SSCI Chairman to CIA: We’ll Hide Your Documents if You Hide Ours

Shortly after he became chairman of the Senate Select Committee on Intelligence in January, Senator Richard Burr told reporters in his home state that he had no intention of trying to rewrite the committee’s 6700-page, $40 million torture report. Burr said that despite his disagreements with the report, he wanted to “look forward and do oversight in real time.”

It turns out that Burr’s statement was half true: he doesn’t want to rewrite the torture report. But he does want to help the CIA slip it into a memory hole—along with the Panetta Review, an internal CIA study that confirms the Senate report’s conclusions.

Taking Back the Torture Report

On January 14, Burr wrote to President Obama objecting to former Chairman Dianne Feinstein’s December 10 transmission of the full torture report to the Executive Branch:

As the Chairman of the Committee, I consider that report to be a highly classified and committee sensitive document . It should not be entered into any Executive Branch system of records. For that reason, I request that all copies of the full final report in the possession of the Executive Branch be returned immediately to the committee.

Burr’s entire letter is one paragraph long. It cites no authority for the bizarre claim that it was improper for Senator Feinstein to mail an official Senate oversight report to the President and the relevant agencies.

Burr refers to the report as “committee sensitive”—but the final report was officially filed with the President of the Senate and made available to all Senators on December 9. As Feinstein wrote to the White House after Burr’s letter,

The full, 6,963-page classified report transmitted on December 10, 2014, is an official Senate report (S. Rep. 113-288). The report has the same legal status of any other official Senate report from this Committee or any other Senate committee.

An official, final committee report is not a “committee sensitive” document. Even if it were “committee sensitive,” there would be nothing improper about transmitting it to the White House and CIA. While SSCI’s rules on “committee sensitive materials” unjustifiably lock the public out of the oversight process, they are not meant to lock out the executive agencies being overseen. Rule 9.7 states that members and staff “do not need prior approval to disclose classified or committee sensitive information to person in the Executive branch” if members and staff are “engaged in the routine performance of Committee legislative or oversight duties,” and if the recipients have the required security clearance and need-to-know. Feinstein’s December 10 letter clearly meets those requirements.

Burr’s letter to the President states that he and then-Vice Chair Saxby Chambliss were not copied on Feinstein’s letter transmitting the report, and that it only “recently came to my attention.” But there was nothing secret about the transmittal letter, which was made available to all intelligence committee members on the day it was sent, and has been posted publicly since mid-December. There was also nothing secret about the committee’s intention to disseminate the full, final report to the Executive Branch—which Feinstein stated in a public letter to the White House in April, and reiterated in a letter printed on the very first page of the official Senate version of the torture report.

So what’s actually going on here? Senator Burr, while he clearly had notice of Feinstein’s transmission of the full report to the administration in December, may not have been aware of its legal implications until more recently. Perhaps a staffer noticed it; more likely, someone in the administration alerted him.

Unlike the executive summary published on December, the full Senate torture report is classified. But the ACLU has a pending lawsuit seeking its disclosure under the Freedom of Information Act, and Guantanamo military commissions lawyers have been attempting to access the document for months. In response, Department of Justice lawyers and military commissions prosecutors have repeatedly claimed that the report was a Congressional record, exempt from FOIA or discovery requests. (The administration also inaccurately represented for months that the CIA had never received a copy of the report, but was forced to retract that claim in October. A DOJ attorney attributed the misstatements to “a miscommunication over at the agency as to what we were looking for…They didn’t realize that they had it”)

Senator Feinstein’s December 10, 2014 letter to President Obama made this argument much harder. Feinstein encouraged President Obama to use the full study “as you see fit” to ensure the United States never again engages in torture. She encouraged the study’s distribution “within the CIA and other components of the Executive Branch as broadly as appropriate,” and cc’ed the Director of National Intelligence, the Attorney General, the Secretary of State, the Secretary of Defense, the directors of the FBI and CIA, and the CIA Inspector General.

Feinstein’s letter did not change the report’s classification level. But if the Obama administration loses the argument that the report is a Congressional record, a judge could order its disclosure to Guantanamo detainees’ lawyers, who hold high-level security clearances. In FOIA cases, the CIA would have to provide some justification for continuing to classify the details of each individual detainee’s torture.

Based on documents filed in the ACLU’s FOIA case late Wednesday night, the Obama administration decided it would not drop the “Congressional record” argument without a fight. Instead of heeding Feinstein’s request to distribute the torture report “as broadly as appropriate,” the administration has done its best to pretend it did not exist. The FBI has not picked up its copy. The State Department and Justice Department have kept theirs in sealed envelopes, which no one has ever opened or read. The Defense Department has provided access to two officials, who do not include anyone in the Office of Military Commissions. The CIA will not say exactly how it has handled the full report, but claims that access to the final version has been “even more tightly controlled” than access to the December 2012 version. This handling is entirely inconsistent with Feinstein’s December 2014 transmittal letter, but quite consistent with Burr’s January 14 request that the document “not be entered into any Executive Branch system of records.”

But Burr’s letter is too late. There is no plausible argument that the committee’s transmittal of the report was invalid, and Burr has no authority to take it back. The Department of Justice’s own Freedom of Information Act guide states regarding Congressional records that:

Congress’s intent to exert control over particular records must be evident from the circumstances surrounding their creation or transmittal, rather than accomplished on a “post hoc” basis.

(p. 14-15).

Giving Back the Panetta Review

In addition to trying to take back the full torture report, Senator Burr has announced that he intends to give the Panetta Review back to the CIA.

The Panetta Review is the CIA document, or series of documents, that prompted the CIA’s unlawful search of Senate computer’s last January. At the request of CIA director Leon Panetta in 2009, the CIA did its own analyses of the documents that the agency turned over to Senate investigators, known popularly as “the Panetta Review.” The ACLU and investigative reporter Jason Leopold have sued under FOIA for copies of the Panetta Review. The government opposes both suits, on grounds that the documents are drafts subject to the “deliberative process” privilege.

According to Senator Dianne Feinstein, former Senator Mark Udall, and a recent New York Times report, the Panetta Review acknowledges that the CIA deceived policymakers about the torture program. The agency’s official response to the Senate report denies this. Udall called Panetta Review “a smoking gun…as significant and relevant as it gets,” because the documents show that the CIA is “continuing to willfully provide inaccurate information and misrepresent the efficacy of torture.”

Senator Burr’s view of the Panetta review is quite different. “The Panetta Review was never intended for the committee to have,” he told the Huffington Post last week, and “we will probably send it back where it came from.” Burr plans do this without knowing what the document says. He and five other Republican Senators wrote, on page 10 of their official response to the torture report, that

given the CIA’s repeated assertions of privilege concerning [the Panetta Review] since the January meeting with Director Brennan, at no time has a minority member or staff handled the document or reviewed its contents.

(emphasis added.)

In short, the new chairman of the CIA’s Senate oversight committee seems to believe that the CIA shouldn’t read damaging Senate reports, the Senate shouldn’t read damaging CIA reports, and the public shouldn’t read anything. Fortunately, many other Senators disagree.

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