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.