In a critical measure for open and accountable government, the President has taken an important step to preserve the Senate’s investigation into the CIA’s Detention and Interrogation Program (a.k.a. “The Torture Report”), by declaring that the White House’s copy of the report will be preserved under the Presidential Records Act (PRA). In a letter on December 9, 2016, White House counsel W. Neil Eggleston informed Senator Dianne Feinstein (D-CA) of the decision.
While the measure ensures the historical preservation of the full 6,700-page report, it still blocks public access to the report for at least 12 years (the time allowed under the PRA) and does nothing to directly safeguard the other copies of the report from potential destruction – or from being returned to the Senate Intelligence Committee, if requested. Eggleston’s letter clarifies that the decision has no “bearing on copies of the Study currently stored at various agencies,” and adds that the White House is “not pursuing declassification of the full study,” at this time.
OTG and a broad coalition of open government, civil liberties, human rights, and media organizations urged the Archivist in April of this year to ensure the preservation of the report, and OTG sent a follow-up letter in May drawing attention to a recent Court of Appeals decision, which made clear that "whether the full report is publicly released under FOIA is a separate question from whether it was received and is appropriate for preservation by the Executive Branch.”
Last month, OTG and 30 other organizations called on the President to, among other urgent steps, direct senior staff in the intelligence community to read the report, and encourage the National Archives to make a determination on whether the report is a federal record. To date, NARA claims it cannot issue a determination on the status of the Torture Report, citing the Justice Department’s ongoing litigation and refusal to review the document for declassification pursuant to the FOIA. Following a resolution of the ACLU case, however, NARA will no longer be constrained by the pending litigation and the Archivist could exercise his authority to declare the copies of the report in agencies federal records –and could draw on the President’s determination that his copy was “received” as a presidential record.
Senator Feinstein, Chair of the Senate intelligence committee when the report was produced, sent copies of the full classified Senate study of the CIA’s detention and interrogation program to President Obama, the Attorney General, the secretaries of State and Defense, the directors of the FBI and the CIA, the CIA Inspector General, and the Director of National Intelligence. The status of the Torture Report has been the subject of ongoing controversy: the current Chairman of the Senate Intelligence Committee, Sen. Richard Burr (R - N.C.), requested that all copies of the report be returned; and the Justice Department has refused in court to acknowledge the report as a federal record subject to FOIA.
“The White House has taken a necessary and critical step in ensuring the preservation of the most comprehensive study that exists on the past use of torture by U.S. intelligence agencies – a document that is vital for government accountability” according to Patrice McDermott, Executive Director of OpenTheGovernment.org. “Now, the President must take further action to ensure that all remaining agency copies of the report are immediately preserved as federal records and subject to expeditious declassification review in accordance with law.”