On April 24, the Supreme Court declined to hear ACLU v. CIA, ending the ACLU’s attempt to have the report from the Senate’s investigation into the CIA’s Detention and Interrogation Program (the “Torture Report”) deemed subject to FOIA and marking a significant defeat for government openness and transparency.
We at OpenTheGovernment believe the Torture Report is a vital tool for government accountability, and that it belongs to the public. Despite the Supreme Court’s decision, the Archivist of the United States can still declare the Report a federal record, making it subject to FOIA, and ensuring that the federal agencies’ copies of the Report are preserved under the Federal Records Act.
The ACLU first filed a FOIA lawsuit to obtain the Torture Report in 2015, but a federal district court dismissed the case and declared the report a Congressional record and thus not subject to FOIA, despite its having been sent from Congress to the White House and several federal agencies in 2014. A D.C. Circuit Court of Appeals upheld the ruling, and the ACLU filed a petition for a writ of certiorari in late 2016. Yesterday, the Supreme Court effectively agreed with the lower courts, denying the ACLU’s petition.
While the Senate provided the full Torture Report to the White House and other federal agencies with explicit instructions to read and disseminate the report within the agencies, these copies have either been locked away from agency officials or destroyed. OpenTheGovernment has challenged the secrecy surrounding the Torture Report for years and called for the Archivist to declare the Report a federal record, to ensure its preservation and eventual declassification. In December, the Obama Administration declared that the White House copy of the Report would be preserved under the Presidential Records Act (PRA); an important step that guaranteed the preservation of at least one copy.
Still, the PRA allows for the document to remain classified for at least 12 years, preventing the public from accessing evidence of U.S. government wrongdoing at a time when the resurgence of the CIA torture program is a real possibility. President Trump has openly declared his support for torture, and signaled a renewed embrace of the Guantanamo Bay detention facility.
In light of this climate, OTG supported a January Congressional letter calling on then-President Obama to direct federal agencies to read and promulgate the report, to empower agency officials to resist any attempt by the incoming administration to renew the torture program. As the letter notes, the Justice Department’s order to keep the report sealed remains in effect. Attorney General Jeff Sessions committed in his confirmation hearing to retain the DOJ copy of the report, and at least receive a briefing on its full contents. If he hopes to ensure that the federal government does not repeat the illegal activities detailed in the report, he should also rescind the DOJ’s order and allow federal officials to read and disseminate it within their agencies. The Defense Department, CIA, DOJ and other agencies should also consider the full report as they review and implement any relevant detention and interrogation policies.
The American public has a right to read the full account of the illegal CIA torture program, and hold its government accountable to ensure history is not repeated.