Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:
By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.
Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:
Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.
You can see that filing here [pdf], with this being the relevant portion:
Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2
This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.





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  • icon
    Ninja (profile), 23 Jan 2015 @ 8:24am

    You can always count on Wikileaks or the likes to share the trove without getting identified so maybe you don't need to have a face behind the documents. Given how hard the Govt harasses and pushes for the destruction of whistleblowers I would simply dump the thing unfiltered into the wild damages be damned. Sure it could put some specific people in danger but heck look what they've done to Snowden, Manning and many others. They can go fix their shit by themselves. Besides, these things must be made public or they won't be stopped.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2015 @ 9:57am

      Re:

      I agree: dump the entire thing, unredacted, and let the chips fall where they may. However:

      Sure it could put some specific people in danger [...]

      Even if this is true, who cares? People are in danger EVERY DAMN DAY because of lies. 5,000+ Americans are dead in Iraq and Afghanistan because of lies. (Add to that a huge number of Iraqis and Afghans, an awful lot of whom had no reason to die.) If someone is placed in danger because of the truth, so be it. We can't run a functional society if we allow nebulous fear to silence us.

      The person who should put this report out there is the President, because he's best-positioned to endure the ensuing firestorm from those who've committed war crimes and those who support them. It's called leadership. It's called duty. It's called responsibility.

      Do it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jan 2015 @ 10:18am

        Re: Re:

        It's called keep dreaming.

        reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 23 Jan 2015 @ 1:38pm

        Remember Valorie Plame

        During the cold war, it was considered a gross faux pas to burn a spy for political reasons, and yet since then that notion has been lost.

        There is no honor in Washington, and those who endorsed or even condoned torture as it was becoming an institutionalized program should be made examples for the future generations.

        The torture report, and all torture related documents should be released to the world.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Jan 2015 @ 1:42pm

          Re: Remember Valorie Plame

          Spot on, and that fact that it hasn't already been leaked is scary as hell because it means that not one of the people who have access to it is a person of conscience.

          Beyond the condoning of torture and the torture itself, that is the most disturbing aspect of this entire treacherous ordeal.

          reply to this | link to this | view in chronology ]

          • identicon
            GEMont, 25 Jan 2015 @ 1:20pm

            Re: Re: Remember Valorie Plame

            I suspect the folks who are planning to release the full un-redacted CIA Torture Report, are currently trying to work out ways and means of remaining alive after the report is leaked.

            The Most Transparent Administration In American History has quite plainly declared war on anyone who would dare to expose their crimes and I'm certain that the CIA would drop all of its other clandestine legal and criminal operations to put its full weight behind the identification and capture of anyone daring enough to drop the Torture Report on some brave media outlet for global exposure.

            I think too that you will find that the forces of legalized public exploitation and liquidation, otherwise known as the USG, will be attacking any media or journalist who receives the Torture Report from a whistleblower, with all guns blazing and "damn the legality" painted on their attack dogs' chests.

            Personally, I find the increasing similarities in behaviour and tactics between the USG and the MAFIA to be far more than simple coincidence.

            ---

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2015 @ 9:40am

    Senator Richard Burr is aiding and abetting in the coverup of crimes committed against humanity by the CIA. He is now an accessory to these crimes, and should be tried in an international court of law just like the Nazis were.

    reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 23 Jan 2015 @ 10:20am

      Re:

      If another country invaded us and got to surrender like we did to the Nazis, then maybe.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2015 @ 10:32am

      Re:

      Sadly, the precedent you cited is that when the US invades another country, they can try people for crimes against humanity. Where is the precedent of the US being tried for them?

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 23 Jan 2015 @ 1:41pm

        Nuremberg

        The US wouldn't try itself for crimes against Humanity. The EU would.

        And their sentencing and fate would also be left to the EU. Granted it would probably be kinder and gentler when what we do to such people.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2015 @ 9:56am

    Still waiting on criminals from the CIA to be punished here.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Jan 2015 @ 12:33pm

      Re:

      Still waiting for the government to admit that torture is even a real crime.

      Hell, I'm still waiting for someone to acknowledge that pumping hummus and pasta up a person's ass might not be a routine medical procedure.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2015 @ 10:36am

    This is exactly why Mark Udall should have read this document into the congressional record.

    CIA and their defenders were bound to push back - and they're winning.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2015 @ 10:46am

    Just think

    He's one of the gang of 8 - our first line of congressional intelligence oversight.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 23 Jan 2015 @ 12:34pm

    Wishful thinking

    Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters

    You read the Cc?

    reply to this | link to this | view in chronology ]

  • icon
    Dirkmaster (profile), 23 Jan 2015 @ 12:44pm

    Might I suggest

    A nice, thorough TOR trip around the world a few times until you land at WikiLeaks. They'll BitTorrent the whole thing, and then you won't be able to put that genie back into a bottle.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2015 @ 4:14pm

    regardless of what job he is starting, maybe it would be a good idea to remind Burr that he works for the people, via the government, then via the security forces and that those same security forces are not in charge of the country, well, not yet at least!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jan 2015 @ 2:08am

      Re:

      What makes you think that he works for "the people"? What is this "country" that you speak of - and who do you think is in charge of it?

      reply to this | link to this | view in chronology ]


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