DOJ, Obama Administration Fight Order Requiring The Full CIA Torture Report To Be Turned Over To The Court

from the don't-touch-our-stuff dept

The Obama administration has responded to calls to declassify the full CIA Torture Report with a "will this do?" promise to lock up one copy in the presidential archives. While this ensures one copy of the full report will survive the next presidency, it doesn't make it any more likely the public will ever see more than the Executive Summary released in 2014.

Other copies may still be scattered around the federal government, many of them in an unread state. The Department of Defense can't even say for sure whether its copy is intact. Meanwhile, an ongoing prosecution in which the defendant is alleging being waterboarded by the CIA has resulted in an order to turn over a copy of the full report to the court.

This order would preserve a second full copy -- with this copy being as close as we've gotten so far to seeing it become part of the public record. Of course, the DOJ is challenging this court order on behalf of the Obama administration, which certainly never intended to participate in this much transparency. Charlie Savage of the New York Times notes (on his personal blog) that a motion has been filed seeking to reverse the court's preservation/deposit order.

[T]oday the Obama Justice Department decided to fight Judge Lamberth’s order rather than comply with it. It filed a motion asking to Judge Lamberth to reconsider his order, arguing that it raised constitutional concerns (interfering with communications between Congress and the executive branch) and was unnecessary anyway given the presidential records thing. And it said that if he didn’t reconsider, the executive branch will appeal.

The judge had ordered a copy to be filed with the Court Information Security Officer (CISO). The DOJ argues [PDF] that this isn't necessary because the CIA has its copy locked up real tight-like.

Reconsideration is appropriate primarily because intervening facts have rendered these provisions unnecessary. As explained below, a copy of the SSCI Report is already being preserved in the Executive Branch under the Presidential Records Act, 44 U.S.C. §§ 2201-2209, and documents underlying the Report have been and continue to be preserved under a 2007 preservation directive issued by the Director of the CIA. Further, no copy of the SSCI Report held by the CIA has been destroyed, nor has any improper destruction of evidence by the CIA occurred since the issuance of the 2007 preservation directive.

True, one copy is being preserved in Obama's presidential archives. But the second assertion is a bit more dubious. While it's technically true the CIA hasn't destroyed any copies of the Torture Report, its oversight has. In May of last year, it was discovered that the CIA's Inspector General had destroyed the copy he'd received, thanks to a string of counterproductive "normal business" decisions.

[L]ast August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

This prompted Dianne Feinstein to send a letter to someone who should have had an extra copy or three of the Torture Report lying around: CIA Director John Brennan.

As you may be aware. the office of the CIA Inspector General has misplaced and/or accidentally destroyed its electronic copy and disk of the Senate Select Committee on lntelligence's full 6,700-page classified Study of the CIA Detention and Interrogation Program. I write to request that as Director of the CIA, you provide a new copy of the Study to the office of the CIA IG immediately.

Your prompt response will allay my concern that this was more than an "accident." The CIA IG should have a copy of the full Study because the report includes extensive information directly related to the ongoing oversight of the CIA.

The accidental deletion of the IG's copy was possibly in violation of another preservation order stemming from ongoing FOIA litigation. The CIA was under orders to preserve its copy(ies), which means its oversight office should have been doing all it could to ensure its copy didn't disappear. If the CIA somehow managed to destroy its copies of the report, its oversight should have been in position to act as its backup, not to mention come down on it for any acts of impropriety. Instead, it took a copy and immediately -- if possibly inadvertently -- threw it away.

So, while the DOJ may firmly believe in all that is good and right and trustworthy about government officials holding onto damning documents, it can't rule out the possibility of human error. So, to better ensure preservation in accordance with the order, it should be less reluctant to hand over a copy to the court CISO, which would at least shift the culpability should this copy end up missing.

The obvious conclusion is that the outgoing administration (to say nothing of the incoming replacement) is still very interested in keeping the full report from ending up in the public's hands. Delivering a copy to the court makes it a part of the judicial process which, despite its tendency to seal documents and dockets far too frequently, is a much more open process than shuffling copies around from lockbox to lockbox within federal government agencies.


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  • icon
    Ninja (profile), 17 Jan 2017 @ 6:45am

    All this secrecy only contributes to the collective imaginary that the thing must be incredibly damning, monstrous. Which honestly at this point I don't doubt. At this point, fighting to keep it a secret probably is doing more damage than releasing it and admitting the mistakes.

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

    • icon
      Roger Strong (profile), 17 Jan 2017 @ 9:15am

      Re:

      All this secrecy only contributes to the collective imaginary that the thing must be incredibly damning, monstrous.

      Especially given what's already public record outside of the heavily redacted executive summary.

      For example there's the case of Binyam Mohamed. British officials had to testify in court after it became public that they contributed questions knowing that they'd be used during torture.

      British court papers "contained details of how Mr Mohamed’s genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, “is very far down the list of things they did."

      Like other torture victims, Mohamed was later cleared and released with an "er, never mind."

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

      • icon
        Ninja (profile), 17 Jan 2017 @ 9:27am

        Re: Re:

        That.

        Let's not forget that people tend to admit to anything to make the pain stop. You can make somebody admit to anything if you apply enough torture which makes statements obtained with the use of torture extremely unreliable.

        To me these people are simply monsters that enjoy doing it. Devoid of any humanity and any empathy that I wouldn't dare insult animals calling these vile creature 'animals'.

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

        • icon
          Roger Strong (profile), 17 Jan 2017 @ 10:09am

          Re: Re: Re:

          As the saying goes, "Torture is ventriloquism."

          So they torture the person, AND they torture his fellow insurgents AND anyone related or associated. Then they compare notes to see who's story doesn't match. It's a data mining operation. The more people they torture, the more accurate a picture they hope to get.

          This is why Gitmo had to be expanded AND they had interrogation centers in eastern Europe and Morocco AND they were torturing in Iraqi prisons AND they were torturing in Afghanistan AND STILL they had to farm out work to places like Syria and Egypt. They even tortured people they had only the vaguest suspicions about. (Like Canadian Maher Arar, taken off a flight to Canada and tortured. He too has been fully cleared and released with an "er, never mind.") They were trying to get as big a dataset as possible.

          Not that it makes the situation less horrific and wrong. Just the opposite actually.

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

  • icon
    Vidiot (profile), 17 Jan 2017 @ 7:36am

    "...intervening facts have rendered these provisions unnecessary. As explained below, a copy of the SSCI Report is already being preserved in the Executive Branch..."

    A backup in two places... how "unnecessary" is that? So if a rogue operator (snicker) maliciously deletes the Executive (DOJ/CIA) copy, which (snicker) could happen some day, the Judicial Branch could "help out" by producing its own, much to their chagrin.

    I wouldn't give a copy to the Legislative Branch for safe keeping... not much is safe once it gets into those monkeys' hands.

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

    • icon
      Ninja (profile), 17 Jan 2017 @ 8:17am

      Re:

      You are offending the monkeys.

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

    • identicon
      Anonymous Coward, 17 Jan 2017 @ 9:37am

      Re:

      I wouldn't give a copy to the Legislative Branch for safe keeping... not much is safe once it gets into those monkeys' hands.

      I have no problem with the Legislative branch receiving a copy for preservation. The key point, which I think you tried to make (but phrased oddly) is that they should not be entrusted as the keepers of an existing copy that could otherwise be stored somewhere safer. Rather, they should receive a new copy of the report as an additional safeguard against all other copies being destroyed. In this case, since the public cannot currently create backup copies independently, the next best thing is for as many different authorized recipients as possible to maintain independent copies of the report, with the hope that at least one of them will manage to retain it long enough for it to become a public record.

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

      • identicon
        Anonymous Coward, 17 Jan 2017 @ 9:52am

        Re: Re:

        ...or at elast for one of them to retain it long enough for someone to actually read it.

        I'm beginning to suspect that outside the people who compiled the report, nobody has actually read it through, but instead stopped when they got to the first bit that hinted "if you read the entire thing and don't take action, you too may be guilty of an international crime."

        Plus, in the court of public opinion, "What??? I never read THAT part!" is the get out of jail free card.

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

  • identicon
    Anonymous Coward, 17 Jan 2017 @ 8:27am

    Surprise, surprise

    The most transparent administration in history doing what it does best.

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

  • identicon
    Anonymous Coward, 17 Jan 2017 @ 9:33am

    If the CIA has nothing to hide, then it has nothing to fear

    This report should be declassified and made available as a public record, in full and as soon as possible. If the CIA has nothing to hide and has acted solely above reproach (which, if you believe DOJ, all Federal government agencies always do), then it has nothing to fear from releasing this report, and should in fact be relieved to release the report as exonerating proof that the CIA is an upstanding government agency.

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

  • icon
    TechDescartes (profile), 17 Jan 2017 @ 9:52am

    You've Got a Good Thing Coming

    2007 Obama Press Release:

    "I know it's easy to be cynical about politics in this country," Obama said. "I understand that cynicism. But I've always said that when the American people are paying attention -- when they're involved and engaged and informed about what's going on in their government -- then good things happen. I've spent my life trying to open up the political process to people, and I believe we can do it again. And when we do that, we will have a government that listens to their voices and finally responds to their best hopes once more."

    "Good things happen" means lawsuits and court orders? That would only be true if Obama were a lawyer. Oh. Never mind.

    p.s. This quote came from http://www.presidency.ucsb.edu/ws/?pid=93244, because the White House archives only go back to 2009. https://www.whitehouse.gov/briefing-room/statements-and-releases?term_node_tid_depth=41&page=117 5 Hmm.

    p.s.s. When leaving office, the Clinton administration stole all of the W's from the keyboards in the White House. Here's guessing the Obama administration steals the "Delete" keys.

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

    • icon
      TechDescartes (profile), 17 Jan 2017 @ 9:55am

      Re: You've Got a Good Thing Coming

      Never mind about the White House site. It doesn't include any pre-administration statements, only those once Obama was in office. It's been a long eight years.

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

  • identicon
    David, 17 Jan 2017 @ 10:12am

    Poor Obama.

    Trying so hard to go into the history books as America's blackest president.

    This is going to end up such a short-lived achievement.

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

  • identicon
    Personanongrata, 17 Jan 2017 @ 11:02am

    War Criminals

    DOJ, Obama Administration Fight Order Requiring The Full CIA Torture Report To Be Turned Over To The Court

    If there were even one iota of integrity to be found within the Department of Justice (HAHA) the persons that aided/abetted and those that carried out the depraved acts of US government sanctioned torture would have been indicted, tried and sentenced already.

    Instead we are treated to public displays of what appear to be official indifference/incompetence all smothered in heaping layers of malfeasance, misfeasance and nonfeasance.

    Amendment VIII

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    What good is a law if the persons sworn to uphold it completely forsake it?

    The US government and the duplicitous tax feeding parasites operating therein are complete disgraces as they have completely forsworn rule of law for rule of man at the expense of all.

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

  • identicon
    Anonymous Coward, 17 Jan 2017 @ 11:12am

    Why not just release it to the world and call it a day?

    53% of Democrats and 82% of Republicans support it according to a fairly recent poll: http://thehill.com/blogs/blog-briefing-room/news/274652-poll-most-americans-support-torture

    Quote: Torture works. OK, folks? You know, I have these guys—”Torture doesn’t work!”—believe me, it works. And waterboarding is your minor form. Some people say it’s not actually torture. Let’s assume it is. But they asked me the question: What do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding.

    So why not live up to the ass-backwards, fuck-em-they're-not-even-human attitude that we've been cultivating over the last 15 years?

    Seriously America!

    We pissed away the moral high ground years ago. No sense trying to pretend that somehow burying this report is going to bring it back.

    We need to embrace what we have become - the same as those we used to criticize for doing the same thing.

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

  • identicon
    Anonymous Coward, 17 Jan 2017 @ 11:49am

    The copies of the report are NOT being adequately preserved!

    They were put on writable removable computer media - CD-RW / DVD-RW or the like, as shown by the CIA-IG's office.

    They were copied onto computers that will fail, or be securely erased (once again, as the CIA-IG's was).

    You can place money on the presidential archives copy being on the removable computer media. That's NOT serious archiving. If the media doesn't fail, the format will fail.

    Serious archiving is putting the report on acid-free paper (readable by mark-one eyeballs), and storing it under Library of Congress recommended conditions.

    10 or 20 years from today, we'll find that the disk was corrupted by time, or lost in a sea of identical unmarked disks, or thrown out because nobody knew what was on it.

    It doesn't even require malice.

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

    • icon
      Roger Strong (profile), 17 Jan 2017 @ 12:47pm

      Re: The copies of the report are NOT being adequately preserved!

      Forget acid-free paper. Go with vellum (calf skin.) The written record disappears for a couple centuries once we switched to paper; the old paper documents crumbled away while MUCH older vellum documents have held up.

      Alas, HP's vellum support remains poor. The scudding (hair removal) attachment never does a thorough job and the lime cartridges keep changing with every new printer model.

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

      • icon
        JoeCool (profile), 17 Jan 2017 @ 3:23pm

        Re: Re: The copies of the report are NOT being adequately preserved!

        Forget vellum. Go with metal plates. Those will last... until they rust. Hmm - forget metal plates. Go with stone tablets. That's the ticket! We have records many thousands of years old because they were put onto stone.

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

        • icon
          Roger Strong (profile), 17 Jan 2017 @ 3:47pm

          Re: Re: Re: The copies of the report are NOT being adequately preserved!

          OK, but use *small* stones tablets. Anything large gets reused, inscriptions hidden, in the foundations of later buildings.

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

  • icon
    Roger Strong (profile), 17 Jan 2017 @ 1:54pm

    On the positive side, Obama just commuted Chelsea Manning's prison sentence.

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

    • identicon
      Wendy Cockcroft, 18 Jan 2017 @ 5:53am

      Re:

      Yes. Did you see what he said about Snowden when justifying refusing him a pardon? He's still trotting out the lie about Snowden voluntarily being in Russia instead of being stuck there when his passport was yanked.

      His residency has been extended, one presumes it's to annoy Obama. Putin is an epic troll.

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

  • identicon
    Whoever, 17 Jan 2017 @ 3:02pm

    Torture works

    .... if your objective is to get a confession and you don't care if it is true or not.

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

  • identicon
    Châu, 17 Jan 2017 @ 6:34pm

    Obama hide torture?

    Obama probably ordered torture or supported it and he wants hide it.

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

  • identicon
    Anonymous Coward, 18 Jan 2017 @ 1:05pm

    Lock up Torture Report in Guantanamo

    "The Obama administration has responded to calls to declassify the full CIA Torture Report with a "will this do?" promise to lock up one copy in the presidential archives."

    Safer to leave the report in Guantanamo, where it will become inaccessible when Gitmo is closed.

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


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