Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

from the stay-tuned dept

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.

The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).

This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).

It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.

That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch’s counterarguments have merit. That its lawsuit seeks “only the disclosure of public records,” rather than to establish criminal or civil liability, does not render the Speech or Debate Clause inapplicable. Appellant Br. 10. To the contrary, Judicial Watch “is no more entitled to compel . . . production of documents . . . than it is to sue congressmen.” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). To the extent Judicial Watch maintains that “legislative independence is not at issue in this case” because it seeks “public records that are not confidential in nature,” it misunderstands the immunity afforded by the Speech or Debate Clause. Appellant Br. 10–11. Notwithstanding the records’ confidentiality, “legislative independence is imperiled” when a “civil action . . . creates a distraction and forces [congressmen] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503; see Brown & Williamson Tobacco Corp., 62 F.3d at 415.

The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.

Today, the court has no occasion to decide whether the Speech or Debate Clause bars disclosure of public records subject to the common-law right of access in all circumstances. Nor need it consider whether and how the application of the Clause relates to the two-step inquiry to determine whether the common-law right of access applies. See Washington Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir. 1994). The parties did not raise, and our precedent does not address those issues.

However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:

I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing....

She then more or less begs for a test case on this question:

We have never considered the Speech or Debate Clause’s application to a common law right of access claim and the parties simply cite a single district court case where the two doctrines were raised, Pentagen Technologies International v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In Pentagen Technologies, the plaintiffs brought a common law right of access claim against the Committee on Appropriations of the United States House of Representatives, seeking “to review and copy a series of investigative reports” that were not released to the public. 20 F. Supp. 2d at 42. The Committee on Appropriations asserted the reports were protected from disclosure by the Speech or Debate Clause. Id. at 43. Although the district court “conclude[d] that investigative reports [were] protected from compulsory disclosure by the Speech or Debate Clause,” it reached that conclusion only after determining that the investigative reports were “not ‘public records’ as defined by WLF II” and that “[t]here thus exist[ed] no common law right of access to the reports.” Id. at 45. If the Speech or Debate Clause in fact provided absolute protection from disclosure— including protection from a common law right of access claim—the district court’s “public records” analysis would have been unnecessary.

And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.

So... that's interesting.

As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.

That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.

Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:

Judge Henderson explained that if a sought document is a “public record,” the government’s interest in keeping the document secret should be balanced against the public’s interest in disclosure. Judicial Watch at *11. A “public record,” she notes, is “a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id., quoting WLF-II, 89 F.3d at 905.

The Torture Report is a public record under this longstanding framework and today’s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.

This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.

This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.

When asked about this new public access request, McClanahan told me:

Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.

I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report

ProPublica's Reporting Error Shows Why The Government Must Declassify Details Of Gina Haspel's Role In CIA Torture

from the please-explain dept

Last week, we wrote a bit about Donald Trump's nominee to head the CIA, Gina Haspel. That post highlighted a bunch of reporting about Haspel's role in running a CIA blacksite in Thailand that was a key spot in the CIA's torture program. Soon after we published it, ProPublica retracted and corrected an earlier piece -- on which much of the reporting about Haspel's connection to torture relied on. Apparently, ProPublica was wrong on the date at which Haspel started at the site, meaning that she took over soon after the most famous torture victim, Abu Zaubaydah, was no longer being tortured. Thus earlier claims that she oversaw his inhumane, brutal, and war crimes-violating torture were incorrect. To some, this error, has been used to toss out all of the concerns and complaints about Haspel, even though reporters now agree that she did oversee the torture of at least one other prisoner at a time when other CIA employees were seeking to transfer out of the site out of disgust for what the CIA was doing.

However, what this incident should do is make it clear that the Senate should not move forward with Haspel's nomination unless the details of her involvement is declassified. As Trevor Timm notes, ProPublica's error was not due to problematic reporting, but was the inevitable result of the CIA hiding important information from the public.

In its report, ProPublica was forced to use a combination of heavily censored CIA and court documents and anonymous sources to piece together what happened over a decade ago in the secret CIA prison Haspel ran. Many of the documents were made public only after years of Freedom of Information Act fights brought by public interest groups, while many other documents on Haspel’s CIA tenure remain classified.

These types of unintentional mistakes would be almost entirely avoidable if journalists did not have to read between the lines of ridiculous government redactions meant to cover up crimes.

The most obvious example of this is the Senate’s 500-page summary of the torture report it released in 2014. How many times is Haspel named in the torture report? We have no idea. The redactions on the report completely obscured the names of all participants in the torture program, including the CIA personnel involved, as well as their partners in crime from authoritarian dictatorships like Libya, Egypt, and Syria.

At the time of the report’s release, advocates proposed that CIA personnel should at least be identified by pseudonyms so that the public could understand how many people were involved and if a particular person was responsible for more than others. That proposal was rejected as well.

Because of that, mistakes like the one ProPublica made are inevitable -- because the CIA (and those involved in declassifying what little was released from the Senate's CIA torture report) made it inevitable. Conveniently, this allows the CIA to discredit journalists who are working to report on these important issues.

So this should give even more weight to the demands of various human rights groups to declassify the details of Haspel's involvement. There can be no legitimate national security interest in continuing to keep this information secret. The program was ended long ago. It's been confirmed that Haspel ran the site and was part of the process to destroy the tapes of what happened. But there are more details that must be revealed.

Indeed, the Daily Beast claims that it has separate confirmation that Haspel actually was "in a position of responsibility" during the Zubadaydah interrogation, though she wasn't present at the site. So it's possible that even ProPublica's "correction" is at least somewhat misleading. Which, again, is all the more reason to reveal to the public what actual authority and responsibility she had over the torture program.

And, as a side note, it's worth remembering that former CIA officer, John Kiriakou, was sent to jail for revealing the existence of the torture program. And now the woman who appears to have had authority over at least some of it (as well as the cover-up) may get to lead the CIA? Shouldn't our Senators at least demand a full public understanding of her role in all of it first?

Filed Under: cia, classification, gina haspel, journalism, torture, torture report, transparency
Companies: propublica

As Trump Nominates Torture Boss To Head CIA, Congresswoman Suggests It's Sympathizing With Terrorists To Question Her Appointment

from the say-what-now? dept

Update: Late this evening ProPublica retracted and corrected a story from last year, saying that Haspel was in charge of the Thai CIA prison site while Zubaydah was tortured. That does suggest that some of the accusations against Haspel actually should be blamed on her predecessor. As the correction notes, she did not arrive to run the base until October of 2002, after Zubaydah's torture had concluded. However the report quotes the NY Times saying that she did still oversee the torture of Abd al-Rahim al-Nashiri and that she was still involved in the destruction of the video tapes of the torture sessions -- both of which should be disqualifying from the job.

In addition, these kinds of mistakes wouldn't be made if the government actually came clean over what it did and who did it. Revealing who ran that prison site and what they did would not harm national security. It would provide an accurate accounting of what really went down. I'm sure that some Haspel supporters will argue that this correction mean that all of the concerns about Haspel are "fake news" even though that's clearly not true at all. Instead, this seems like even more evidence for why the details of her involvement needs to be declassified prior to facing confirmation hearings in the Senate. Our original article is below.

As you've probably heard, with the latest in the neverending rotating cast of characters that makes up the current Trump administration, a set of dominoes has been knocked over with the tweeted firing of Secretary of State Rex Tillerson and the nomination of CIA boss (and former Congressional Rep/longtime defender of surveillance and torture) Mike Pompeo to replace him. While Pompeo was a vocal supporter of the CIA's torture program, he didn't actually have any hand in running it. Instead, that distinction goes to Gina Haspel, whom Trump has nominated to take Pompeo's place. Haspel not only oversaw parts of the CIA's torture program, she was also directly involved with the destruction of the video tapes showing the torture procedures. The still classified 6,700 page Senate report on the program apparently contains a lot of details about the program that Haspel ran while running a CIA blacksite in Thailand. Annabelle Timsit has helpfully pulled together some details of what is currently known from the heavily redacted declassified executive summary (you may recall we spent years writing about the fight to just release that summary). What's stunning is that the program so disgusted CIA employees that some were at the "point of tears and choking up" and multiple people on site asked to be moved to other locations if the CIA was going to continue these torture techniques. From the report (see the update above, noting that these quotes were from a couple months before Haspel took over):

CIA personnel at DETENTION SITE GREEN reported being disturbed by the use of the enhanced interrogation techniques against Abu Zubaydah. CIA records include the following reactions and comments by CIA personnel:

• August 5, 2002: “want to caution [medical officer] that this is almost certainly not a place he’s ever been before in his medical career. … It is visually and psychologically very uncomfortable.”
• August 8, 2002: “Today’s first session … had a profound effect on all staff members present … it seems the collective opinion that we should not go much further … everyone seems strong for now but if the group has to continue … we cannot guarantee how much longer.”
• August 8, 2002: “Several on the team profoundly affected ... some to the point of tears and choking up.”
• August 9, 2002: “two, perhaps three [personnel] likely to elect transfer” away from the detention site if the decision is made to continue with the CIA’s enhanced interrogation techniques.
• August 11, 2002: Viewing the pressures on Abu Zubaydah on video “has produced strong feelings of futility (and legality) of escalating or even maintaining the pressure.” Per viewing the tapes, “prepare for something not seen previously.”

In other words, for all the people out there who insist this was not torture, even the CIA people working on the program clearly felt that it went way beyond the line.

Perhaps even more incredible is that Ali Soufan, the former FBI agent who interrogated Abu Zubaydah before the CIA's team of torturers took over, has written a damning article about that program:

I know firsthand how brutal these techniques were—and how counterproductive. In 2002, I interrogated an al-Qaeda associate named Abu Zubaydah. Using tried-and-true nonviolent interrogation methods, we extracted a great deal of valuable intelligence from Zubaydah—including the identities of the 9/11 mastermind Khalid Sheikh Mohammed and the would-be “dirty bomber” Jose Padilla, both of whom would be arrested shortly after. Yet some officials later tried to manipulate the record to make it seem as if this intelligence was gained through torture, even going so far as to misstate the date of Padilla’s arrest, which in fact occurred before Zubaydah or any other al-Qaeda suspect was waterboarded.

Unsurprisingly, the CIA’s own inspector general concluded that the torture program failed to produce any significant actionable intelligence; and I testified to the same effect under oath in the Senate. What’s worse, the program has gotten in the way of justice: To this day, we cannot prosecute terrorists such as the masterminds behind the USS Cole and 9/11 attacks, in large part because the evidence against them is tainted by torture.

Soufan also calls out Haspel's role in destroying the evidence of torture.

In 2005, Jose Rodriguez, the CIA’s counterterrorism chief, ordered the destruction of some 92 videotapes of the harsh methods being used on al-Qaeda suspects that the black site Haspel had once run. Rodriguez issued this order in defiance not only of the CIA’s own general counsel at the time, John Rizzo, but also of a federal court order. And to draft the cable ordering the tapes to be thrown into an “industrial-strength shredder,” Rodriguez turned to his then-chief of staff—Haspel.

Rodriguez was later criticized for his actions by the CIA’s inspector general; but true accountability—for the torture program itself, as well as for the destruction of evidence—has proved elusive. This gives rise to another set of questions that will need to be pressed in the Senate. Was Haspel pleased with the order she drafted, or troubled by it? Does she stand by Rodriguez’s public justification, that he was protecting the lives of his operatives, or his private one, documented in declassified emails, that the tapes would make him and his group “look terrible”? Above all, if the torture program was so valuable and necessary, why destroy the tapes at all?

Soufan also reiterates (as mentioned above) that "many professionals within the agency courageously chose to stand up against the enhanced techniques, walking away from black sites in protest and registering a large number of complaints." Haspel was a willing participant and leader in the effort. Soufan also notes that the CIA used the intelligence he obtained, not via torture, and lied to Congress about it, pretending that it came about via its failed and morally repulsive torture program.

Plenty of information about Haspel's involvement in both the torture program and the cover-up is still classified -- leading at least some Senators to call for declassifying that information. Rand Paul has been the most vocal opponent to the appointment of Haspel:

Paul said he is opposing Haspel due to her involvement in the enhanced interrogation program during the George W. Bush administration. He said she showed "joyful glee at someone who is being tortured."

"I find it just amazing that anyone would consider having this woman at the head of the CIA," Paul said.

This is a principled stand. And yet, he is being attacked for it. The most incredible attack came from Rep. Liz Chaney (whose father helped set up and defend the torture program), who directly claimed that Rand Paul questioning whether or not we want a torturer to lead the CIA was "defending and sympathizing with terrorists."

Let the insanity of that statement sink in for a moment. Here you have a member of Congress claiming that a Senator is "defending and sympathizing with terrorists" for merely suggesting that we shouldn't support having someone who ran the CIA torture program as the next CIA director. Even if you believe -- against all evidence, and against basic human decency -- that torture is a good thing to use against anyone, how is it possibly "sympathizing with terrorists" to suggest that such a person is not qualified to be CIA director? Does Cheney also believe that Soufan, the former FBI agent who actually got intelligence out of terrorists without torturing them is also "defending and sympathizing with terrorists" in stating:

And yet today, the candidate for the top job at the agency is someone who willingly participated in both the program and the attempted cover-up. We need to consider what kind of message this sends to people in the intelligence community and the wider government. Do things right, stand up for American values, and you will be ignored. Flout them, and you will be rewarded.

What kind of sick mind is so supportive of torture that she would argue that merely questioning whether this person should head the CIA is somehow siding with the terrorists? Politicians make really stupid statements all the time, but Liz Cheney's statement is positively jaw dropping in its blind obedience to what many have argued are war crimes by the US government. This kind of logic is the kind of logic that leads to very dangerous outcomes. It's beyond Machiavellian. It is not even that the ends justify the means (which would be bad enough), because the ends did not justify the means with the CIA's torture program. It's that merely questioning the means somehow makes you sympathetic to the cause of terrorists. That's a recipe for disaster. It allows no questioning. It allows no dissent. It allows no conscience. It is pure authoritarian evil.

Filed Under: ali soufan, cia, gina haspel, liz cheney, mike pomeo, rand paul, torture, torture report, war crimes

Erasing History: Trump Administration Returning CIA Torture Report To Be Destroyed

from the awful dept

Over the last few months, a battle has played out over what will happen to the 6,700 page "CIA Torture Report" that the Senate Intelligence Committee spent many years and approximately $40 million producing. The report apparently reveals all sorts of terrible details about how the CIA tortured people for little benefit (and great harm in other ways) and lied to Congress about it. While a heavily redacted executive summary was released, there is apparently significantly more in the full report. And if we, as a country, are to actually come to terms with what our nation did, this report should be made public and there should be a public discussion on our past failings.

Instead, it looks like the report is going to be returned and destroyed. Senator Richard Burr has been against the report from the beginning, and ever since he took over the Senate Intelligence Committee he's demanded that the administration return the report, arguing (totally against all evidence) that it was a work product of the Senate Intelligence Committee not meant for distribution to the executive branch. Of course, that's the exact opposite of what Senator Dianne Feinstein -- who spearheaded the effort to create the report -- has said. The intention was to understand what the CIA did and make sure the same mistakes were not repeated. And, in fact, Feinstein asked the executive branch agencies to put the document into their own records -- which would make the report subject to a FOIA request.

The previous administration did not give the report back to Burr, but did block those in the executive branch from reading it or from putting it into their records -- which has so far stymied FOIA requests. And now, the Trump administration has started returning the report to Burr to destroy:

The Trump administration has begun returning copies of a voluminous 2014 Senate report about the Central Intelligence Agency’s detention and interrogation program to Congress, complying with the demand of a top Republican senator who has criticized the report for being shoddy and excessively critical of the C.I.A.

The Trump administration’s move, described by multiple congressional officials, raises the possibility that copies of the 6,700-page report could be locked in Senate vaults for good — exempt from laws requiring that government records eventually become public. The C.I.A., the office of the Director of National Intelligence and the C.I.A.’s inspector general have returned their copies of the report, the officials said.

This is problematic on many, many levels. Feinstein had even asked Obama to declassify the report, before leaving office -- something he refused to do. Feinstein is not at all happy about this turn of events.

“I’m concerned and disappointed that Chairman Burr demanded the return of copies of the classified edition of the torture report. The fact that he would take this divisive action without notifying or consulting with the Democrats on the committee is a departure from the bipartisan nature of this committee. It’s particularly troubling he would take this divisive action while the committee is conducting its Russian investigation.

“The committee voted in March 2009 to initiate a report on harsh interrogation techniques used by the CIA on detainees during the Bush administration. After almost four years of hard work, the committee approved the report in December 2012. The CIA was afforded the opportunity to respond and where appropriate, changes were made and the CIA’s responses were included in the footnotes. The committee then voted to declassify and release the executive summary and the findings and conclusions in December 2014.

“Chairman Burr’s assertion that he, today, has authority over a final Senate report completed prior to him assuming the chairmanship is both alarming and concerning. This creates a dangerous precedent that a current chairman could question acts of previous congresses and countless historical reports and records and essentially nullify reports produced by a prior congress under a different chairman.

“No senator—chairman or not—has the authority to erase history. I believe that is the intent of the chairman in this case.

“I’m profoundly disappointed that CIA Director Pompeo would approve this action. Members, including myself, carefully questioned him during his confirmation process about his views on torture. He clearly stated his opposition to torture and made a commitment to read the full classified report. I very much doubt that he has had an opportunity to fulfill that commitment.

“The report is an important tool to help educate our intelligence agencies about a dark chapter of our nation’s history. Without copies of it, the lessons we’ve learned will be forgotten. The intelligence agencies have a moral, if not legal, obligation to retain every copy of this report for posterity.”

Senator Ron Wyden put out an even stronger statement:

“Attempts to erase history are the tactics of the insecure and the power hungry and have no place in a democracy. The torture report is a historical record that belongs to all Americans,” Wyden said. “This unprecedented move by Chairman Burr and the Trump administration could serve only one purpose -- to pave the way for the kind of falsehoods used to justify an illegal and dangerous torture program. For the sake of future generations of Americans, this report should be immediately returned to the government agencies who gave it up, disseminated widely within the government and most importantly, declassified for the American people.”

Assuming Burr gets back his copies and does, in fact, destroy them, there are still two possible other copies out there. The Trump administration (unlike the Obama administration) did, in fact, give a copy to the courts as was ordered by the judge in a case about the torture program. The other copy was apparently "preserved" in the Obama archives, where it will be kept for 12 years before it might be declassified. At this point that copy is, perhaps, the only chance that this detailed report won't be completely deleted from history.

Of course, the other possibility... is that someone along the way who had access to the report has kept a copy of it and decides to leak the report to the press. This would be doing a true service to history and help preventing future shameful episodes involving torture. Hopefully someone out there with access to the report -- and a conscience -- does the right thing.

Filed Under: cia, dianne feinstetin, donald trump, history, richard burr, ron wyden, torture report

Trump Tops Obama, Hands Over Full Torture Report To Court Previous Administration Refused To

from the still-a-lot-of-marks-in-the-'L'-column-tho dept

Credit where credit is due: Trump has done more to preserve the full CIA Torture Report than Obama ever did. On his way out the door, the DOJ fought on his behalf in federal court, arguing against an order to deposit the full report with the court clerk for preservation in the ongoing trial of Abd al-Rahim Al-Nashiri, who has alleged he was waterboarded while detained by the CIA.

Barack Obama did stuff one copy of the full report in his presidential archives before Trump took over, perhaps in response to fears that the incoming president might make the whole thing vanish. Trump did mention his support for the use of torture on more than one occasion, and it would have been somewhat inconvenient to have an official document laying around saying torture is bad and the US shouldn't do it.

Maybe it's oneupmanship or maybe the Trump's legal counsel feels it has too much on its plate already, but as the New York Times' Charlie Savage reports, Team Trump is handing over a full copy of the Torture Report to the court as requested.

[A]s the Obama era came to an end, two Federal District Court judges for the District of Columbia ordered the executive branch to provide a copy of the report to the court’s security officer, and today, on the deadline set by one of them, the Trump administration complied rather than appeal.

A one-page notice of compliance [PDF] was issued by the White House on February 10th.

Respondents are filing this notice to advise the Court that, in accordance with the orders entered in the above captioned cases on December 28, 2016, and January 23, 2017,2 on February 6, 2017, the Government deposited for the Court Information Security Officers (CISOs) for secure storage a complete and unredacted electronic copy of the Senate Select Committee on Intelligence Committee Study of the CIA’s Detention and Interrogation Program (2014). Specifically, the Government deposited the electronic copy that had been previously delivered to the Department of Justice Office of Legislative Affairs.

The last sentence of the notice kills me. The government apparently carried the electronic copy from the DOJ's Office of Legislative Affairs to the court clerk. The clunky wording suggests this copy no longer resides at the DOJ and that the court has this particular copy of an electronic document in its hands -- one that could be copied infinitely with no discernible loss in quality or content.

Considering the full report is still classified, there are definitely plenty of dissemination control procedures in place. But without any further information to go on, the notice gives the appearance that the DOJ Office of Legislative Affairs no longer has a copy of the full report. So, that can be put on the scorecard of places the document no longer can be found, even though it could be distributed anywhere with minimal effort, cost, or replication of anything more than 1s and 0s.

Filed Under: barack obama, cia, doj, donald trump, foia, senate, torture report

DOJ, Obama Administration Fight Order Requiring The Full CIA Torture Report To Be Turned Over To The Court

from the don't-touch-our-stuff dept

The Obama administration has responded to calls to declassify the full CIA Torture Report with a "will this do?" promise to lock up one copy in the presidential archives. While this ensures one copy of the full report will survive the next presidency, it doesn't make it any more likely the public will ever see more than the Executive Summary released in 2014.

Other copies may still be scattered around the federal government, many of them in an unread state. The Department of Defense can't even say for sure whether its copy is intact. Meanwhile, an ongoing prosecution in which the defendant is alleging being waterboarded by the CIA has resulted in an order to turn over a copy of the full report to the court.

This order would preserve a second full copy -- with this copy being as close as we've gotten so far to seeing it become part of the public record. Of course, the DOJ is challenging this court order on behalf of the Obama administration, which certainly never intended to participate in this much transparency. Charlie Savage of the New York Times notes (on his personal blog) that a motion has been filed seeking to reverse the court's preservation/deposit order.

[T]oday the Obama Justice Department decided to fight Judge Lamberth’s order rather than comply with it. It filed a motion asking to Judge Lamberth to reconsider his order, arguing that it raised constitutional concerns (interfering with communications between Congress and the executive branch) and was unnecessary anyway given the presidential records thing. And it said that if he didn’t reconsider, the executive branch will appeal.

The judge had ordered a copy to be filed with the Court Information Security Officer (CISO). The DOJ argues [PDF] that this isn't necessary because the CIA has its copy locked up real tight-like.

Reconsideration is appropriate primarily because intervening facts have rendered these provisions unnecessary. As explained below, a copy of the SSCI Report is already being preserved in the Executive Branch under the Presidential Records Act, 44 U.S.C. §§ 2201-2209, and documents underlying the Report have been and continue to be preserved under a 2007 preservation directive issued by the Director of the CIA. Further, no copy of the SSCI Report held by the CIA has been destroyed, nor has any improper destruction of evidence by the CIA occurred since the issuance of the 2007 preservation directive.

True, one copy is being preserved in Obama's presidential archives. But the second assertion is a bit more dubious. While it's technically true the CIA hasn't destroyed any copies of the Torture Report, its oversight has. In May of last year, it was discovered that the CIA's Inspector General had destroyed the copy he'd received, thanks to a string of counterproductive "normal business" decisions.

[L]ast August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

This prompted Dianne Feinstein to send a letter to someone who should have had an extra copy or three of the Torture Report lying around: CIA Director John Brennan.

As you may be aware. the office of the CIA Inspector General has misplaced and/or accidentally destroyed its electronic copy and disk of the Senate Select Committee on lntelligence's full 6,700-page classified Study of the CIA Detention and Interrogation Program. I write to request that as Director of the CIA, you provide a new copy of the Study to the office of the CIA IG immediately.

Your prompt response will allay my concern that this was more than an "accident." The CIA IG should have a copy of the full Study because the report includes extensive information directly related to the ongoing oversight of the CIA.

The accidental deletion of the IG's copy was possibly in violation of another preservation order stemming from ongoing FOIA litigation. The CIA was under orders to preserve its copy(ies), which means its oversight office should have been doing all it could to ensure its copy didn't disappear. If the CIA somehow managed to destroy its copies of the report, its oversight should have been in position to act as its backup, not to mention come down on it for any acts of impropriety. Instead, it took a copy and immediately -- if possibly inadvertently -- threw it away.

So, while the DOJ may firmly believe in all that is good and right and trustworthy about government officials holding onto damning documents, it can't rule out the possibility of human error. So, to better ensure preservation in accordance with the order, it should be less reluctant to hand over a copy to the court CISO, which would at least shift the culpability should this copy end up missing.

The obvious conclusion is that the outgoing administration (to say nothing of the incoming replacement) is still very interested in keeping the full report from ending up in the public's hands. Delivering a copy to the court makes it a part of the judicial process which, despite its tendency to seal documents and dockets far too frequently, is a much more open process than shuffling copies around from lockbox to lockbox within federal government agencies.

Filed Under: cia, cia torture report, doj, evidence, preservation, torture report

Obama Has Saved One Copy Of The Torture Report From Destruction, But What's Going To Happen To The Rest Of Them?

from the 'accidental'-incineration,-probably dept

Even if the White House won't declassify the full CIA Torture Report, at least we know one copy will be locked up in President Obama's archives for 12 years. That prevents Senator Burr and others from making the report disappear completely.

The White House copy isn't the only copy of the report, but at least we know where that one is. Other agencies have copies. Or had them. But they haven't read them. The CIA destroyed its copy of the report -- the sort of "accident" that often befalls damning reports in the hands of the agency targeted by them.

There's another copy sitting further up the hierarchy as well. Or is there? The Defense Department is supposed to have its own copy and as the department the CIA answers to, it should be doing what it can to ensure its copy doesn't disappear.

The Defense Department, however, may or may not have one -- depending on who you ask and when you ask it. Katherine Hawkins of Just Security notes that the DoD's copy -- if it even still exists -- won't be made a part of any public record anytime soon if it can help it.

Last week it emerged that the existence of the Defense Department’s copy is also in doubt. The chief prosecutor at the Guantanamo military commissions, Army Brig. Gen. Mark Martins, repeatedly refused to answer direct questions from the military judge about whether the Department of Defense still had its copy of the report. The Defense Department had acknowledged receipt of the full report in a court declaration in January 2015, and the U.S. government told both a federal court and the military commission judge that it would be preserved.

That was early last year, long before anyone inside the government was asking an outgoing president to declassify the report. That was also long before the Defense Department was having to discuss the existence of the document in court, thanks to the trial of alleged 9/11 attack mastermind Khalid Sheik Mohammed. Mohammed's attorney hinted that the document could very well vanish sometime after Inauguration Day and asked the presiding judge to push the DoD to preserve its copy as well.

Martins, however, refused to make any such promises, much less fully confirm the DoD's copy was still intact.

Nonetheless, asked whether DoD had kept its word and retained its copy, Martins repeatedly evaded the question, and finally replied, “I’m not prepared to answer the question. I can determine if there’s a way to find that information.”

Whatever that means.

Martins may not want the document to become part of the court record. Or it could mean Martins truly has no idea whether the DoD's copy is still intact. Either way, it's clear the Defense Department would rather not acknowledge the document's existence on the record. Fortunately, the judge has ordered the Defense Department to answer the question in writing within the next couple of days.

Hawkins points out that even if Obama doesn't want to declassify the document, he could at least make sure every other government agency with a copy takes care to preserve theirs as well.

Obama could remedy the situation by writing a letter to executive agencies instructing them to open the report and begin reviewing it for lessons learned, and replace any copies that were destroyed. The administration could also withdraw its opposition to detainees’ pending motions seeking preservation of the report as a court record in both the military commissions and habeas corpus cases.

As it stands now, all that has been guaranteed is the existence of a single copy -- the President's. And that one's just going to sit in his archives for the next dozen years, still out of reach of the general public.

Filed Under: cia, cia torture report, dod, history, president obama, torture, torture report

White House Tells Feinstein CIA Torture Report Will Be 'Preserved' But Not Declassified

from the because-of-course-not dept

Over the last few weeks, we've noted that Senator Dianne Feinstein has pushed for the CIA Torture Report that she originally commissioned be declassified (beyond the 500 page, heavily redacted, executive summary that was declassified). And then we wrote about two former Senators asking for President Obama to make sure that he preserve the report as a federal record. This is important. The full report, approaching 7,000 pages and costing $40 million to prepare, apparently details all sorts of wrongdoing by the CIA in torturing people in the Middle East. It's a comprehensive look into not just the horrific program by the CIA, but its failure to produce anything useful and the details of how the CIA lied about it. And here's the problem: Feinstein's colleague on the Senate Intelligence Committee, the current chair, Senator Richard Burr, wants the report destroyed.

Burr is claiming that the report is a Congressional Record and not a federal record, and thus has asked for all copies to be returned, where he can make sure they are destroyed and never to be read by anyone. This dispute has resulted in people in the Executive Branch being told not to read the report and not to enter it as a federal record, thus keeping it away from being subject to FOIA requests, and while everyone figures out what to do about Burr's request.

In response to Feinstein's more comprehensive request for declassification, top White House lawyer Neil Eggleston has written a letter saying two things: first that the document will be preserved under the Presidential Records Act, even if the copies at various agencies are returned to the Senate. This is good. It means that even if Burr gets the document back, he can't destroy every single copy, and also that it's likely that someday there will be a release of a declassified version.

I write to notify you that the full Study will be preserved under the Presidential Records Act (PRA). The determination that the Study will be preserved under the PRA has no bearing on copies of the Study currently stored at various agencies.

Then there's the bad news: that day won't be any day soon. Eggleston also informs Feinstein that there is no effort underway to declassify the report, meaning that it's simply not going to happen under this President at all. He does note that under the PRA, the information should be classified for twelve years:

Consistent with the authority afforded to him by the PRA, the President has informed the Archivist that access to classified material, among other categories of information, should be restricted for the full twelve years allowed under the Act. At this time, we are not pursuing declassification of the full Study.

This is a ridiculously weak cop-out. The study deserves to be declassified -- especially as the incoming President elect has said that he plans to reintroduce elements of the torture program and even push for it to go further than it did in the past. Having the public recognize the problems of the program -- not to mention other government officials, seems like it would be fairly important.

Of course, given that Trump and his team have suddenly picked a fight with the CIA -- including accusing the CIA of lying, perhaps he'll actually be more interested in exposing the CIA's lies detailed in the report. In this age of topsy-turvy news where everything has been flipped upside down, stranger things have happened...

Filed Under: archived, cia, cia torture report, dianne feinstein, neil eggleston, president obama, richard burr, torture report

Two Former Senators Call On Obama To Save The Full CIA 'Torture Report' From Being Buried

from the stay-of-obfuscation-requested dept

So far, very little has been done with the Senate Intelligence Committee's 6,700-page "Torture Report." Some agencies haven't even read it (and have blocked others from doing so). Others have been completely careless in the handling of their copies. Most of the federal government -- especially the White House -- just seems to want it to go away.

Dianne Feinstein, who helped keep the full document from being made public (costing requesters like Jason Leopold thousands in legal fees), now wants the report declassified. The Obama administration has shown little interest in doing so.

Two former long-term Senators, Carl Levin and Jay Rockefeller (who both retired last year) -- taking a look at the incoming administration -- say it's basically now or never if the full report is going to be saved. And these are two Senators who had plenty of experience and exposure to these issues. Rockefeller chaired the Senate Intelligence Committee at one point and Levin chaired the Senate Armed Services Committee.

Given President-elect Donald J. Trump’s unconscionable campaign pledge to “bring back waterboarding” and “a hell of a lot worse” — acts that would be illegal if carried out — President Obama’s leadership on this issue has never been more important.

Drawing on our decades of work in the Senate and our chairmanships of the Armed Services and Intelligence Committees, we are calling on President Obama to preserve the full torture report as a matter of profound public interest. We are not asking him to necessarily agree with all of the report’s findings, though we certainly hope he does, but we are asking him to protect it as an important piece of history.

The president could do this simply by allowing departments and agencies that already possess the document to enter it as a federal record, making it much more difficult for a future administration to erase.

So far, the public has only seen a summary of the report. While the summary, at 500 pages, is much better than nothing, the entire report could be buried forever by the new White House. If anyone owes the public some last-minute transparency, it's President Obama. Despite frequently claiming to head up the "most transparent" administration in history, the Obama White House has presided over more whistleblower prosecutions than all others combined and a steady increase in FOIA request denials by federal agencies.

Entering it into the public record would head off future attempts to memory-hole this important report, something that's already been attempted.

Senator Richard Burr... took the unusual step of trying to recall the full report that Senator Feinstein had distributed — to prevent it from ever being widely read or declassified. In this effort, Senator Burr has written to President Obama, insisting that the full report not only be returned but that it “should not be entered into any executive branch system of records.”

Since then the full report has been locked in limbo, with the Obama administration unwilling to even open the document, but also unwilling to return it to Senator Burr.

Even if Donald Trump hadn't already vocalized his support of the tactics the report condemned, the temptation to turn this into a partisan issue (Sen. Burr is a Republican) could possibly see this request granted. If it is, the report will be assigned to the historical dustbin. The executive summary will always point to its existence, but no one outside of a select few will ever have a chance to see the report in its entirety -- and the $40 million in taxpayer funds that was spent to research and write the report will go up in smoke too. That will make it that much easier for the incoming administration, and those beyond it, to start revising the CIA's history by whitewashing the details that were never made public in the first place.

Filed Under: carl levin, cia, cia torture report, donald trump, jay rockefeller, president obama, richard burr, torture report

Senator Feinstein Asks President Obama To Declassify Senate's CIA Torture Report

from the last-chance dept

Could President Obama actually declassify and release the full 6,800 page report on the massive failures of the CIA's torture program from a decade ago? While it seems unlikely, Senator Dianne Feinstein is urging the President to release the document, fearing that the massive report may disappear into the memory hole soon.

Some background: While Feinstein has been historically awful on basically anything having to do with reining in the US intelligence community, the one area that really seemed to get her attention and raise concerns was the CIA's torture regime. She assigned Senate Intelligence Committee staffers to work on a massive and detailed report on the CIA's torture program after it came out that a key official involved in the program had deliberately deleted videotape evidence about the program. The research and writing of the report went on for years and cost millions of dollars, and then resulted in another big fight over releasing a heavily redacted version of just the executive summary of the report (not to mention that the CIA also broke into the staffers' computers after it realized it had accidentally given the staffers a really damning document). The fight over releasing the paper was really, really ridiculous.

There were fights over what ridiculous things to redact, and then the White House put on a full court press against releasing the document, insisting that publicly releasing even a heavily redacted executive summary would inspire terrorist attacks. Even after an agreement was reached on the redactions, John Kerry still tried to block the release, again warning of potential attacks in response.

Eventually the heavily redacted executive summary was released, revealing what many had suspected: the CIA's torture program was a complete waste, providing nothing in terms of valuable intelligence, and also involved the CIA lying to Congress. Since then, though, there have been ongoing battles over the report. Also revealed: what a bunch of bullshit the claims were that the release of the report would inspire new attacks. It's been two years and there's no evidence the report inspired any hatred beyond what was already present.

While Feinstein made sure copies of the full report were delivered to various parts of the executive branch, insisting that the report should be read so that we don't repeat the mistakes of the past, most of them claim they never read it and also that there was nothing to learn from it. Then, after Senator Richard Burr took over the Senate Intelligence Committee he began to demand that the various copies of the report all be returned so they could be completely destroyed, erasing all of that evidence and reporting on the CIA's torture program. The CIA claims it "accidentally" deleted one of its own copies.

The ACLU tried to FOIA the full document but was rejected... and the courts refused to force the government to release the document.

There's every indication that a President Trump would have zero interest in releasing such a report, and probably would support the destruction of the remaining copies. And, because of that, it appears that Senator Feinstein is calling on the President to declassify the whole thing.

I think people need to see the full facts of the report. I believe they stand on their own. And I think it's very important, particularly since there is discussion or talk or allegations about - well, we're going to resume waterboarding, and, yes, we can torture people.

As the report at NPR notes, during the campaign, Trump eagerly endorsed bringing back the torture program, specifically calling out waterboarding and suggesting going even further than that.

Once again, here's an opportunity for President Obama to actually do something that would make a powerful statement before handing over the White House. Not only would it help provide tremendous transparency into a shameful episode in our very recent history -- a shameful episode that is at great risk of being repeated -- it would also prevent the report from being totally destroyed. As the NPR piece notes, Senator Burr is still fighting to get back the document to destroy it. That means there's a very good chance that if President Obama doesn't get the full torture report declassified, it will disappear forever. Of course, given the White House's (ridiculous) attempts to block the release of the exec summary, combined with Obama's terrible track record in letting the intelligence community get away with all sorts of stuff, I wouldn't hold my breath.

Filed Under: cia, dianne feinstein, donald trump, richard burr, torture report, waterboarding