Government lawyers on Thursday continued their fight to bury the Senate Torture Report, arguing before the D.C. District Court of Appeals that the 6,700-page text could not be released on procedural grounds.
When the 500-page executive summary of the report was released more than a year ago, it prompted international outcry and renewed calls for prosecution. The summary describes not only the CIA’s rape and torture of detainees, but also how the agency consistently misrepresented the brutality and effectiveness of the torture program.
But many of the most graphic details are in Volume III of the full report, which former Senate Intelligence Committee chair Dianne Feinstein has said contains “excruciating” details on “each of the 119 known individuals who were held in CIA custody.”
The ACLU filed for the release of the full report under the Freedom of Information Act. Thursday’s hearing centered on the question of whether the report is an “agency record,” and thus subject to FOIA. Alternatively, if the report is a “congressional record,” its disclosure cannot be requested under the statute.
On the same day the executive summary was released, the Intelligence Committee sent copies of the full report to executive branch agencies with instructions from then-chair Feinstein that they be used “as broadly as appropriate to make sure that this experience is never repeated.”
Hina Shamsi, the director of the ACLU’s National Security Project, told the panel of judges “there was no clear assertion of [congressional] control. To the contrary, that control was transferred, with broad language.”
The government argued that sending copies was the work of Feinstein alone, not the entire committee. “The views of a single senator may be less reliable,” said Thomas Pulham, an attorney with the Justice Department’s Office of Legal Counsel.
In rebuttal, Shamsi stated that in December 2014, “There was no objection by any member with respect to [the report’s] transfer by the committee.”
The Republican-controlled committee is now trying to rescind the report. Last year, after succeeding Feinstein as chair, Sen. Richard Burr, R-Ga., requested that the copies distributed to federal agencies be returned to Congress, prompting a legal standoff over who has control over the distributed copies.
In the meantime, according to a letter from Feinstein and Sen. Patrick Leahy, D-Vt., the Justice Department has “refuse[d] to allow executive branch officials to review the full and final study.” Officials at the departments of Justice and State had not even removed the copies from their packaging, according to a court filing.