February 29, 2016

Is the torture report a public record? An interview with the National Security Archive’s Lauren Harper

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The Senate Intelligence Committe Report on Torture whiteTwo weeks ago, the National Security Archive’s Lauren Harper wrote a fascinating op-ed in Al Jazeera America (RIP!) called “The CIA torture report belongs to the public.”

Since our publication of the executive summary of the report in December 2014, we’ve been following the slow progress of the full, 6,000-page report, and Harper’s piece offers a new window into the Department of Justice’s ongoing efforts to keep the report out of the public (or even non-public) eye.

Harper writes that David Ferriero, the archivist of the United States, is “refusing to use his clear statutory authority to label the report a federal record, which would be subject to Freedom of Information Act (FOIA) disclosure requirements.” She goes on to describe the National Archives and Records Administration’s role in the debate over the report and offers a revealing look at the numerous ways various government agencies are trying to suppress it.

We asked Harper a few questions about her op-ed—and the state of the report—over e-mail.

Before we get into the torture report, a general question: is there an established protocol for how reports of this kind are supposed to be circulated and distributed? Did something like the 9/11 Commission Report get passed along to the National Archives and Records Administration? Or is this really the first instance of its kind?

The short answer is no—there is no hard and fast protocol. There are similar reports that did make their way to the public, but the variables that affect how any given report is circulated change by the administration, by Congress, by the agency or agencies involved.

The best comparison we have to the current situation is actually the Church Committee, and even here there are some significant differences. The Church Committee was set up in 1975, after Watergate, and was Congress’s first serious inquiry into CIA and FBI abuses. It faced a lot of the same political and bureaucratic obstacles as we’re seeing now. One of the things that Walter Mondale—who was on the Church Committee—recently said is that Gerald Ford’s attorney general, Edward Levi, wanted to help the committee, and provided help that was “indispensable.”

This is not a situation we seem to have now, though the Ford administration also required that the CIA submit all proposed responses to Capitol Hill for prior presidential approval with the explicit intent to keep investigators away from the most sensitive records.

This is all to say that who is in the White House and who is at the DOJ matters a great deal where the outcome of these reports is concerned.

I’d also add that it is unique—and it doesn’t help matters—that the current chair for the Senate Intelligence Committee, Richard Burr (R-NC), wants the report to be declared a congressional record and not subject to FOIA.

Can you tell us, briefly, about the kind of work your organization, the National Security Archive, does? And when did the NSA (do you use that abbreviation?) get involved with the torture report?

The Archive—which doesn’t go by NSA to avoid confusion with the other NSA—has been around since 1985 and was established by a group of journalists and scholars to check rising government secrecy. We submit thousands of targeted Freedom of Information Act requests a year on issues that the government wants to hide, and we’ve pried loose more than ten million pages of government secrets.

FOIA is by far our strongest tool, and the one that connects all of our projects—from, among other things, our Nuclear Vault, to our Cyber Vault, to our Genocide Documentation Project, to all of our work on the Cuban Missile Crisis and our Iraq project. And our Torture Archive.

The Archive has consistently sought the declassification of records on the torture program as part of our Torture Archive. One of the major pieces of documentation that was declassified on the torture program was something called the Zelikow memo, all copies of which were thought to be destroyed until the State Department (which has gone on record as agreeing with the findings of the Senate’s report) located one in response to an Archive FOIA request.

As you may know, this is a February 2006 internal memo from the State Department’s then-counselor Steve Zelikow opposing Justice Department authorization for “enhanced interrogation techniques” by the CIA. It reflected strong internal disagreement within the George W. Bush administration over the constitutionality of such techniques. Zelikow said, “I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC [the Justice Department’s Office of Legal Counsel] views unsustainable.”

More generally, as experts on government secrecy and obfuscation, Archivists have been speaking out about the torture report for years. I’ve written about it regularly for our blog, Unredacted, and our director Tom Blanton has appeared on the Colbert Report and the Kojo Nnamdi Show to go on record explaining where this report fits in a historical context as far as government secrecy and CIA misdeeds go, and why this report needs to be released.

How is the Department of Justice pressuring the NARA to keep the report under wraps? Is it just a matter of sending threatening letters? Does the DOJ actually have any legal pretext for this kind of intimidation?

Unfortunately, trying to determine the origins of the DOJ’s terrible stances on national security—and the methods they’re using to communicate those stances—sometimes feels like looking into a black box. They certainly can’t tell NARA not to declare something a federal record—that much we know. But in this instance, one guess is that the pressure is coming from somewhere with the DOJ’s Civil division.

Unlike during the Church Committee, the Attorney General is not gunning for this report’s release. In 2009, AG Eric Holder ordered a review of the CIA’s treatment of suspected terrorist detainees. Two criminal investigations came and went, but there were never any prosecutions because “the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt.” You would think that the Senate report would have changed that stance, and yet it didn’t because, as the DOJ maintains, it “did not find any new information that they had not previously considered in reaching their determination.”

Another bit of legal news that makes the DOJ’s stance in this instance quite frustrating is that the chief military prosecutor at Guantanamo has argued in court filings that Senate Intelligence Committee’s executive summary of the report is accurate. This may be a ploy to keep more classified material out of court and out of defense lawyers’ hands, but it puts the military prosecution at odds with the CIA and undercuts CIA (and Republican) criticism that the report is inaccurate and partisan—and gives more weight to the argument that the report is accurate and should not be hidden from the public.

Is the DOJ’s approach to the NARA similar to the one it’s directing at other departments?

I think the issue with NARA is different, on some level. First, other agencies—like the CIA—have a strong incentive not to do anything that might make it easier to get the report released, and they certainly don’t need to be intimidated to be made to feel that way. Two, the Presidential and Federal Records Act Amendments of 2014 are relatively new, and I think there is some legal wariness at NARA that the DOJ is exploiting here.

That said, I would like to emphasize how bizarre and disgraceful it is that NARA seems scared to call a federal record a federal record and ensure that it’s preserved. It’s their job.

What is the state of the full report at the moment? There are copies at the DOJ, the Department of Defense, the CIA, the State Department, and the White House, right? But is it essentially being held hostage by the DOJ?

As far as I know, that’s correct, but I wouldn’t want to say that it’s being held hostage by the DOJ because that implies the DOJ is the only agency—or at least the principal agency—that doesn’t want the report to see the light of day. That’s just not the case. The DOJ is taking the lead now, because while the ACLU’s FOIA case is in the courts, that’s where the DOJ can best flex its muscle. But if and when the report is declared a federal record, you will likely see the CIA use every tool in its toolbox to keep as much of the report hidden as possible.

Look at what happened with the Panetta Review, the 2009 internal CIA review that found that the value of torturing detainees had been inflated. The Panetta Review was the subject of a 2013 FOIA lawsuit, but as the New York Times reported last January, each document used for the Panetta Review “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well.”

This is emblematic of agencies realizing how easy it is to hide FOIA-able documents under the expansive and oft-abused FOIA exemption b(5). The Panetta Review documents were withheld even though, according to Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987), “particular factual” material cannot be withheld by an agency by merely stating that the material is in a draft document. You would absolutely see the CIA citing b(5) and other exemptions to hide information were the torture report’s status as a federal record not currently in question.

So yes, the DOJ is leading the charge in the courts right now to keep the document secret, but the CIA would gladly take the reins if and when the document is called what it is—a federal record.

The Intercept’s Murtaza Hussain suggested last year that the White House is essentially treating the DOJ’s tactics as an excuse not to engage with the report. Does this seem plausible to you? And if the DOJ weren’t in the way, would there be greater pressure on the White House to react—and thus reignite the issue?

My feeling is that the White House doesn’t want to touch this, but I don’t think that absent the DOJ, the White House would be more proactive in calling for the report’s release. I say this in part because of Obama’s transparency record to date—particularly where national security information is concerned—which stands in contrast to his vow to be the most transparent administration in history.

And because there was no reaction from the White House when the CIA admitted that it had spied on the Senate staff who were compiling the report. There was also no rebuke of John Brennan’s antagonistic stance towards congressional oversight, which is troubling in and of itself, I think.

I’d also point out that in April 2014, the White House, in a clear conflict of interest, announced that the CIA would lead this declassification effort for this report. In August of that year, the White House redacted “signification portions” of the executive summary, allegedly withholding fifteen percent of the document, including pseudonyms for both CIA officers and the countries that cooperated with the agency’s extraordinary rendition program. The redactions also allegedly included evidence that “pieces of information long attributed to detainees—and that led to the disruption of terrorism plots or the capture of additional suspects—had actually come from other intelligence sources such as intercepted communications.”

It’s also worth mentioning that the Obama administration has yet to nominate a replacement for the CIA’s inspector general—a position that’s been empty since David Buckley resigned well over a year ago, and a vacancy that’s delaying sensitive internal investigations, like the one into the drone strike that killed Warren Weinstein, an American hostage being held by Al Qaeda in Pakistan.

Buckley, of course, released a CIA IG report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the torture report in February 2015, only to have the agency decide not to punish any of those involved; in fact, a CIA panel handpicked by Brennan went so far as to clear the officials of any wrongdoing, concluding that the officials had acted reasonably in the face of a potential security breach.

Buckley’s IG report, as it happens, also implies that the White House was aware of the CIA snooping on Senate staff.

What’s the latest on the FOIA lawsuit? What happens next?

The ACLU sued the CIA for access to the report in 2014, last May a federal judge ruled that the document still belongs to Congress, and the decision is currently under appeal. Hopefully what comes next is a reversal of the lower court decision and a ruling that the record is subject to FOIA. Of course, then the CIA would argue that the document is too secret to be released, and then more fights over that.

Do advocates for transparency (like the National Security Archive) have any legal means at your disposal for prodding David Ferriero into action? Or is public pressure the only (and most effective) tool in this case?

When it comes to getting NARA to declare the report a federal record, public pressure is the best recourse. I do not believe there are legal means that would prod him to designate the record as such; the legal means would be what the ACLU is currently doing and having it hashed out in a FOIA lawsuit.

You indicated in your op-ed that given the Presidential and Federal Records Act Amendments, Ferriero can simply declare the torture report a federal record. Is there any hope that he might act unilaterally to do this, or is there too much pressure in his way? And if he were to declare it a federal record, what would happen then?

I would like to remain optimistic that the he will, and that the folks at NARA—who are generally very good on declassification—will come out on the right side of this, although I haven’t heard anything to bolster my optimism.

I would suspect that there is a considerable amount of pressure, and I think NARA is playing it safe, perhaps at the behest of NARA’s lawyers who are more inclined towards caution than disclosure. If he does declare it a federal record, then the CIA will likely continue to try its best to withhold the whole thing anyway, but at least in this case we can use FOIA as a tool to fight against the agency’s attempts to hide its actions.

Is your ultimate goal the declassification of the full report, or would you be satisfied with the DOJ dropping its objections to the report’s circulation within the government?

I think there are two goals here, maybe three. The most important thing is to preserve this record for history and not let it be destroyed or hidden under the proverbial rug, even if it can’t be declassified anytime soon. If it’s not declared a federal record and subject to FOIA, people might never get a chance to read it—ever.

So the first, shorter-term goal would be for the FOIA case to definitively state that the report is a federal record and also allow it to be circulated within the government. This should happen, and the reality is that if it does, a good amount of the report will remain classified for years—maybe even decades to come.

A second, longer-term goal then would be the full declassification of the report, but as FOIA requesters know, this can be a very lengthy process and can involve years of court battles.

I suppose a third goal would be taking a look at the footnotes of the 6,700 pages of the report—which cited 6 million pages of evidence, and FOIA-ing those, as well.

These are tangible goals, and I think they are necessary ones to achieve the broader goals of ending CIA impunity in instances like this, making agencies and individuals accountable, and preserving the historical record.

 

 

 

Mark Krotov is senior editor at Melville House.

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