Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Obama won't return 'torture report' without court OK

The Obama Administration is pledging that it won’t destroy or return copies of the full-length Senate Intelligence Committee report on CIA detention and interrogation practices without permission from the federal courts.

In a court filing Friday night, the Justice Department asked U.S. District Judge James Boasberg not to grant an American Civil Liberties Union motion seeking to block the government from returning the unabridged versions of the so-called torture report to the Senate as new Senate Intelligence Committee Chairman Richard Burr (R-N.C.) has requested.

However, Justice Department lawyers agreed not to send the report back to the Hill while the ACLU’s Freedom of Information Act lawsuit is pending, unless they seek Boasberg’s okay to do so.

“The government can now assure the Court that it will preserve the status quo either until the issue of whether the Full Report is a congressional document or an agency record is resolved, or until it obtains leave of court to alter the status quo,” DOJ attorney Vesper Mei wrote in the new filing (posted here).

After an executive summary of the report was released publicly in December following protracted negotiations with the Obama Administration over classification issues, Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) sent various government agencies copies of the still-classified updated version of the full report “for use as broadly as appropriate” to ensure that the harsh tactics such as waterboarding described in the report are never used again by the U.S.

Burr wrote to President Barack Obama last month asking for the return of the full, nearly 7000 page report in an apparent bid to keep it from being declassified or released. The new committee chairman also maintained that Feinstein exceeded her authority in sending the full report to the administration without a vote of the committee, but Feinstein suggested the Senate parliamentarian ruled that she did nothing wrong.

The new legal filing from the Obama Administration seems to hew closer to Burr’s view of the situation than to Feinstein’s, suggesting that her intentions and actions regarding the report even while chairman were not sufficient to convert the full report into an executive branch document susceptible to FOIA.

“The Committee as a whole made a determination not to publicly release the Full Report,” Mei wrote. “The ACLU points to no communication from the full committee that contradicts that clearly articulated intent…. Although the ACLU invites the Court to take sides in this legislative dispute, the Court should resist undoing through litigation what the full SSCI decided through the political process.”

An ACLU lawyer said the group had achieved its immediate goal of parrying Burr's effort to have the report returned.

"We now have the on-the-record commitment we sought from the CIA and other agencies, which they refused to provide before we filed our emergency motion," ACLU attorney Hina Shamsi said Saturday. "Although the CIA is still fighting to prevent the American public from seeing the full torture report, this dispute is for the court to decide. Senator Burr’s extraordinary attempt to interfere with the court’s jurisdiction over the torture report fails."

A spokeswoman for Burr had no comment Saturday, but earlier in the week the North Carolina Republican told POLITICO he believes the Obama Administration is essentially backing him up.

"The Justice Department is arguing for my position which is: their argument is going to be that they are 'committee sensitive' documents," he said Wednesday. "We'll let the judge decide."

Burr also said the parliamentarian didn't side with Feinstein in the dispute about sending the final version of the full report to the executive agencies last December.

"The parliamentarian chose to take no position and that is strictly from the standpoint of the inability to make out the transcripts of conversations inside the committee. It was no decision whatsoever," Burr said.

The outcome of the ACLU’s lawsuit is likely to turn on whether Boasberg concludes that the copies of the full report now have the characteristics of executive branch records. Administration officials have said some agencies have not opened their copies of the report, apparently in a bid to avoid having them deemed executive branch documents.

For a time last year, the CIA maintained that it didn’t even have a copy of an earlier version of the unabridged report. Mei later said it was there the whole time but on a CD stored under something else.

Regardless of any ruling by the courts, Obama could order the declassification and release of the full report. Indeed, the new filing seems to acknowledge that the president is caught between the competing requests from Feinstein and Burr.

“The public interest lies in having the political branches of government resolve for themselves what has plainly become a political dispute,” Mei wrote.

Obama is unlikely to be in a hurry to act decisively in either direction. In the wake of the release of the report’s executive summary in December, CIA Director John Brennan was asked whether he’d support releasing the full text of the report in declassified form.

“I think there’s more than enough transparency that has happened over the last couple days. I think it’s over the top,” he said.

UPDATE (Saturday, 4:41 P.M.): This post has been updated with Burr's comments.

UPDATE 2 (Saturday, 9:22 P.M.): This post has beeen updated to clarify that only some agencies have said they did not open their copies of the full report.