Court rejects effort to release ‘torture report’

A federal appeals court on Friday blocked an effort to release the full version of a controversial Senate report about the CIA’s former brutal interrogation practices, claiming that the document is not subject to the Freedom of Information Act (FOIA).

In a unanimous opinion, three judges on the U.S. Court of Appeals for the D.C. Circuit ruled that the document is officially controlled by Congress, not the Obama administration. Congressional documents are exempt from the open records law.

{mosads}The ruling is likely to dim the hopes of civil liberties advocates who have hoped to force the release of the full 6,000-page version of the Senate Intelligence Committee’s “torture report.” A 500-page executive summary was released in late 2014, but the full version remains classified. 

“[T]he full report always has been a congressional document subject to the control of the Senate [Intelligence] Committee,” Judge Harry Edwards wrote on behalf of the three-judge panel.

Instead, the Senate panel maintained “continuous control” over the document, he declared.

Democrats say the report contains damning details about what were called “enhanced interrogation techniques” by the CIA under former President George W. Bush, which included practices such as stress positions, waterboarding and sleep deprivation. The executive summary, issued after intense negotiations with U.S. intelligence officials and shortly before Democrats were set to relinquish power in the Senate, accuses the CIA of misleading its overseers in Washington and implementing the practices despite lack of results.

Republicans on the committee have refuted the conclusions, noting that the report authors did not conduct any new interviews as part of their research.  

The American Civil Liberties Union (ACLU), which brought the lawsuit trying to expose the report, claimed that the Senate panel gave up its control of the report when drafts were circulated to executive branch agencies.

In Friday’s 21-page opinion, the appeals court judges disagreed, pointing to a 2009 Senate letter establishing a framework for working on the report.

Documents created as part of the review, the letter asserted, “remain congressional records in their entirety and disposition and control over these records, even after the completion of the committee’s review, lies exclusively with the committee.”

That letter “makes it plain that the Senate committee intended to control any and all of its work product, including the full report, emanating from its oversight investigation of the CIA,” Edwards ruled.

“The committee effectively stamped its control over the full report when it wrote the terms of the letter.”

An ACLU spokesman said that the organization was considering its options for appealing the decision.

The ruling “wrongly relies on a years-old agreement between the committee and the CIA that didn’t apply to the final version of the report,” said Hina Shamsi, the ACLU lawyer who argued the case, in a statement.

“The court should have credited the committee’s clear intent to disseminate the torture report widely to the executive branch,” she added. “This decision has the disappointing result of keeping the full truth about the CIA torture program from the American public, and we’re considering our options for appeal.”

Senate Republicans have made clear that they want the full report kept secret.

Shortly after Republicans took control of the Senate last year, Intelligence Committee Chairman Richard Burr (R-N.C.) undertook a vigorous effort to reclaim copies of the full report that had been sent to federal agencies around Washington, presumably to prevent it from ever being subject to FOIA.

Indications are that various arms of the Obama administration agreed with his position. Multiple agencies declined ever to open the full report, and the State Department stamped it with a warning: “Congressional Record — Do Not Open, Do Not Access.”  

A lower court previous ruled that the full report was not subject to the open records law last year.

The production of the report created a major rift between the Senate Intelligence Committee and the CIA, after each accused the other of hacking into their respective sides of a walled-off computer network used to pass files back and forth. 

At some point during the committee’s research, staffers got hold of draft analysis of the CIA’s “enhanced interrogation program,” dubbed the “Panetta review,” and the spy agency tried to understand how. In the wake of the episode, multiple lawmakers called on CIA Director John Brennan to resign, claiming that the intrusion into Senate staffers’ files constituted unwarranted spying on its congressional overseers. 

Details from the public summary of the Senate committee’s report are currently being used as part of a lawsuit against a pair of CIA contractors, on behalf of three men subject to the agency’s harsh treatment. 

—This story was updated at 11:38 a.m.