Earlier this month, the Dissent NewsWire reported on concerns that the Senate Intelligence Committee Report on Torture could disappear. Several developments since this story was published, including revelations about the Central Intelligence Agency’s destruction of its copy of the report, have further heightened these fears.
While the Senate Intelligence Committee made public a redacted version of the report’s Executive Summary, the full report has never been released to the public. The American Civil Liberties Union (ACLU) is seeking to obtain the Senate Torture Report from the CIA through a Freedom of Information Act (FOIA) request. As a Congressional record is exempt from FOIA, however, the Senate Intelligence Committee transmitted the report to a number of executive agencies, including the CIA. In the transmittal letter, then-committee chair Sen. Dianne Feinstein instructed the agencies that they should use the report as a preventative tool and enter it into the executive systems of records. This would clearly position the report in the hands of the agencies subject to FOIA.
Yet, not everyone wants the report to potentially be released to the public. After the Republicans became the majority party in the Senate, torture apologist Sen. Richard Burr became chair of the Senate Intelligence Committee. Burr requested the agencies return the report and instructed them not to enter it into the executive system of records. Such a request can only be interpreted as a deliberate attempt to keep the report exempt from FOIA.
Burr was not alone in trying to keep the Senate torture report from the public. The Obama Administration and the CIA have both argued in response to the ACLU’s lawsuit that the report is a Congressional record, not a federal record subject to FOIA. The Department of Justice has even asked the National Archives and Records Administration (NARA) to refrain from commenting on whether they considered the torture report a federal record due to the ACLU’s ongoing lawsuit. This is significant, because NARA has the responsibility to preserve the torture report if it is a federal record. NARA also has the authority to determine whether a record is a federal record or not and other agencies, such as the DOJ or CIA, must follow NARA’s determination—not the other way around.
Now things have just gotten worse. The U.S. Court of Appeals for the District of Columbia has ruled against that the ACLU and that the Senate Torture report is immune from FOIA. Given that this is the case that NARA was waiting for, it is unclear what, if any, action they will take to preserve the report. If the report is not preserved by NARA there is a serious possibility that the report could be destroyed and lost to history forever.
On May 16 — just three days after the adverse ruling for the ACLU — it was revealed that the CIA’s Inspector General accidentally destroyed the agency’s sole copy of the report.
Torture is a war crime under international law and is thus prosecutable under federal statute, including the (severely weakened) War Crimes Act. It is thus of the utmost importance that these reports, which document and review potentially illegal acts not be physically erased from history.
The Senate Torture report contains documentation of criminal activity. It is vital to any future attempt of achieving justice for victims of CIA war crimes and crimes against humanity. It also represents the only form of accountability to date for the CIA’s torture. While this is entirely unacceptable, it is even more unacceptable to allow the CIA to roll back even the most modest attempts at accountability.
What we have seen of the report, its executive summary, shocks the conscience. The CIA engaged in torture techniques like waterboarding, mock executions, and so-called “rectal feeding.” Several people almost drowned during waterboarding and one detainee was so badly tortured his eye had to be surgically removed. It’s easy to see why the CIA would not want this information available to the public. The question is, will they be allowed to “disappear” the report? Given recent events, it seems like they may.
Please join BORDC/DDF in taking action to prevent this. You can ask President Obama to use his authority to declassify the Senate Torture Report, as well as to make sure agencies like the CIA take the proper steps to preserve the report.