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

Legal Issues

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.

Filed Under: cia, cia torture report, doj, evidence, preservation, torture report