National Security

Court skeptical of releasing secret ‘torture’ report

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Two federal judges appeared unwilling Thursday to force the release of a 6,900-page Senate study about the CIA’s harsh interrogation and rendition practices under President George W. Bush.

Judges on the U.S. Court of Appeals for the D.C. Circuit indicated on Thursday they are reluctant to agree with the American Civil Liberties Union’s (ACLU) argument that the report should be subject to the Freedom of Information Act (FOIA). The government has claimed that the report was a product of Congress, which is exempt from FOIA.

{mosads}“The question is whether Congress gave up, absolutely, the authority that they had” over the report, Judge Harry Edwards said during Thursday’s oral arguments. 

It “doesn’t look like” they did, Edwards said.

“If Congress has retained control, it retains control,” he added.

Democrats on the Senate Intelligence Committee released a 500-page executive summary of the explosive report in late 2014, claiming that their work showed the CIA engaged in barbaric and ineffective practices of torture while misleading its overseers during the Bush administration.

The analysis has been dubbed by some as the “torture report” because of its detailed claims about waterboarding, “rectal rehydration” and other brutal practices of detention and interrogation. 

But the full report has never been released — and never will be, if the government has its way.

The 2014 report was the product of years of research and analysis by Senate staffers. The process of compiling the report led to charges that the CIA had violated constitutional protections in the separation of powers by searching the Senate’s side of a walled-off computer network after committee staffers got a hold of a set of secret internal documents.

The report’s conclusions prompted government officials to grapple with the legacy of Bush’s aggressive war on terror.

“We tortured some folks,” President Obama said in an appearance at the White House after the public summary was released. 

After Republicans took control of the Senate in 2015, new Intelligence Committee Chairman Richard Burr (R-N.C.) tried to bring all copies of the final report back to Congress, apparently to prevent it from being subject to FOIA.

The ACLU has sued to bring the document to light, claiming that the government has an obligation to hand it over under FOIA. 

But because FOIA does not apply to Congress, the advocacy group first has to prove that the report became a document of the CIA when lawmakers sent it over in 2014.

Hina Shamsi, the ACLU’s national security project director, pointed to previous court decisions putting the onus on Capitol Hill to reassert that documents belong to it and not outside agencies.

“Congress actually has to clearly assert control,” she told judges. “Right now the record is silent in respect to the assertion of control.” 

To peel back the curtain, the appeals court panel would have to overrule a lower court decision from last year, declaring that the report was a product of Congress and not subject to FOIA. 

Edwards and Judge Sri Srinivasan — who was previously on Obama’s short list to be nominated to the Supreme Court — appeared skeptical of the ACLU’s arguments on Thursday.

A 2009 Intelligence Committee letter to the CIA laying out the ground rules for compiling the report could be read as an assertion of Congress’s power over the final report, they said. 

“We still might look at the 2009 letter as embodying an assumption of the committee,” Srinivasan said.

However, Srinivasan did raise questions to the government about whether that 2009 letter might be too broad, and therefore irrelevant. He also wondered whether the committee’s 2014 decision to send the report to the CIA for internal dissemination overruled its previous assertion of control.

“You could also have a situation in which the transmission trumps the generation,” he said. 

The third judge on the three-judge panel, Judge David Tatel, did not appear during oral arguments on Thursday but will catch up from transcripts. He was assigned to the case just a day before, after Chief Judge Merrick Garland — who was originally scheduled to hear the case — was nominated to the Supreme Court and took his name off of a host of appeals court cases.

All three of the judges on the ACLU case are Democratic appointees: Srinivasan by Obama, Edwards by President Carter and Tatel by President Clinton. 

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