A year ago, we were writing a ton on the famed Senate Intelligence Committee’s torture report. This report, which Committee staffers spent years on, cost $40 million, and clocked in at nearly 7,000 pages of detailed analysis of the US’s hugely questionable (both morally and legally) torture program in the wake of 9/11. After much fighting, the Senate finally released a heavily redacted executive summary, but since then there have been some questions about what happens with the full report. Senator Dianne Feinstein, who was (believe it or not!) the driving force behind the report, had copies of the full report delivered to the Defense Department, the CIA, the State Department and the Justice Department. However, there has been a lot of confusion over whether or not anyone actually read it. The DOJ clearly announced that officials had read the whole thing… but later claimed that no one had even opened the report. Obviously, the DOJ lied with one of those statements.
There had been some hope that ex-Senator Mark Udall might choose to release some of it from the Senate floor before leaving office, but that didn’t happen.
And, with the changing of the guard, the new head of the Senate Intelligence Committee, Richard Burr, demanded that all the federal government agencies that received the report should return it to him so he can destroy it and make sure that no one ever sees what’s in the report. As we noted, however, this whole thing seemed to be an effort to state publicly that the document was aCongressional record. That matters because Congressional records are not subject to FOIA requests. Executive branch records are subject to FOIA requests — and the ACLU has made a FOIA request to the exec branch for a copy of the report.
The DOJ has taken Burr’s lead and claimed that the report is a Congressional record, and that’salso why they insist that no one at the DOJ has opened it — to maintain that it has not become an executive branch record subject to FOIA. Not surprisingly, Senator Feinstein is pissed off about this — because her staffers spent years putting together this report, detailing massive abuses by the CIA and others in torturing people, and the whole point of it was to help the government learn how badly it messed up and to stop it from doing it again. But if no one reads it, then that won’t happen. And, the DOJ now says that not only has it not read it, it has instructed everyone in the exec branch not to read it for fear that reading it would make it subject to FOIA:
Nearly a year after the Senate released a declassified 500-page summary of the report, the fate of the entire document remains in limbo, the subject of battles in the courts and in Congress. Until those disputes are resolved, the Justice Department has prohibited officials from the government agencies that possess it from even opening the report, effectively keeping the people in charge of America’s counterterrorism future from reading about its past. There is also the possibility that the documents could remain locked in a Senate vault for good.
Senator Feinstein (along with Senator Pat Leahy) has sent a rather angry letter (reasonably so!) to Attorney General Loretta Lynch, expressing her strong displeasure over this state of affairs:
Dear Attorney General Lynch and Director Comey:
We firmly believe that appropriate DOJ and FBI officials must read the full 6,700-page Senate Intelligence Committee Study of the CIA’s Detention and Interrogation Program in order to understand what happened and draw appropriate lessons. This is exactly what Director Comey promised during his testimony before the Senate Appropriations Committee on March 12, 2015, when he said he would designate FBI officials to read the full, final version of the Committee’s Study and consider the lessons that can be learned from it. Director Comey also acknowledged that former FBI Director Bob Mueller ordered FBI agents not to participate in the CIA program. Unfortunately, as the executive summary of the Study makes clear, the Department of Justice was among those parts of the Executive Branch that were misled about the program, and DOJ officials’ understanding of this history is critical to its institutional role going forward.
We are gravely disappointed that, according to Assistant Attorney General Peter Kadzik’s letter dated August 5, 2015, the Department of Justice is citing a Freedom of Information Act (FOIA) case, ACLU v. CIA as an excuse to refuse to allow Executive Branch officials to review the full and final Study. This DOJ decision prevents the FBI and other parts of the Executive Branch from reading the full 6,700-page Study and learning from the mistakes of the past to ensure that they are not repeated. Further, personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.
The record in the FOIA case does not support DOJ’s decision. According to the court filings in the FOIA case, DOJ represented that it would “preserve the status quo” pending appeal, but the context in which that commitment arose makes clear that DOJ was agreeing not to return the Study to the Senate Intelligence Committee. DOJ’s commitment not to return the Study while the FOIA litigation is pending in no way precludes appropriately cleared individuals in the Executive Branch from reading the Study. We urge that you reconsider your position and disseminate the full and final Committee Study to appropriately cleared senior individuals in the Department of Justice and FBI, and instruct other appropriate federal departments to take the same position. For the same reason, we urge you to explicitly commit to retaining copies of the full 6,700-page Study.
We hope you agree that the legacy of this historic report cannot be buried in the back of a handful of Executive Branch safes, never to be reviewed by those who most need to learn from it. We look forward to hearing from you on this important issue.
The DOJ’s argument that it has to block anyone from reading the document, lest it magically switch from a Congressional document to an executive branch one is apparently puzzling to experts.
“It’s quite bizarre, and I cannot think of a precedent,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. He said there are any number of classified Senate documents that are shared with intelligence agencies and remain as Congressional records, even if they are read by members of the executive branch.
But it’s not at all bizarre when put into the simple context of recognizing that this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality). This is just another way to avoid facing up to the mistakes of the past, and conveniently using a FOIA lawsuit as a method for making sure this information remains in the dark.
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