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No, Senator, You Can’t Have the Torture Report Back (UPDATED)

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Ashley Gorski,
Senior Staff Attorney,
ACLU National Security Project
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January 28, 2015

Update (2/10/15): It looks like Senator Burr won’t get the torture report back, after all! In response to our emergency motion, filed late last month, the government has committed to “preserving the status quo” – in other words, it will hold on to its copies of the 6,900-page report detailing the CIA’s torture program, despite Senator Burr’s attempt to bury it beyond the court’s reach. Our efforts to get the full report into the hands of the public are continuing.

The new chairman of a powerful Senate committee wants to ensure that the full Senate torture report, the executive summary of which was released in December last year, never sees the light of day. And he may be getting help from the CIA.

Sen. Richard Burr (R-N.C.), who now leads the Senate Select Committee on Intelligence, made an unprecedented request to President Barack Obama earlier this month. He asked that the executive branch agencies transfer their copies of the SSCI’s full report on the CIA’s torture program back to the Senate. Several members of the committee and other senators have roundly condemned Sen. Burr’s request for what it is: a naked attempt to keep the full torture report from the American public as well as to prevent democratic accountability for the abuses carried out in our name.

The timing and the content of Sen. Burr’s request strongly suggest some degree of coordination with executive branch agencies to avoid producing the report in an ACLU Freedom of Information Act lawsuit seeking its release. We are gravely concerned that the CIA and other agencies will return the report in response to Sen. Burr’s letter, and that it might never be released to the public. Last night, we filed an emergency motion asking the court in our case to order that the executive branch agencies retain the full torture report while our lawsuit is pending.

The full torture report is the product of a multi-year, comprehensive investigation into the CIA’s post-9/11 program of detention, torture, and other abuse of detainees. When the SSCI sent the full torture report to the CIA, the Department of Justice, the Department of State, and the Department of Defense last month, then-SSCI Chairman Dianne Feinstein (D-Calif.) asked that the report be made available “broadly” within the executive branch to help make sure that the CIA’s detention and torture program is “never repeated.” But some of the agencies haven’t even opened the package containing the report, in what seems to be a maneuver designed to evade their FOIA obligations.

The response to the Senate’s public release of the report’s executive summary shows just how important it is for the full report to be released. The summary describes horrific human rights abuses and a litany of misrepresentations by the CIA. It generated global attention and spurred renewed calls for investigation and prosecution of the architects of the torture program. But like any summary, it omits critical details. That’s why the ACLU is seeking to compel the agencies to release the full report, which spans more than 6,900 pages and provides substantially more detail about the CIA’s deceptions and brutality.

As shown in the executive summary, the CIA has a troubled relationship with the truth in the courts. In one particularly striking example, a CIA attorney expressed concern that a declaration she or he wrote in a different lawsuit was “a work of fiction.” And in this very FOIA case, the CIA told us through government counsel month-after-month that it did not possess the full torture report, until finally it turned out that the CIA did, in fact, have the report, and the government lawyer had to explain: “there was a miscommunication apparently within the agency as to what they were looking for … they didn’t realize that they had it.”

If the CIA and other agencies send the full report back to the SSCI, the agencies could argue that the court lacks the power to order the committee to produce the report in response to our lawsuit. Our emergency motion seeks to prevent this legal bind and any efforts by the agencies to circumvent FOIA.

The public is entitled to the entire story about the CIA torture program and its lies to Congress, the White House, and to us. Any attempt to bury the fullest account of the torture program in existence – and a fine example of congressional oversight – undermines the democratic accountability that is necessary to the rule of law.

We’re fighting to prevent that.

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