CIA’s detention and in- the Armed Services Committee and to to the committee by the CIA in Au- terrogation program. I want to start by have chaired the Strategic Forces Sub- gust, we made significant progress in saying I believe the vast majority of committee. Again, I extend my thanks clearing away the thick, obfuscating CIA officers welcome oversight and be- to the good men and women in uni- fog these redactions represented. lieve in the checks and balances that form, as did my good friend from Okla- As Chairwoman FEINSTEIN has said, form the very core of our Constitution. homa. The NDAA bill is a crucial task our committee chipped away at over I believe many rank-and-file CIA offi- in front of us. I look forward to one of 400 areas of disagreement with the ad- cers have fought internally for and sup- my last votes as a Senator from the ministration on redactions down to ported the release of this report. Unfor- great State of Colorado, and I look for- just a few. tunately, again and again, these hard- ward to casting a vote in favor of the We didn’t make all the progress we working public servants have been Defense authorization bill. wanted to and the redaction process poorly served by the CIA’s leadership. Again, I wish to thank my two itself is filled with unwarranted and Too many CIA leaders and senior offi- friends who have mentored me and who completely unnecessary obstacles. Un- cials have fought to bury the truth have led our committee with great elan fortunately, at the end of the day, while using a redaction pen to further and intelligence. what began as a bipartisan effort on hide this dark chapter of the Agency’s SSCI STUDY OF THE CIA’S DETENTION AND the committee did not end as such, history. INTERROGATION PROGRAM even after my colleagues on the other The document we released yesterday Yesterday was a historic day. Almost side of the aisle were repeatedly urged is the definitive, official history of 6 years after the Senate Intelligence to participate with us as partners. what happened in the CIA’s detention Committee voted to conduct a study of As my friends in the Senate know, I and interrogation program. It is based the CIA’s detention and interrogation am a legislator who goes out of his way on more than 6 million pages of CIA program and nearly 2 years after ap- to form bipartisan consensus. However, and other documents, emails, cables, proving the report, the American peo- it became clear that was not possible and interviews. This 500-page study, ple will finally know the truth about a here and that is regrettable. this document, encapsulates the facts very dark chapter in our Nation’s his- But all told, after reviewing this drawn from the 6,700-page report, tory. final version of the committee’s study, which is backed up by 38,000 footnotes.

VerDate Sep 11 2014 07:31 Dec 11, 2014 Jkt 049060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G10DE6.012 S10DEPT1 emcdonald on DSK67QTVN1PROD with SENATE December 10, Case2014 1:13-cv-01870-JEBCONGRESSIONAL Document RECORD 46-2 Filed — SENATE 02/12/15 Page 5 of 6 S6475 This is a documentary that tells of to lead by example’’ in correcting our contractors hired to read, multiple the program’s history based on the mistakes, one would think this admin- times, each of the 6 million pages of CIA’s own internal records. Its prose is istration is leading the efforts to right documents produced before providing dry and spare, as you will soon see for the wrongs of the past and ensure the them to the committee staff. We know yourself. It was put together methodi- American people learn the truth about about the nearly 1,000 documents that cally, without exaggeration or embel- the CIA’s torture program. Not so. the CIA electronically removed from lishment. This study by itself—using In fact, it has been nearly a 6-year the committee’s dedicated database on the CIA’s own words—brings the truth struggle—in a Democratic administra- two occasions in 2010, which the CIA to light, and that is what it was in- tion no less—to get this study out. Why claimed its personnel did at the direc- tended to do. has it been so hard for this document tion of the White House. Of course we The study looked carefully at the to finally see the light of day? Why know about the Panetta review. CIA’s own claims—most notably that have we had to fight tooth and nail I turn to the Panetta review. I have the so-called enhanced interrogation every step of the way? The answer is provided more information on the techniques used on detainees elicited simple: Because the study says things events that led up to the revelation in- unique, otherwise unobtainable intel- that former and current CIA and other cluded in the Panetta review in a set of ligence that disrupted terrorist plots government officials don’t want the additional views that I submitted for and saved lives. It debunks those American public to know. For a while the committee’s executive summary, claims conclusively. I worried that this administration but I will summarize them. The CIA repeatedly claimed that would succeed in keeping this study en- From the beginning of his term as using these enhanced interrogation tirely under wraps. CIA Director, John Brennan was open- techniques against detainees was the While the study clearly shows that ly hostile toward and dismissive of the only way to yield critical information the CIA’s detention and interrogation committee’s oversight and its efforts about terrorist plotting. But when program itself was deeply flawed, the to review the detention and interroga- asked to describe this critical informa- deeper, more endemic problem lies in tion program. During his confirmation tion and detail which plots were the CIA, assisted by a White House hearing, I obtained a promise from thwarted, the CIA provided exagger- that continues to try to cover up the John Brennan that he would meet with ated versions of plots and truth. It is this deeper problem that il- committee staff on the study once con- misattributed information that was ob- lustrates the challenge we face today: firmed. After his confirmation, he tained from traditional intelligence reforming an agency that refuses to changed his mind. collection, claiming it came from the even acknowledge what it has done. In December 2012, when the classified use of interrogation techniques that This is a continuing challenge that the study was approved in a bipartisan are clearly torture. CIA’s oversight committees need to vote, the committee asked the White This study shows that torture was take on in a bipartisan way. Those who House to coordinate any executive not effective, that it led to fabricated criticize the committee’s study for branch comments prior to declassifica- information, and its use—even in se- overly focusing on the past should un- tion. The White House provided no cret—undermined our security and our derstand that its findings directly re- comment. Instead, the CIA responded country more broadly. Our use of tor- late to how the CIA operates today. for the executive branch nearly 7 ture and I believe the failure to truly For an example of how the CIA has months later, on June 27, 2013. acknowledge it continues to impair repeated its same past mistakes in The CIA’s formal response to the America’s moral leadership and influ- more recent years, look at the section study under Director Brennan clings to ence around the world, creates distrust of the executive summary released yes- false narratives about the CIA’s effec- among our partners, puts Americans terday that deals with the intelligence tiveness when it comes to the CIA’s de- abroad in danger, and helps our en- on the courier that led to Osama bin tention and interrogation program. It emies’ recruitment efforts. Laden. That operation took place includes many factual inaccuracies, de- Senior CIA leaders would have you under this administration in May of fends the use of torture, and attacks believe their version of the truth—pro- 2011. After it was over, the CIA coordi- the committee’s oversight and find- moted in CIA-cleared memoirs by nated to provide misinformation to the ings. I believe its flippant and former CIA Directors and other CIA White House and its oversight commit- dismissive tone represents the CIA’s and White House officials—that while tees suggesting the CIA torture pro- approach to oversight—and the White there was some excesses in its deten- gram was the tipoff information for the House’s willingness to let the CIA do tion and interrogation program, the courier. That is 100 percent wrong and whatever it likes—even if its efforts CIA did not torture. Their version signifies the Agency leadership’s per- are armed at actively undermining the would have you believe that the CIA’s sistent and entrenched culture of mis- President’s stated policies. program was professionally conducted, representing the truth to Congress and It would be a significant disservice to employing trained interrogators to use the American people. This example let the Brennan response speak for the so-called enhanced interrogation tech- also illustrates again the dangers of CIA. Thankfully, it does not have to. niques on only the most hardened and not reckoning with the past. So while I There are some CIA officials and offi- dangerous terrorists. agree with my colleagues on the com- cers willing to tell it straight. In late But as Professor Darius Rejali writes mittee who argue that doing oversight 2013, then-CIA General Counsel Ste- in his book ‘‘Torture and Democracy,’’ in real time is critical, I believe we phen Preston answered a series of ques- ‘‘To think professionalism is a guard cannot turn a blind eye to the past tions that I asked about his thoughts against causing excessive pain is an il- when the same problems are staring us on the Brennan response as part of his lusion. Instead, torture breaks down in the face in the present. Oversight by Armed Services Committee nomination professionalism’’ and corrupts the or- willful ignorance is not oversight at hearing to be General Counsel of the ganizations that use it. all. Defense Department. This is exactly what happened with In Chairman FEINSTEIN’s landmark His answers to the questions about the CIA’s detention and interrogation floor speech earlier this year, she laid the program contrasted sharply with program. Without proper acknowledge- out how the CIA pushed back on our the Brennan response. For instance, he ment of these truths by the CIA and committee’s oversight efforts. Thanks stated matter of factly that from his the White House, it could well happen to her speech, we know about the his- review of the facts, the CIA provided again. tory of the CIA’s destruction of inter- the committee with inaccurate infor- In light of the President’s early Exec- rogation videotapes and about what mation regarding the detention and in- utive order disavowing torture, his own motivated her and her colleagues to terrogation program. I have posted on recent acknowledgement that ‘‘we tor- begin the broader committee study in line my questions to Mr. Preston, tured some folks’’ and the Assistant 2009. We know about the CIA’s insist- along with his answers. Secretary of State Malinowski’s state- ence on providing documents to the Stephen Preston was not alone in ments last month to the U.N. Com- committee in a CIA-leased facility and having the moral courage to speak mittee Against Torture that ‘‘we hope the millions of dollars the CIA spent on frankly and truthfully about the CIA’s

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As he stated at the time, today, to disclose some of its key find- CIA ’s illegal search was conducted out ‘‘The safety of the American people de- ings and conclusions on the Senate of concern that the committee staff pends on our ability to learn lessons floor for the public record, which fly di- was provided with the Panetta review. from the past while staying focused on rectly in the face of claims made by It demonstrates how far the CIA will the threats of today and tomorrow.’’ senior CIA officials past and present. go to keep its secrets safe. Instead of The Director’s review group looked For example, as I mentioned earlier, asking the committee if it had access at the same CIA documents that were on a number of key matters, the Pa- to the Panetta review, the CIA being provided to our committee. They netta review directly refutes informa- searched, without authorization or no- produced a series of documents that be- tion in the Brennan response. In the tification, the committee computers came the Panetta review. As I dis- few instances in which the Brennan re- that the agency had agreed were off cussed in late 2013, the Panetta review sponse acknowledges imprecision or limits. corroborates many of the significant mischaracterization relative to the de- In so doing, the agency might have findings of the committee’s study. tention interrogation program, the Pa- violated multiple provisions of the Moreover, the Panetta review frankly netta review is refreshingly free of ex- Constitution as well as Federal crimi- acknowledges significant problems and cuses, qualifications, or caveats. nal statutes and Executive Order 12333. errors made in the CIA’s detention and The Panetta review found that the More troubling, despite admitting be- interrogation program. Many of these CIA repeatedly provided inaccurate in- hind closed doors to the committee formation to the Congress, the Presi- same errors are denied or minimized in that the CIA conducted the search, Di- dent, and the public on the efficacy of the Brennan response. rector Brennan publicly referred to its coercive techniques. The Brennan As Chairman FEINSTEIN so eloquently ‘‘spurious allegations about CIA ac- outlined in her floor speech on March response, in contrast, continues to in- tions that are wholly unsupported by 11 of this year, drafts of the Panetta re- sist the CIA’s interrogations produced the facts.’’ view have been provided by the CIA un- unique intelligence that saved lives. He even said such allegations of com- knowingly to our committee staff Yet the Panetta review identified doz- puter hacking were beyond ‘‘the scope ens of documents that include inac- years before within the 6 million pages of reason.’’ The CIA then made a crimi- curate information used to justify the of documents it had provided. nal referral to the Department of Jus- So when the committee received the use of torture and indicates that the tice against the committee staff who Brennan response, I expected a recogni- inaccuracies it identifies do not rep- were working on the study. Chairman resent an exhaustive list. The Panetta tion of errors and a clear plan to en- FEINSTEIN believed these actions were review further describes how detainees sure that the mistakes identified would an effort to intimidate the committee provided intelligence prior to the use not be repeated again. Instead—this is staff, the very staff charged with CIA of torture against them. a crucial point—instead, the CIA con- It describes how the CIA, contrary to oversight. I strongly agree with her tinued not only to defend the program its own representations, often tortured point of view. The CIA’s inspector general subse- and deny any wrongdoing but also to detainees before trying any other ap- quently opened an investigation into deny its own conclusions to the con- proach. It describes how the CIA tor- the CIA’s unauthorized search and trary found in the Panetta review. tured detainees, even when less coer- In light of those clear factual dispari- cive methods were yielding intel- found, contrary to Director Brennan’s ties between the Brennan response and ligence. The Panetta review further public protestations, that a number of the Panetta review, committee staff identifies cases in which the CIA used CIA employees did, in fact, improperly grew concerned that the CIA was coercive techniques when it had no access the committee’s dedicated com- knowingly providing inaccurate infor- basis for determining whether a de- puters. The investigation found no mation to the committee in the tainee had critical intelligence at all. basis for the criminal referral on the present day, which is a serious offense, In other words, CIA personnel tor- committee staff. The IG also found and a deeply troubling matter for the tured detainees to confirm they did not that the CIA personnel involved dem- committee, the Congress, the White have intelligence, not because they onstrated a ‘‘lack of candor’’ about House, and our country. thought they did. Again, while a small their activities to the inspector gen- The Panetta review was evidence of portion of this review is preserved in eral. that potential offense. So to preserve our committee spaces, I have requested However, only a 1-page unclassified that evidence, committee staff se- the full document. Our request has summary of the IG’s report is publicly curely transported a printed portion of been denied by Director Brennan. I will available. The longer classified version the Panetta review from the CIA-leased tell you, the Panetta review is much was only provided briefly to Members facility to the committee’s secure of- more than a ‘‘summary’’ and ‘‘incom- when it was first released. I had to fices in the Senate. This was the proper plete drafts,’’ which is the way Mr. push hard to get the CIA to provide a and right thing to do, not only because Brennan and former CIA officials have copy for the committee to keep in its of the seriousness of the potential characterized it, in order to minimize own records. Even the copy in com- crime, but also in light of the fact that its significance. I have reviewed this mittee records is restricted to com- the CIA had previously destroyed inter- document. It is as significant and rel- mittee members and only two staff rogation videotapes without authoriza- evant as it gets. members, not including my staff mem- tion and over objections of officials in The refusal to provide the full Pa- ber. the Bush White House. netta review and the refusal to ac- After having reviewed the IG report In my view, the Panetta review is a knowledge facts detailed in both the myself again recently, I believe even smoking gun. It raises fundamental committee study and the Panetta re- more strongly that the full report questions about why a review the CIA view lead to one disturbing finding: Di- should be declassified and publicly re- conducted internally years ago and rector Brennan and the CIA today are leased, in part because Director Bren- never provided to the committee is so continuing to willfully provide inac- nan still refuses to answer the commit- different from the official Brennan re- curate information and misrepresent tee’s questions about the search. sponse and so different from the public the efficacy of torture. In other words, In March, the committee voted statements of former CIA officials. the CIA is lying. This is not a problem unanimously to request responses from That is why I asked for a complete of the past but a problem that needs to Director Brennan about the computer copy of the Panetta review at a Decem- be dealt with today. search. The chairman and vice chair- ber 2013 Intelligence Committee hear- Let me turn to the search of the In- man wrote a letter to Director Bren- ing. telligence Committee’s computers. nan, who promised a thorough response

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