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Now is the Time for Archivist of the US to Call the Torture Report a Federal Record

June 2, 2017

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

The Trump Administration reportedly is returning copies of the Senate Intelligence Committee’s report on the CIA’s torture program to Congress. The pernicious move, which would effectively hide the report from FOIA and public scrutiny, comes after years of FOIA lawsuits to win access to the historically significant document and hold accountable those responsible for torture. The New York Times reports today that “The C.I.A., the office of the Director of National Intelligence and the C.I.A.’s inspector general” have already returned their copies. The Archivist of the United States, David Ferriero, should now use his statutory authority to declare the report a federal record and preserve it for history.

Senator Dianne Feinstein (D-CA), then the head of the Senate Intelligence Committee, initiated the torture report in 2009 after learning that Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program, authorized the destruction of 92 video recordings of suspected Al-Qaeda leader Zain Abidin Mohammed Husain Abu Zubaydah being waterboarded 83 times in one month at a black site prison in 2005.

The Committee sent the completed report – 6,700 pages – to eight federal agencies, including the CIA, the Defense Department, and the State Department, in December 2014. Sen. Feinstein asked “that they incorporate the report into their records.”

That same year the ACLU sued the CIA under the FOIA for access to the report.

In January 2015 Sen. Richard Burr (R-NC), the new head of the Senate Intelligence Committee and staunch critic of the report compiled under Sen. Feinstein, sent a letter to the Obama White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately. Burr’s letter argued the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.” Burr also requested that the Senate’s official referee “determine whether it was appropriate for the full, classified Intelligence Committee report to ever leave the Senate without the GOP being notified.”

In 2016, Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others to call the Senate Intelligence Committee’s report on the CIA torture program what it is – a federal record. (The Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the authority to determine whether or not something constitutes a federal record.) Weeks before, Democratic Sens. Patrick Leahy of Vermont and Feinstein sent a similar letter to the Archivist, citing NARA’s responsibility “to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes.”

Ferriero refused, saying that to declare the report a federal record would interfere with the ongoing ACLU FOIA case.

Months after Ferriero made his decision, the CIA released documents on its torture program in response to two separate FOIA lawsuits. The agency disclosed detainee transcripts describing the torture program during the course of an ACLU suit, adding “first-person testimony to the growing historical record.” The CIA also released 50 documents in an overlapping FOIA lawsuit brought by Jason Leopold – now with Buzzfeed but who was working for Vice News when he filed suit; the heavily-redacted documents reveal the graphic conditions that led to the 2002 death of detainee Gul Rahman at a CIA black site prison in Afghanistan. The releases were a step in the right direction, but not a substitute for the report itself.

The ACLU suit concluded this April when the Supreme Court declined the ACLU’s petition for a writ of certiorari, upholding a lower court’s decision that the report is a Congressional record, not a federal one.

It is now imperative that the Archivist act where others will not, and call the torture report what it is: a federal record. This will allow it to be reviewed on its merits via FOIA, even if it is found that parts of it must be currently withheld under Exemption One to protect national security. Claiming it is “not a record” so that it exists only in a land beyond FOIA would deprive the public of its right to a vitally important piece of our recent history.

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