Senate doesn’t have to release full CIA torture report, judge rules

WASHINGTON —  The U.S. Senate does not have to release its full report detailing the Central Intelligence Agency’s interrogation and detention program following the Sept. 11, 2001, attacks, a federal judge ruled Thursday.

Journalist Shawn Musgrave sought the 6,700-page document, citing a “common law right of access” to public records. The legal argument is conceptually similar to the Freedom of Information Act. Congress is not subject to the Freedom of Information Act, and the U.S. Court of Appeals for the District of Columbia Circuit ruled in 2016 that the report was a congressional record. Musgrave’s legal argument was made in an attempt to get around that limitation.

Common law right of access is decided in the District of Columbia Circuit based on a two-part test that requires a determination that the document is a public record and then balancing the government’s interest in keeping the document secret against the public’s interest in disclosure.

District of Columbia District Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common law right of public access” because although it was part of the committee’s investigation, it was aimed at gathering information and did not make recommendations or propose legislation. Therefore, she said, it falls under the protections of the 1st Amendment‘s speech and debate clause protecting legislators’ speech while crafting legislation.

The government interest in keeping the information secret outweighs public interest, Howell wrote.

“The Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure,” Howell said in her opinion dismissing the case.

Musgrave’s attorney, Kel McClanahan, said Thursday they plan to appeal the decision.

“While we’re obviously disappointed with the results, we recognized from the outset that this would be an uphill battle,” he said. “We understand that this is a thorny issue and will ultimately need to be decided by a superior court.”

McClanahan disagreed with Howell’s assertion that the report was a preliminary and advisory step to inform future legislation.

The committee crafted the report to “preserve information and inform people about what had happened. It is not deliberative; it does not fall under the speech and debate clause protection,” he said.

Former Senate Intelligence Committee Chairwoman Sen. Dianne Feinstein (D-Calif.) released part of the report in 2014 over the objections of the intelligence community, making public a 500-page executive summary that said the CIA misled the White House and the public about torture of detainees in Afghanistan. She favored releasing the full report, but much of the more than remaining 6,000 pages is classified.

“I agree with the judge that the Senate Intelligence Committee should retain control over its own documents. I also continue to believe the full torture report — with appropriate redactions — should be released at some point,” Feinstein said in a statement. “The use of torture by the American government was a dark mark on our history that must never be allowed to happen again. We must continue to learn from our mistakes, and that means eventually releasing the torture report at an appropriate time.”

President Obama declared the full report part of his presidential records before he left office, which preserved a copy in the National Archives. Public requests for the document could trigger declassification starting in 2029.

When Republicans controlled the Senate under then-President Trump, Intelligence Committee Chairman Richard Burr (R-N.C.) insisted that all other copies of the report be retrieved from the executive branch, where they could potentially be subject to the Freedom of Information Act.

Sen. Mark Warner (D-Va.), the current committee chairman, said in a statement that the opinion recognizes that “the committee is committed to conducting vigorous oversight of the activities carried out by our intelligence agencies and to ensuring that the American public has visibility into those activities without jeopardizing intelligence sources and methods vital to our national security.”