DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report

from the opacity-with-multiple-judicial-blessings dept

Legal battles have been fought for most of a decade now over access to the full CIA Torture Report. A limited release at the tail end of 2014 — the 525-page, heavily redacted “Executive Summary” — is all the general public has been given access to.

What was in the summary was horrifying enough. But the CIA has managed to keep the full report away from the public, utilizing rulings that have declared it a “congressional record.” Congress is exempt from FOIA law, which means as long as this report is considered something belonging to Congress, FOIA requesters have no legal means to force its release.

Not that they haven’t tried. Judicial Watch sued Rep. Adam Schiff, hoping that an opportunistic suit targeting House Intelligence Committee subpoenas would create a wedge that would make Congress responsive to requests for documents. FOIA was out of the question, so Judicial Watch went to work with a “common law access” theory to elude Congress’ omnipresent FOIA exemption.

That case ended up going with nowhere, ultimately dismissed by the DC Circuit Appeals Court in June 2021. However, that ruling did say some interesting things about common law access, and how it could theoretically be used to force Congress to hand over certain documents.

The ruling said the Speech and Debate Clause did not automatically create a presumed right to access congressional records. However, as the concurrence pointed out, this does not mean the right to access does not exist. Common law access under this legal theory should be subject to a balancing test that weighs the public’s concerns against congressional concerns and decides whether a record might be accessible via a common law claim.

That ruling prompted journalist Shawn Musgrave to make his own request for the CIA Torture Report, utilizing the common law access theory discussing in the Appeals Court ruling. Unfortunately, this attempt has met its first road block at the district level, as Sarah Wire reports for the LA Times.

District of Columbia District Court Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common-law right of public access” because while it was part of the committee’s investigation, it did not make recommendations or propose legislation.

The government interest in keeping the information secret outweighs public interest, Howell wrote.

“The Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure,” Howell said in her opinion dismissing the case.

The ruling [PDF] (which the LA Times inexplicably failed to post with its report) wraps up with Judge Howell deciding on behalf of the public that the public has already seen plenty and has no desire to access the full report.

As plaintiff acknowledges, see Pl.’s Mem. at 20, the Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure. Plaintiff also unpersuasively argues that the already-disclosed 500 pages of the Report are insufficient to bolster the public’s interest in reviewing more.

The DC court says no more Torture Report for you lot. You’ve got all the Torture Report you need and/or deserve.

This will, of course, be appealed. The DC Appeals Court was the court that first recognized this right to common law access. And there’s always a chance its application of the balancing test will side with the public, here represented by Shawn Musgrave. But, for now, another quest for the full report has dead-ended.

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Comments on “DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report”

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6 Comments
TaboToka (profile) says:

"National Security"

More like National Embarrassment. You know they were up to shady shit they don’t want to risk being prosecuted for doing by a competent judiciary.

Here’s a ProTip: ‘bad guys’ have already been trained on how to resist some (Geneva-convention approved) interrogation techniques. There are non-Geneva convention approved techniques (aka torture) employed by the CIA that are not possible to resist.

Uriel-238 (profile) says:

Re: "Impossible to resist"

This is worthy of clarification: Torture cannot yield sound intelligence or delineate sound intel from false intel, but it can reduce a victim to saying what the program needs them to say, such as a confession, a confirmation of other false intel or justification to attack a civilian target full of children.

For this it works really well, and law enforcement in the US routinely will detain a suspect in a room for hours without food, water, sleep or quiet until they are ready to confess to the Chicago Fire, let alone to the specific incident for which the officers are seeking a patsy.

That Anonymous Coward (profile) says:

“The Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure,”

Not to mention the tactics and procedures detailed within would concern American citizens that the government is not living up the the image they project of being the good guys & might explain why so many ‘shithole’ nations hate us.

An IED goes off and people get angry and demand action, but how many of them understand the reason the IED was planted wasn’t because they hate us for our freedoms but perhaps the 5th wedding we ‘accidentally’ hit with a drone because of bad intel might have upset the locals.

Torture doesn’t work, torture makes us no better than those we claim to be better than.
Perhaps it is time we own up to where we’ve failed so that we can do better moving forward.

mechtheist (profile) says:

Re:

It always astounds me when I hear about droning of yet another wedding. It’s such a horrific act and there’s seldom any serious outrage on this side. Those responsible for continuing the droning should be forced to stand next to huge photos of the aftermath and listen to the families involved and then justify their choices to continue.

The ‘they hate our freedoms’ BS is incredibly offensive, and you’re spot on to point out how droning weddings is exactly the kind of thing that led to 9/11 in the first place so it’s not deterring but encouraging. And the military understood this way back in 2004 FFS. Please excuse the length of this but I feel compelled to put this out there because it’s not mentioned often enough and many no doubt are unaware of it. From the Office of the Secretary of Defense, dated September 2004, “Report of the Defense Science Board Task Force on Strategic Communication”:

[…
American efforts have not only failed in this respect: they may also have achieved the
opposite of what they intended.

American direct intervention in the Muslim World has paradoxically elevated the stature
of and support for radical Islamists, while diminishing support for the United States to
single-digits in some Arab societies.
• Muslims do not “hate our freedom,” but rather, they hate our policies. The
overwhelming majority voice their objections to what they see as one-sided support in
favor of Israel and against Palestinian rights, and the longstanding, even increasing
support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi
Arabia, Jordan, Pakistan, and the Gulf states.
• Thus when American public diplomacy talks about bringing democracy to Islamic
societies, this is seen as no more than self-serving hypocrisy…
• Therefore, the dramatic narrative since 9/11 has essentially borne out the entire
radical Islamist bill of particulars. American actions and the flow of events have
elevated the authority of the Jihadi insurgents and tended to ratify their legitimacy
among Muslims. Fighting groups portray themselves as the true defenders of an
Ummah (the entire Muslim community) invaded and under attack — to broad public
support.
…]

You can find the document here: https://irp.fas.org/agency/dod/dsb/commun.pdf

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