Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

from the stay-tuned dept

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.

The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).

This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).

It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.

That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch’s counterarguments have merit. That its lawsuit seeks “only the disclosure of public records,” rather than to establish criminal or civil liability, does not render the Speech or Debate Clause inapplicable. Appellant Br. 10. To the contrary, Judicial Watch “is no more entitled to compel . . . production of documents . . . than it is to sue congressmen.” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). To the extent Judicial Watch maintains that “legislative independence is not at issue in this case” because it seeks “public records that are not confidential in nature,” it misunderstands the immunity afforded by the Speech or Debate Clause. Appellant Br. 10–11. Notwithstanding the records’ confidentiality, “legislative independence is imperiled” when a “civil action . . . creates a distraction and forces [congressmen] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503; see Brown & Williamson Tobacco Corp., 62 F.3d at 415.

The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.

Today, the court has no occasion to decide whether the Speech or Debate Clause bars disclosure of public records subject to the common-law right of access in all circumstances. Nor need it consider whether and how the application of the Clause relates to the two-step inquiry to determine whether the common-law right of access applies. See Washington Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir. 1994). The parties did not raise, and our precedent does not address those issues.

However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:

I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing....

She then more or less begs for a test case on this question:

We have never considered the Speech or Debate Clause’s application to a common law right of access claim and the parties simply cite a single district court case where the two doctrines were raised, Pentagen Technologies International v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In Pentagen Technologies, the plaintiffs brought a common law right of access claim against the Committee on Appropriations of the United States House of Representatives, seeking “to review and copy a series of investigative reports” that were not released to the public. 20 F. Supp. 2d at 42. The Committee on Appropriations asserted the reports were protected from disclosure by the Speech or Debate Clause. Id. at 43. Although the district court “conclude[d] that investigative reports [were] protected from compulsory disclosure by the Speech or Debate Clause,” it reached that conclusion only after determining that the investigative reports were “not ‘public records’ as defined by WLF II” and that “[t]here thus exist[ed] no common law right of access to the reports.” Id. at 45. If the Speech or Debate Clause in fact provided absolute protection from disclosure— including protection from a common law right of access claim—the district court’s “public records” analysis would have been unnecessary.

And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.

So... that's interesting.

As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.

That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.

Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:

Judge Henderson explained that if a sought document is a “public record,” the government’s interest in keeping the document secret should be balanced against the public’s interest in disclosure. Judicial Watch at *11. A “public record,” she notes, is “a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id., quoting WLF-II, 89 F.3d at 905.

The Torture Report is a public record under this longstanding framework and today’s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.

This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.

This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.

When asked about this new public access request, McClanahan told me:

Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.

I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

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Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report


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  • icon
    That Anonymous Coward (profile), 4 Jun 2021 @ 7:28pm

    " so that we can finally close the lid on that dark period of U.S. history. "

    I'd laugh but its sort of sad that anyone believes these things have not continued unabated behind the scenes.

    None of our heroes are heroes, none of our leaders lead, none of our rights deter them in the least.

    Our rights only exist until they might make a corporation unhappy, then they no longer exist.

    Anyone got a list of treaties we haven't violated between us and Native American Tribes? Its REALLY short if any haven't been.

    We've seen grandmothers become the target for the domestic spying brigade because checks notes they chalked not nice things about a bank on the sidewalks outside the bank.

    We've seen people arrested, charged, & taken to court for being at an event, but not for any actions they themselves undertook.

    Merely disagreeing with the administration has resulted in lots of subpoenas for information so that wrong think can be punished... yet somehow Jan 6th happened & was a complete shock to the acronym agencies who track every cat picture & dick pic people send but plotting insurrection they missed.

    For all of the people screaming conservative, progressive, orignalist, etc. all would have been executed by the framers for what they have done to the republic.

    Y'all have become every single thing you've called out in other nations and other leaders for doing.

    The group that wasted billions trying to turn Benghazi into something suddenly are worried that finding out how an insurrection that penetrated the Capitol while Congress was in session & armed terrorists were coming for some of their members would just be mean.

    Somehow the FBI can find someone willing to buy a $20 apple gift card to help terrorists overseas, but can't figure out that the money going to some officials results in a vote favorable to those "donating" to them?

    There is corruption and decay that is on display everywhere in the nation, and the refusal to look at it, call it out, & actually fix it is appalling.

    This dark period will not be closed out anytime soon, its more a matter of how much longer we can pretend we never knew about the darkness that was right in front of us.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Mikey A. Velli, 4 Jun 2021 @ 7:39pm

    "speech and debate clause would not block a common law right"!

    OH, there's that term again, Maz! You've stated that "common law" is the sum of court rulings, but here the judge rightly presents "common law" as OVER the very words of the Constitution!

    SO which is it, O fount of all knowledge if it serves your purpose at any given time?

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 4 Jun 2021 @ 7:39pm

      Re: "speech and debate clause would not block a common law

      You do now "hope" that common law provides The Public with information that our Servants in Congress use! -- SO are you agreeing with my views on common law or not, Maz? Will you yet again try to undermine my arguments which I think well-founded on The Public as arbiter of all law? Or going to revert to more mere corporatism? -- OF COURSE you'll do the latter when serves your purpose again.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Mikey A. Velli, 4 Jun 2021 @ 7:40pm

      Re: "speech and debate clause would not block a common law

      Yet again, YOU are a proven masnocrit, an order of magnitude below hypocrite -- at best -- and your long-term attack on me for advocating common law to, say, TELL corporations what rules they'll use to "de-platform" persons is now shown clearly as yet more lying. -- Also, applies to the former "Gary" account and every other fanboy who attacks/ed me for advocating Common Law, when A) you clowns rely on it every day, and B) it's what gives The Constitution validity.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Mikey A. Velli, 4 Jun 2021 @ 7:40pm

      Re: "speech and debate clause would not block a common law

      Been a DULL couple weeks. It's NOT your blocking that keeps me away. Wish you'd write on topic worth me hammering in for!

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 4 Jun 2021 @ 7:42pm

      Re: "speech and debate clause would not block a common law

      AND I DID get in by "hammering", hitting "Submit" over and again, with a few IP address changes.

      SO, Maz, ever going to state whether I slip in past now fairly strong ALLEGED "spam filter", or an admin sees me filling the queue and clicks to okay?

      Either way, you're essentially CENSORING OUT OF SIGHT, though you visibly keep offering a form contract of "free speech" to all.

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

      • icon
        Stephen T. Stone (profile), 4 Jun 2021 @ 7:56pm

        If you have to submit your comments over and over again and change your IP address while doing so just to get through the spam filter…what do you think that says about you, Brainy?

        also lol at “form contract”, motherfucker please, opening a form to the public doesn’t make a contract or create a public forum

        fuck off back to Gab

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

      • identicon
        Anonymous Coward, 5 Jun 2021 @ 3:43pm

        Re: Re: "speech and debate clause would not block a common

        Congrats to mike for being a one man psychotherapist and keeping you more or less out of the Loony bin.

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

    • identicon
      Rocky, 4 Jun 2021 @ 9:10pm

      Spammer can't read long sentences

      How the fuck can you come to the conclusion that the judge said that common law is above the constitution? What was said was that some reports that may be of public interest aren't covered by the Debate and Speech clause but by common law:

      Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause.

      I can only say that you don't understand the law, you don't understand the constitution, you can't read for shit and above all you don't understand context.

      You are one stupid and dishonest motherfucker.

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

    • icon
      Mike Masnick (profile), 5 Jun 2021 @ 4:18pm

      Re: "speech and debate clause would not block a common law right

      OH, there's that term again, Maz! You've stated that "common law" is the sum of court rulings, but here the judge rightly presents "common law" as OVER the very words of the Constitution!

      You remain very confused. What common law, and what it is not, has been explained to you multiple times. Nothing in this contrasts with what we've said.

      Though it does contrast with what you believe common law is.

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

  • identicon
    Pixelation, 4 Jun 2021 @ 8:10pm

    Torture

    I was ignorant and believed we were above torture as a country.

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

    • icon
      Stephen T. Stone (profile), 4 Jun 2021 @ 8:44pm

      The United States was founded by colonizers who formed their “new nation” in part by using slave labor brought in from other lands to build over the lands stolen from indingenous peoples. Believing this country is above any cruel, dehumanizing, and violent act is to ignore its history.

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

      • identicon
        Pixelation, 4 Jun 2021 @ 8:48pm

        Re:

        My mistake was believing that we had moved beyond that.

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

        • icon
          Tanner Andrews (profile), 5 Jun 2021 @ 3:39am

          Re: Re: [moving beyond]

          believing that we had moved beyond that

          We like to think so, at any rate. That is why we have those ``ghost flights'' and secret prisons on foreign soil. The intent is to be able to say, ``we do not do that here'', and mean it.

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

        • icon
          Bloof (profile), 5 Jun 2021 @ 3:53am

          Re: Re:

          The CIA loves torture and has used it as a tool as long as the organisation has been a thing, they've happily trained people to do just that across Latin America since the cold war because god forbid the left ever take power there and make americans pay more for fruit. The only thing that changed is they started doing it themselves in a way that made it impossible to deny doing as the world began to pay more attention to what American forces were up to during the 'war on terror'. Their attempts to make it seem effective and necessary with shows like 24 didn't take.

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

        • icon
          That Anonymous Coward (profile), 5 Jun 2021 @ 4:47pm

          Re: Re:

          Humans pretend pretty well.
          As long as we don't
          -see what we refuse to look at
          -hear what we refuse to hear
          -say what we really think

          Torture isn't torture, it is enhanced interrogation programs.
          The fact these methods rarely result in anything useful doesn't matter. Very few people will admit they like the idea of people accused of plotting against us being harmed.

          They remain blind to the fact we've murdered innocent people in drone mishaps & perhaps the rest of the world doesn't hate us for our freedoms so much as our hypocrisy. Doing the things we accuse others of doing that are horrible, while we still have people in Guantanamo who are guilty of nothing more than owning a popular cheap watch brand or having been the child sex slave of some bad men.

          Humans pretend they're better than that, but the first step in recovery would be admitting fault... and that can't happen.

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

      • identicon
        teka, 7 Jun 2021 @ 4:52am

        Re:

        To be fair, that describes most countries. Or all of them. Throughout all history and foreseeable future as far as I can tell. The United States hold no special monopoly on bloody hands.

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

    • icon
      Scary Devil Monastery (profile), 7 Jun 2021 @ 1:53am

      Re: Torture

      "I was ignorant and believed we were above torture as a country."

      That's not just being ignorant but also being blind. Go google "Dick Cheney on torture" and "Abu Ghraib".

      The US has always seen fit to allow utter monsters to dictate the terms under which suspects are to be treated and also an almost religious belief that a suspect equals a guilty party and thus no method is too low to extract a confession with.

      This should have been perfectly clear given that the republican part of the nation has for the last few decades viewed basic human rights as a "bleeding-heart libtard abomination".

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

  • identicon
    Anonymous Coward, 7 Jun 2021 @ 2:39am

    I dont understand the logic employed by the district court. So a future FOIA law that apply to Congress would be unconstitutional because that would violate this speech and debate clause thing? Isnt the court conflating two things, public right of access to Congressional records and Congressional protection from legal liability? If public get records from Congress , it still cant sue Congress over what's said in the records because Congress is still protected by the speech and debate thing, right?

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


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