Acting for two investigative journalists, the Media Freedom & Information Access Clinic has sued the Central Intelligence Agency for silencing the top FBI interrogator of Guantanamo detainee Abu Zubaydah. The lawsuit alleges a CIA effort to mislead the American public about the effectiveness of torture.
The lawsuit was filed on December 3, 2018, in federal court in the Southern District of New York on behalf of Pulitzer Prize-winning journalist Raymond Bonner and Academy Award-winning documentarian Alex Gibney. Bonner and Gibney are collaborating on a documentary about the CIA’s use of so-called “enhanced interrogation techniques” after 9/11. The film focuses on the use of EITs on Abu Zubaydah, who was subjected to waterboarding at least 83 times after being secretly detained as a suspected member of al-Qaeda.
For the documentary, Bonner and Gibney are seeking to interview former FBI Special Agent Ali Soufan, who was the FBI’s lead interrogator of Zubaydah. Soufan interrogated Zubaydah himself while Zubaydah was held in a secret CIA prison in Thailand and witnessed some of the CIA’s initial experimental use of EITs on Zubaydah, according to the lawsuit. After leaving the FBI, Soufan wrote The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, in which he discussed his time as an FBI interrogator. While the FBI approved his book for publication, the CIA redacted large portions and he was forced to publish with entire pages blacked-out. Soufan maintains that none of the redacted information is properly classified.
Soufan has been a vocal critic of the CIA’s use of EITs, claiming that EITs were ineffective in leading to actionable intelligence. Bonner and Gibney want to interview Soufan about the interrogation of Zubaydah, and Soufan wishes to speak to them, but will not speak about anything the CIA redacted from his book. Soufan has a credible concern of prosecution if he discusses information the CIA considers to be classified, according to the clinic.
MFIA’s lawsuit seeks to lift the CIA’s gag on Soufan so that Bonner and Gibney may exercise their First Amendment right to receive truthful information. The complaint alleges that none of the information Soufan is currently gagged from discussing is properly classified because information regarding the CIA’s use of EITs has been officially acknowledged and is now publicly available. The complaint also alleges that the CIA’s redactions are part of a politically-motivated effort to mislead the public about the effectiveness of EITs, since the CIA has approved for publication other books detailing the same events by supporters of the CIA’s use of EITs.
Clinical lecturers David A. Schulz ’78 and Charles Crain, students David Froomkin ’20 and Katrin Marquez ’20, and Ballard Spahr LLP attorneys Joe Slaughter and Steven Zansberg all worked on this matter.
The Yale Law School Media Freedom and Information Access Clinic is a legal services clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The clinic is an initiative of the Information Society Project at Yale Law School and is funded by the Floyd Abrams Institute for Freedom of Expression.