DOJ Has Blocked Everyone In The Executive Branch From Reading The Senate's Torture Report

from the this-is-ridiculous dept

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 a Congressional 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’s also 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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Comments on “DOJ Has Blocked Everyone In The Executive Branch From Reading The Senate's Torture Report”

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52 Comments
Anonymous Coward says:

(secret) presidential pardon

“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)”

It would indeed seem like some kind of secret backroom deal was made, kind of like a pardon in everything but name. President Ford took much political heat for his official pardon of Richard Nixon. Obama is playing the game much smarter, by granting no pardons, but vigorously opposing any investigations and stymieing any process of justice, all the while giving lame excuses as to why this Most Transparent Administration in History® engages in such stubborn stonewalling — if not outright coverups — while waging scorched-earth warfare against leakers who expose Obama’s sleight-of-hand.

It’s a presidential pardon in everything but name. But unlike the Nixon pardon, which did not extend to Nixon’s criminal conspirators (many of whom went to jail), Obama’s *secret* pardon of the previous administration, with its long trail of blatant criminality, apparently extends from top to bottom.

That One Guy (profile) says:

Re: (secret) presidential pardon

Quite. It’s a revolting, reprehensible tactic, but it is effective at dodging the issue.

If he allowed the matter to be investigated by non-involved parties it could cause some awkward moments for some very powerful people, up to and including a former US president, and at that point he’d be forced to either defend not just generalities ‘The USG ordered torture’, but specifics ‘The USG tortured these people, and this is how’, or condemn the actions, and those that carried them out, something that would likely lead to some hefty political backlash from those affected trying to return the favor.

By instead stonewalling everything, and doing everything to keep things buried, he gets to pretend that nothing happened, and it’s not his problem to deal with. Let the next sod clean up the mess(or more likely ignore it as well), he’s not touching it.

It’s a tactic that revolting, reprehensible and vile, but as far as covering his own ass, quite effective.

Anonymous Coward says:

Re: Re: (secret) presidential pardon

just generalities ‘The USG ordered torture’, but specifics ‘The USG tortured these people, and this is how’

I still don’t understand how the phrase “we tortured some folks,” uttered by the president in a prepared speech isn’t binding in any way whatsoever. “I misspoke” doesn’t really hold up, since he wasn’t speaking off the cuff. He can’t dodge it with an “under this program,” since it’s the same admission for any program. What, could he claim it was just a colloquialism, like that ol’ regional idiom “yes, we nerve gassed a bunch of orphans”? Is “folks” secretly just a synonym for “analogies”?

That admission aside, we have the weirdness of the president himself (who just might happen to be part of the executive branch) not having read a single word of a $40m report that may or may not provide evidence of war crimes. That’s a claim of slack that would make Bob Dobbs jealous.

That One Guy (profile) says:

Re: Re: Re: (secret) presidential pardon

It doesn’t matter if it was binding or not, given there’s no-one willing to charge not one but two US presidents with engaging in and covering up torture conducted, and ‘unofficially’ condoned by, the USG.

There’s no enough money in the US Treasury to pay any of the government agencies to investigate something that big, and that bad, and even if they tried you can be sure that every other agency would close up ranks and stonewall until the sun went super-nova.

Anonymous Coward says:

Re: Re: Re:2 (secret) presidential pardon

I’m gonna go off on a bit of a tangent here, and blame Ed Snowden for this (stay with me). Ten years ago, had W. said it, at least some token punitive actions would have been taken due to international pressures. Scapegoats would have been found, butchered, roasted, and eaten. Despite the Five Eyes style fuckery already being in place, there was at least the need to keep up appearances.

Now? The NZ and Australian governments are xenophobic paranoiacs, Canada’s burns books and censors scientists, and the UK’s is literally implementing thought-crime laws. Germany ‘hates’ the NSA but hosts their biggest electronic ear, France is defending European freedom by jailing people who say rude things, and Spain made it illegal to criticize the police or hold protests without getting permission from the people you’re protesting against.

Snowden unintentionally gave the West’s governments permission to transition from giving a fraction of a fuck to giving Zero Fucks (TM).

Anonymous Coward says:

Re: Re: Re:4 (secret) presidential pardon

Just in case I wandered into Poe-etry with my prose, I’ll mention that I’m not really blaming Snowden for anything. I just find it funny (in the ironic, makes you want to lobotomize yourself with a spork way) that a little more justice might get meted out by our governments if we knew less about how full-on evil they are. They no longer bother to engage in any CYA tactics.

Anonymous Coward says:

Re: (secret) presidential pardon

http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html

The day before the torture report was released, Anthony D. Romero – executive director of the ACLU – published an important op-ed in the NY Times where called for Obama to pardon Bush and the other torturers. This seems like an unusual goal for the head of the ACLU to make, but I suspect he was thinking about this exact problem of a “stealth pardon”. He says as much in the op-ed:

What is the difference between this — essentially granting tacit pardons for torture — and formally pardoning those who authorized torture? In both cases, those who tortured avoid accountability.

But with the tacit pardons, the president leaves open the very real possibility that officials will resurrect the torture policies in the future.

Uriel-238 (profile) says:

Re: Re: Unnecessary godwin

Association with Hitler is redundant.

Any person in the Oval Office will be a tyrant. I don’t think it’s feasible for someone to not be.

Contrast what Obama said while campaigning and what he’s done in the White House.

Expect that degree of transformation in our next President.

Heh. N. E. CANDIDATE Not what you’d expect!

Roger Strong (profile) says:

Re: Re: Re:

“Minimize?” The only thing minimized is talk about why it standard practice for BOTH parties.

It was standard practice for the previous administration. Eighty-eight White House staffers – Bush II, Karl Rove and the rest – instead used a private email server belonging to the Republican National Committee. Much of that email went missing.

Jeb Bush, while governor, also used a private email address on his own private server. (This can help protect emails from subpoenas and other legal actions.) Perhaps the only reason you don’t hear about the other leading Republican candidates doing the same while in office is that they’ve never been in office.

Anonymous Coward says:

Re: Re: Re: Re:

“Wrong server” could be the one sitting next to the correct one in a government data center. It was not just the wrong server. It was a privately owned and operated server in a private residence ie wrong server in a wrong facility operated by the wrong organization. That isn’t an IT whoops but a deliberate act.

Previous administration was terrible so was Bill Clinton. Jeb would just be deja vu as would Hillary.

Roger Strong (profile) says:

Re: Re: Re:2 Re:

Again, the previous Republican administration was also keeping their email on privately owned and operated servers, off-site. Jeb’s was privately owned and operated, apparently on-site, but then taken off-site.

Again, the real question is why this was standard practice for BOTH parties. It’s unlikely that the current Republican front-runners wouldn’t have done the same.

Yes, it’s wrong. But it’s yet another of the endless cases of Republicans having sanctimonious hissy fits over Democrats following established Republican policy.

Anonymous Coward says:

Re: Re: Re:3 Re:

So let’s not minimize at all for anyone regardless of party. Nor elect to accept that behavior. Additionally they should all be prosecuted for any wrongdoings the same as us peasants would be.

We can’t keep putting more of the same kinds of people in office and expect different results. That’s insanity defined.

Anonymous Coward says:

Re: Re: Re:

Let’s not forget that the “9/11 Commission Report” was a whitewash put out by mostly-loyal Bush appointees, who were given a highly limited scope (ordered not to dare look behind the curtain) carefully crafted to steer clear of Bush’s and Giuliani’s gross negligence, while the commission itself was stripped of any subpoena power that would require stonewalling officials to cough up documents and force sworn depositions within the highly-limited time frame that the commission was allowed to draw up the report. In short, the 9/11 Commission Report was a sham investigation that was set up to fail from the very start, in virtually every possible way.

Feinstein’s Torture Report might be a similarly impotent soft-glove approach to investigation — which we may never know since it’s (still) secret.

Anonymous Coward says:

Re: Re: Re: Re:

Yep, my earlier comment was just a cheap joke… I can’t imagine or guess how much real effort was put into the TR over the years, but I would wager that Feinstein’s spats and “battles” with Brennan were planned and choreographed to make them both look a little good and a little bad… and to help public interest in the Report dry up quickly thanks to the distraction and tedium.

Honestly, the US Government put a damn High-Pressure Rectal Hummus Cannon into active service, and almost no one even remembers or cares.

Personanongrata says:

Power Concedes Nothing Without A Demand*

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).

The indelible stain of torture didn’t simply splash the CIA by chance. The entire sordid tale begins in the highest echelons of the Bush (war criminal) administration when attorney John Yoo (war criminal) of the DOJ’s (HAHA) Office of Legal Counsel authored (signed off by Jay Bybee (war criminal) a memorandum titled: Standards of Conduct for Interrogation (aka “torture memo”) to Alberto Gonzales (war criminal), in his capacity as Counsel to the President. This memorandum became the specious impetus for the US governments use of most recent use of torture.

There is plenty of evidence available in the public domain that could be used to hold these fraction of a human war criminals accountable. The only thing that is lacking is the will to make it happen.

http://nsarchive.gwu.edu/torturingdemocracy/documents/20020801-1.pdf

* “Power concedes nothing without demand. It never has and never will. Show me the exact amount of wrong and injustices that are visited upon a person and I will show you the exact amount of words endured by these people.” ~ Frederick Douglass

Anonymous Coward says:

Meet the new boss, the same as the old boss

They are all complicit in this. Every administration is essentially a continuation of the prior administration with some minor policy changes for us peasants. Obama needs to let this slide so that the next Pres, who might be a Republican, will let his stuff slide. Might explain why the Republican congress has given Obama everything he has asked for lately.

Anonymous Coward says:

Meet the new boss, the same as the old boss

They are all complicit in this. Every administration is essentially a continuation of the prior administration with some minor policy changes for us peasants. Obama needs to let this slide so that the next Pres, who might be a Republican, will let his stuff slide. Might explain why the Republican congress has given Obama everything he has asked for lately.

nasch (profile) says:

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.

Now she knows how it feels when a politician tells her he’ll do one thing and then does the opposite.

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