Government Opposes Preservation Order in FOIA Lawsuit for CIA’s “Panetta Review”
Jason Leopold
March 18, 2014
At the center of the controversy between the Senate Intelligence Committee and the CIA is a report known as the “Panetta review” that apparently matches up with the findings and conclusions of the Senate panel’s own report on the CIA’s detention and interrogation program.
Last December, after Sen. Mark Udall revealed the existence of the “Panetta review” I immediately filed a Freedom of Information Act (FOIA) request for the document and all CIA records relating and/or referring to the so-called “Panetta review.” Given all the media attention that surrounded Udall’s revelations, I sought expedited processing from CIA.
When CIA failed to respond within 10 days as required by law my Washington, DC-based FOIA attorney, Jeffrey Light, filed a FOIA lawsuit against the agency on my behalf.
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The CIA later claimed I did not “reasonably” describe the documents at issue (the agency maintains there is no such document called the “Panetta review,” as Udall asserted). So I filed a FOIA lawsuit against the CIA.
On February 26, a Justice Department attorney assigned to my FOIA case contacted Light and told him that while the CIA maintains that I did not reasonably describe the records at issue in my FOIA request the agency would not oppose it and would be willing to search for and process records that meet the definition of the “Panetta review” if I agreed to narrow my search to just the “review” and not other CIA documents that refer to it.
The government attorney said if I agreed than the agency would process the responsive records for release by May 22 (the ACLU filed an identical lawsuit and received the same offer from the government). If I wasn’t satisfied with the CIA’s response after that we could revisit the issue during litigation. Naturally, I agreed. The possibility to obtain one of the most sought after government documents in a three-month time frame was too great to resist.
When Sen. Dianne Feinstein spoke on the Senate floor about the run-in her committee had with CIA Director John Brennan over the “Panetta review” documents, I worried that those records could be destroyed just as the 92 videotapes of torture were purged. Light suggested we file a motion for a preservation order with the federal court.
Last Friday, the government responded. It opposed the motion, stating, “Because the CIA is abiding by its legal obligations in connection with this litigation and in accordance with the CIA’s record retention schedules, and the documents at issue are being preserved, plaintiff cannot show that the documents constituting the ‘Panetta Review’ will be destroyed or that he will suffer irreparable harm without a preservation order.”
“Further, because the CIA has already committed to preserving the documents at issue, plaintiff’s motion is wholly unnecessary,” the government’s response states.
In addition, plaintiff has failed to make any showing either that the CIA will destroy the responsive records or, relatedly, that he will suffer irreparable harm in the absence of a preservation order. Plaintiff has offered nothing but speculation to support his contention that destruction of these documents will occur absent a preservation order, citing only to reports that the so-called “Panetta Review” documents had “disappeared from the committee’s computer system,” and to the CIA’s 2005 destruction of interrogation videotapes as support for his motion. But such reports are irrelevant to whether the CIA will comply with its already- existing preservation obligations in this case. With respect to the so-called “Panetta Review” documents, plaintiff has not cited any allegation that the CIA has actually destroyed these documents (to the contrary, and as discussed herein, those documents have been preserved in this case). In addition, the destruction of interrogation videotapes in 2005 is irrelevant to whether the CIA will preserve the responsive records in this litigation, where the CIA has already searched for, collected, and preserved the responsive records and has committed to a schedule for processing them. The conditions under which the interrogation videotapes were destroyed have no bearing on this case.
But as the Document Exploitation blog noted there are numerous reasons to fear that the CIA could destroy the “Panetta review” documents. Just the use of the word “review” raises a “red flag,” Document exploitation noted:
Every CIA public assertion about the Panetta Review thus far raises a distinct red flag. "It wasn't a review, Senator, it was a summary," Brennan retorted to Udall.  It was never  a "formal study" said former Director Panetta. They were "drafts" "incomplete" and never circulated to the Director, asserted Panetta's former chief of staff. All these statements purporting to undermine the importance of these documents simultaneously suggest strongly that the CIA has also treated them as non-substantive drafts or -- in legal record-keeping jargon -- "working files," which the CIA would not have a long-term legal obligation to preserve.
……….
Under both a CIA records schedule and a federal regulation, whether "working files" have to be preserved as records essentially comes down to the extent to which they (1) are circulated within the agency (see, e.g., "never circulated to the Director") and (2) contain unique substantive information (see, e.g., "it was just a summary").  The detailed standards are, to say the least, elastic and open to significant interpretation, and manipulation.
But does the CIA really manipulate such standards in order to destroy important documents? A few decades of examples . . .
In investigating CIA assassination operations, the Church Committee in the 1970s highlighted how its inquiry was hampered by CIA document destruction, noting in particular that the CIA had undertaken an "internal study of the Castro, Trujillo and Diem assassination allegations" but that "unfortunately, the working papers relating to that investigation were destroyed upon the completion of the Report" by order of the CIA Director (my emphasis).
Remember when the N.Y. Times revealed in the 1990s that the CIA had destroyed almost all of its documents on the CIA's role in the 1953 coup in Iran in the 1960s?  The CIA publicly expressed concern, but later quietly justified the destruction to NARA by asserting (p. 29) that the destroyed documents were, again, simply "working files." That is, those few documents that remained were the CIA's only "official" records on the coup.  NARA didn't accept that and found that it was unauthorized destruction. According to a former CIA historian, files on CIA operations in Guyana and Indonesia met the same fate, but again the CIA asserted that the destroyed documents were just "working files." The CIA nevertheless publicly stated that "strict procedures now insured that no valuable historical records" would be destroyed.
The government’s seven-page response to my motion for a preservation order says, “the CIA has already collected and preserved the records at issue, and has committed to processing them for release of any non-exempt information by May 22, 2014.
“Thus, requiring the defendant to preserve the records at issue here would provide plaintiff with no further relief than that which the CIA has already provided,” wrote Vesper Mei, a senior attorney at the Justice Department.
“The CIA, through counsel, has represented that it has collected and preserved the documents at issue in this lawsuit,” Mei added. “Plaintiff has offered no reason for this Court to disregard those representations, and, in fact, there is none.”
A footnote in the court document further states, “Although the CIA disagrees with plaintiff’s characterization of the nature and purpose of these records, the Agency has a clear understanding of which internal records he is seeking.”
That’s odd. The CIA and Senate are still fighting over these documents and whether the Senate Intelligence Committee is even entitled to it. In a letter Brennan sent to Feinstein in January about the “Panetta review” records he said he explained to her and Udall that the committee’s own requests for the material were rejected because it “raised significant Executive branch confidentiality interest” and he could not “turn over sensitive, deliberative, pre-decisional CIA material.”
“They include a banner making clear that they are privileged, deliberative, pre-decisional CIA documents, to include attorney-client and attorney work product,” Panetta added.
That leads me to believe that come May 22, the government will say in court, in response to my FOIA lawsuit, that the “Panetta review” documents I am seeking were processed in accordance with FOIA and the CIA determined that everything is properly classified and nothing and can be released.
One final note, it is because of the FOIA lawsuits that I and the ACLU have filed--for the "Panetta review" and the Senate Intelligence Committee's own report (I am seeking the 300-page executive summary)--that information about the $40 million study, specifically the way in which the computer system was set up by the CIA for Intelligence Committee investigators at a secure facility, has been publicly revealed. The government disclosed those details in declarations to the ACLU and me. It’s also because of the FOIA lawsuits that we learned that Feinstein instructed the CIA in 2009 to block her committee’s report from being released under FOIA if anyone had sought a copy, claiming it was a congressional record, which would not be subject to provisions of FOIA.