Yesterday, the Court of Appeals for the D.C. Circuit heard oral arguments in a Freedom of Information Act (FOIA) suit seeking release of the full Senate intelligence committee report on the CIA’s rendition, detention, and interrogation program.
Commonly referred to as the “torture report,” a redacted version of the study’s 525-page executive summary was made public in December 2014. In yesterday’s hearing, the American Civil Liberties Union (ACLU) argued that the full 6,963-page report should also be released.
Three judges were supposed to sit on the panel, including Chief Judge Merrick Garland, President Obama’s nominee to the Supreme Court. Following Wednesday’s announcement of Garland’s nomination, only Judges Sri Srinivasan and Harry Edwards attended the oral argument, informing the parties that Garland would be replaced by Judge David Tatel, who would listen to a recording.
The hearing focused on whether the full torture report should be considered an executive branch document, which would be subject to review under FOIA, or a congressional record, which would not.
The CIA, arguing that the report was a congressional record, cited a 2009 letter giving the Senate intelligence committee access to a CIA reading room and network server. The letter stated that the documents generated on the server and any other documents or reports remained congressional records.
The ACLU contended that the letter did not relate to the final torture report, which was never in the reading room or on the server. ACLU Counsel Hina Shamsi said Congress never asserted control over the final report, arguing that when Senator Dianne Feinstein, then-Chair of the Senate intelligence committee, distributed the report to the CIA in December 2014, she also transferred control to the CIA.
Shamsi pointed to Senator Feinstein’s transmittal letter, which stated that “the full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated.” She also noted that Feinstein’s letter said the full report should be used by the executive branch “as you see fit.”
The torture report was produced from a study of over six million pages of official government records. It found that the CIA’s program was more abusive than previously known and significantly less effective at gathering actionable intelligence than had been claimed. Following the release of the report’s executive summary, the Senate passed the McCain-Feinstein anti-torture amendment by an overwhelming bipartisan majority of 78-21. The amendment, which was signed into law last November, bans all agencies and departments from using so-called “enhanced interrogation techniques,” restricting them to lawful techniques that professional interrogators agree are far more effective.
Last month, 26 of the United States’ most respected interrogation and intelligence professionals and 42 retired admirals and generals publicly released letters they had sent to U.S. presidential candidates, urging them to publicly reject torture and emphasizing the importance of the McCain-Feinstein amendment. As the interrogators noted, torture is “illegal and immoral,” “counterproductive,” and “tends to produce unreliable information.”