Journalist Files FOIA Lawsuit Against Justice Dept For Copy of Senate's CIA Torture Report
Jason Leopold
September 2, 2013
Late Monday evening, I filed a Freedom of Information Act (FOIA) lawsuit against the Department of Justice to obtain a copy of the executive summary of the Senate Intelligence Committee’s report on the CIA torture program.
The panel spent four years "reviewing" the CIA torture program, which cost taxpayers more than $40 million. The substance of the 6,000-page report and whether or not it will be declassified has been the subject of debate since the committee voted 9-6 last December to approve it. Last month, Sen. Mark Udall, D-Colorado, a member of the Senate Intelligence Commitee, placed a hold on Obama's nominee, Stephen Preston, who was tapped by the president to be general counsel at the Defense Department. Preston is currently CIA's general counsel. Udall took action, he said, because he wants Preston to answer questions about the Senate's report on the CIA's torture program.
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"At issue," according to a report in The Daily Beast, "is whether the report should be declassified and released to the public."
While Udall and other members of the Intelligence Comittee, including Democratic chairwoman Dianne Feinstein, have called for the declassification of the report’s executive summary, at the very least, administration sources told me they still have not decided whether any part of it will be declassified and made public.
FOIA does not apply to Congress. Still, I want to report on the Senate's findings. So, two weeks ago, I filed a FOIA request with DOJ to obtain the agency’s copy of the Senate report. My FOIA sought expedited processing, noting that as of late July a Google search of “CIA senate torture report” resulted in 4.6 million hits on the search engine, underscoring widespread media interest in the document.
By law, an agency has 10 calendar days to respond to requests for expedited processing. To date, DOJ has not responded to my request. Agencies are required by law to respond to overall FOIA requests in 20 business days and produce responsive records (an impossible task), at which time a requester has a right to sue if responsive records are not turned over.
My lawsuit, filed in U.S. District Court for the District of Columbia by Washington, D.C.-based FOIA attorney, Jeffrey Light, pertains to DOJ’s failure to respond to my expedited processing request. Since it appears unlikely that DOJ will turn over the 300-page executive summary in the next 10 days, Light lawsuit will amend the lawsuit and argue for the release of the document.
The Library of Congress noted that the Senate provided copies of the report to CIA, the White House, Department of State, Department of Justice and the Office of Director of National Intelligence.
The report is described as follows, according to the Library of Congress:
I. History and Operation of the CIA’s Detention and Interrogation Program. This volume is divided chronologically into sections addressing the establishment, development, and evolution of the CIA detention and interrogation program.
II. Intelligence Acquired and CIA Representations on the Effectiveness of the CIA's Enhanced Interrogation Techniques. This volume addresses the intelligence attributed to CIA detainees and the use of the CIA’s enhanced interrogation techniques, specifically focusing on CIA representations on how the CIA detention and interrogation program was operated and managed, as well as the effectiveness of the interrogation program. It includes sections on CIA representations to the Congress, the Department of Justice, and the media.
III. Detention and Interrogation of Detainees. This volume addresses the detention and interrogation of all known CIA detainees, from the program's inception to its official end, on January 22, 2009, to include information on their capture, detention, interrogation, and conditions of confinement. It also includes extensive information on the CIA’s management, oversight, and day-to-day operation of the CIA’s detention and interrogation program.
One Intelligence Committee staff member characterized the Senate’s report for me last December as "the Pentagon Papers of the CIA torture program." That may explain why it has been mired in so much controvery. According to a July 19 New York Times report, “The report has been the subject of a fierce partisan fight and a vigorous effort by the C.I.A. to challenge its conclusions, and … the agency’s director, John O. Brennan, delivered a lengthy rebuttal to the report to committee leaders.”
I decided to only file a FOIA for the executive summary because that is the part of the report Feinstein said she would push the White House and CIA to declassify and it is likely it is a part of the report that what will take the least amount of time to undergo a security review. My lawsuit will now force the administration to take a position on the matter. Given that some administration officials have been vocal in their support of releasing the report it will be interesting to see how the government responds to my FOIA lawsuit.
In the July 19 New York Times report, White House spokeswoman Caitlin Hayden said, “Some version of the findings of the report should be made public.”
Vice President Joe Biden also weighed in on the release of the report recently, noting that the only way for the public to move forward is to "excise the demons."
In a statement issued after the Senate panel approved the report, Sen. John McCain, R-Arizona, said he hopes the government “will take whatever steps necessary to finalize and declassify this report, so that all Americans can see the record for themselves, which I believe will finally close this painful chapter for our country.”
Several human rights and civil liberties organizations have also recently called for the declassification of this report.
The American Civil Liberties Union launched a campaign asking the public to sign an online form urging the Senate to declassify their report "so that all Americans can reach judgment on the torture program based on facts and not fiction."
It is essential that we have all the facts if we are to ensure that our nation never takes the wrong path again. Ask the Senate Intelligence committee to release its report on CIA torture.
The Center for Justice & Accountability also launched a campaign urging the public to send letters to Senators calling for the release of their report:
A public release of the CIA torture report is a critical step toward accountability, and a much-needed check against similar abuses occurring now or in the future. Urge your Senators to support the release of the Senate report on CIA torture now.
Human Rights Watch executive director Kenneth Roth said after the report was approved by the Senate Intelligence Committee that it was a document of "monumental importance given the many uninformed claims that torture was central to US intelligence successes."
"Only by making the facts public and understanding past mistakes can policymakers ensure that such illegal and destructive national security policies never happen again," Roth said.
Additionally, as I noted in my FOIA, the urgency of my request is further underscored by the fact that military commissions are currently taking place at Guantanamo involving five 9/11 suspects, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Abd al Rahim al Nashiri, the alleged mastermind of the USS Cole bombing. Nashiri, Mohammed and the other accused terrorists were held in secret prisons operated by the CIA and were subjected to torture techniques described in the Senate’s report. However, any mention of their treatment while in custody of the CIA, however, has been ruled to be off-limits by a military judge presiding over the tribunals, thereby depriving the public from knowing whether their admissions to alleged crimes were tainted by torture. The release of the executive summary of the Senate Intelligence Committee's report may help answer those questions.