Why We Can’t Trust the CIA to Redact the Senate Report on CIA Torture

An honest broker? Note the mysterious addition of FOUO marking.

Steve Aftergood at Secrecy News provides the latest example of why it is a bad idea to let the CIA redact the Senate Intelligence Committee’s report on CIA torture.  In a move of head-shaking censorship that Aftergood charitably describes as “a surprise,” the Office of National Intelligence (which nominally oversees the CIA) redacted an Intelligence Community Directive on Human Intelligence to withhold from the public the fact that the CIA “collects, analyzes, produces, and disseminates foreign intelligence and counterintelligence, including information obtained through clandestine means.”

This censorship is all the more “surprising” considering  two other iterations of the same document, are freely available on the internet, fully uncensored.

The ODNI produced this FOIA denial in response to a FOIA request by Robert Sesek.  Despite being clearly marked “unclassified,” it was redacted under a b(3) statutory exemption, probably 50 U.S.C. § 403(g), the CIA Act.

This pointless censorship is disappointing yet timely.  It is disappointing because just last month, ODNI General Counsel Bob Litt lauded DNI Clapper’s official declassification of some documents disclosed by Edward Snowden and promised this proactive disclosure of documents technically “properly” classified would continue when the harm to national security is outweighed by the public interest (including historic documents).  Citing the authority granted in Executive Order 13526 Section 3.1 (d),  Litt boldly stated that declassifiers must now ask “not can we classify –but should we?”

Apparently, the ODNI redactor who censored this unclassified document, despite the presence of an uncensored version on the internet, did not ask this question.

As I’ve written before, this makes a written memo or directive memorializing this policy change (either by the White House, ODNI, or NARA) all the more important.

Here we go again? From a 2008 ACLU FOIA lawsuit on CIA torture dox.

This insulting censorship is also timely.  It reinforces the fact that the CIA cannot be trusted to adequately declassify the Senate report on CIA torture practices.  Aftergood astutely points out that the ODNI declassification process is, in theory, distinct from the CIA’s.  But in the case of the above Intelligence Community Directive, the “CIA’s pattern of defiance overcame” the ODNI.  According to the White House, DNI Clapper is also “overseeing” the declassification of the Senate report on CIA torture.

Today’s terrific Associated Press article about the precise declassification process of the Senate report on CIA torture also describes this CIA “pattern of defiance.”  Senator Ron Wyden (D-OR) accurately accused the CIA of using over-classification to “protect their tailbones.”  Former Mideast CIA operative and author of Syriana, Robert Baer, accused the CIA of claiming “they had a right to classify my use of the English language.”  He “feel[s] sorry for the Senate if they think they’re going to get a complete report” after a CIA-led declassification.   The National Security Archive’s director Tom Blanton, who has overseen thousands of FOIA requests to the CIA (often successfully) explained that the CIA’s position is almost always “a knee-jerk assertion of National Security.”

The AP report also stated that anonymous government officials claim “the CIA’s experts have begun a review” of the torture report.  CIA spokesman Dean Boyd would not provide an estimated date of completion of this review (Senator Wyden accused the agency of playing “stall-ball”).  Senator Jay Rockefeller (D-WV) said that the CIA has not provided Senators with an update.

Sadly, this means that the excellent suggestions by Aftergood in his post, Countering CIA’s Conflict of Interest in Declassification, have likely been ignored.  Initially, Senator Dianne Feinstein (D-CA) recommended the White House, not the CIA, lead the declassification efforts.  (Though this would be a more effective way to get the truth to the American people, it is also ironic, considering her opposition to the Bush White House’s declassification of information.)  Aftergood suggested that the Senate Intelligence Committee “make its own judgement to the validity of any CIA redactions;” but then ask the White House to resolve disputes, rather than use its Constitutional power to declassify on its own.  He also suggested enlisting the Public Interest Declassification Board, which, among other things, is charged “to review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”  

I would have even suggested the novel, if perhaps impractical, idea of giving the document to the Interagency Security Classification Appeals Panel, which has a sterling track record of overruling agency (including CIA) overclassifciation in 68 percent of its cases.

Alas, a recent White House memo to Feinstein from outgoing counsel Kathryn Ruemmler confirmed that the CIA would be redacting its own report despite its conflict of interests and atrocious declassification track record.

Despite threats from Chairwoman Feinstein, there is one more potential option: ask Daniel Ellsberg (and Senator Mike Gravel), or Michael Isikoff’s Drone Assassination Whitepaper source, or the DOJ Nazi Hunting History revealer how to circumvent the log-jam of our broken declassification system.