OpenTheGovernment.org Challenges Ongoing Classification of the CIA Torture Program

Earlier this week, OpenTheGovernment.org filed a detailed complaint with the Information Security Oversight Office (ISOO), arguing that even after the release of the Senate torture report’s executive summary last December, the Executive Branch is wrongfully classifying information about the CIA’s rendition, detention and interrogation program. Specifically, OpenTheGovernment.org argues that at least five categories of information about the torture program are being kept secret in violation of the Executive Order that governs national security classification.

1. The pseudonyms and titles, and in some cases the names, of CIA officials and contractors implicated in the torture program. The CIA successfully insisted on redacting the titles and pseudonyms of officials implicated in the torture program over the Senate Intelligence Committee’s objections, by claiming that it was necessary to protect undercover agents and their families. OpenTheGovernment.org’s complaint demonstrates that:

–At least two individuals whose titles and aliases are blacked out of the Senate report, Jonathan Fredman and Robert Eatinger, are CIA attorneys who had a crucial role in the legal authorization for torture, and have publicly acknowledged their real names and affiliation with the agency for years.

–According to credible press reports, another key figure in the black site program whom the agency would not allow the Senate to identify by pseudonym, Charlie Wise, died nearly a decade ago.

–The CIA continues to maintain that the identities of contract psychologists James Mitchell and Bruce Jessen and their company Mitchell, Jessen and Associates are classified, even though Mitchell has been released from his CIA non-disclosure agreement and has spoken in detail to the press about his and his company’s role in the torture program.

2. The names of countries that hosted CIA black sites. Not only have the names of the countries that hosted CIA black sites been public for years, but in several cases—Afghanistan, Poland, and Romania—they have openly acknowledged that the CIA held prisoners there. The President of Afghanistan has asked the United States to make further disclosures about the torture of Afghan citizens, and hold the perpetrators responsible. The Polish government and former Polish officials have acknowledged that it allowed the United States to operate a black site. The Polish government has also paid compensation to two former CIA detainees tortured there, and made repeated requests to the U.S. government for evidence and assistance in an ongoing criminal investigation into the black site. Former Romanian officials also recently acknowledged allowing the CIA to hold prisoners. Classification of those countries’ names does not protect them; it only protects the CIA from accountability.

3. Former CIA detainees’ descriptions of the details of their own torture. The Executive Order governing classification states that the government can only classify information that “is owned by, produced by or for, or is under the control of the United States government.” But for years, the U.S. government has successfully prevented former CIA prisoners held in Guantanamo from disclosing their own memories of torture. After the Senate report was released, the CIA revised its classification guidance to relax these restrictions, and the military released one former CIA detainee’s account of his mistreatment. However, the CIA still intends to censor prisoners’ descriptions of where they were tortured, the exact dates of their transfer from one prison to another, and descriptions of the individuals who perpetrated their abuse. And for at least one detainee, Abu Zubaydah, the government continues to claim that all details of his torture are classified. It is past time for this censorship regime to end.

4. The CIA’s involvement in the torture of prisoners in Iraq. The Senate report did not examine the CIA’s treatment of prisoners in military custody, and so the release of the executive summary did not change the agency’s position that the details of its officers’ treatment of prisoners at military prisons in Iraq after the U.S. invasion are classified. OpenTheGovernment.org demonstrates that it has been clear since the release of the Abu Ghraib photographs in 2004 that a CIA officer killed a prisoner at Abu Ghraib, and the CIA’s role in the torture of “ghost detainees” has also been confirmed in several unclassified government documents. This information should therefore be officially declassified.

5. The CIA’s rendition of prisoners to torture in foreign custody. An Appendix to the Senate report lists the names of 119 prisoners who were held in CIA custody. But dozens of other prisoners were “rendered” by the CIA to torture in prisons in Syria, Libya, Egypt, Jordan, and other regimes. They have received no official acknowledgment of the United States’ role in their abuse, and their attempts to seek redress for torture have been defeated by official secrecy. OpenTheGovernment.org lists approximately 50 detainees whose “rendition” to foreign custody and subsequent mistreatment has been publicly reported, but never acknowledged by the U.S. government.

The complaint, which is signed by OpenTheGovernment.org’s National Security Fellow, Katherine Hawkins, concludes:

The Executive Order on national security classification formally forbids agencies from classifying information, or failing to declassify information, in order to “conceal violations of law,” “prevent embarrassment,” or “prevent or delay the release of information that does not require protection.” It also forbids classification of any information unless “the information is owned by, produced by or for, or is under the control of the United States government.”

Despite these prohibitions, the U.S. government has formally classified many details of an unlawful, embarrassing torture program for well over a decade. Secrecy regarding “black sites” and torture has played a major role in ensuring that no CIA personnel could be prosecuted for torture, war crimes, destruction of evidence, or other relevant federal crimes. It has ensured that civil courts were closed to victims of torture, indefinitely delayed trials of the accused perpetrators of the September 11 attacks, and put the United States in breach of its obligations under the Convention Against Torture.

It is important to bear in mind that upholding the classification of the details of the torture program not only conceals illegality, but makes it a crime for individuals with security clearances to reveal or openly discuss it. This complaint is entirely sourced to information in the public domain—but if I held a security clearance, I could not file it without risking my livelihood, and possible prosecution.

The full document is available here.

The Classified Classification Guidance on Torture, and President Obama’s Legacy

by Katherine Hawkins

This June, OpenTheGovernment.org filed a Freedom of Information Act (FOIA) request for the classification guidance that now governs the CIA’s rendition, detention and interrogation (RDI) program, to see precisely how it had changed after the release of the Senate torture report’s Executive Summary last December.

The CIA’s response, received yesterday, vividly illustrates how much about the agency’s torture program remains secret. The classification guidance is four and a half pages long. Three and a half of those pages–presumably explaining what is still secret about CIA black sites and rendition, and why it still meets the criteria for classification—are entirely whited out. The only legible section of the document, which lists “Information Relating to the Former RDI Program That No Longer Is Classified,” is less than a page long.

The full document is available here.

The Obama administration largely sided with the CIA in the agency’s disputes with its oversight committee about the torture report, and has avoided even reading the full Senate report in an attempt to defeat a FOIA request for its release. Nevertheless, the President has made a number of public statements about the need to confront honestly the United States’ past use of torture so that it cannot be repeated. Just last week, he wrote the following in response to twelve Nobel Peace Prize laureates’ call for declassification of the program:

we do not claim to be perfect, and I have been very clear that in our response to the attacks of September 11, 2001, although our Nation did many things right, some of our actions were contrary to our values. The report of the Senate Select Committee on Intelligence on the CIA’s former detention and interrogation program reinforced my view that these harsh methods were not only inconsistent with our values as a Nation but did not serve our broader national security interests. I consistently supported the declassification of the executive summary, findings, and conclusions of the Committee report, as I firmly believe that public scrutiny, debate, and transparency regarding this program will help ensure these methods will never again be used.

In order to serve the same goals, civil society’s model Open Government Partnership National Action Plan includes a suggested commitment from OpenTheGovernment.org on declassification of information about detainee treatment:

Commitment: 

Declassify and publicly release crucial evidence regarding the rendition, detention, and interrogation of prisoners, and current policies towards detainee treatment. In particular, the administration should:

(1) Release the full, 6700 page SSCI report.

(2) Release the Panetta Review

(3) End all attempts to classify detainees’ memories of their own treatment

(4) Declassify the names and information concerning the treatment of the detainees whom the United States “rendered” to foreign custody

(5) Declassify the CIA’s treatment of prisoners in military custody in Iraq and Afghanistan

(6) Declassify the foreign countries that housed black sites or participated in the rendition program, particularly if those countries have acknowledged their own role.

(7) Declassify the full titles and pseudonyms, and (if acknowledged by the individuals in question, or in supervisory positions) names of individuals involved the CIA rendition, detention and interrogation program

(8) Declassify and release all CIA Inspector General’s reports, investigations and reviews into the CIA’s detention and interrogation program, and fully release all versions of the Office of Medical Services Guidelines on Medical and Psychological Support of the program.

(9) Release documentation from John Durham’s investigations into the CIA torture program, including records of FBI interviews and the reasons that prosecution was declined

(10) Release the report of the Special Task Force on Interrogations and Transfers

(11) Release statistics regarding hunger strikes and force feeding at Guantanamo Bay, and the current Standard Operating Procedures for management of hunger strikes, enteral feeding, and the use of restraints (including restraint chairs).

(12) Release, with appropriate redactions for individual privacy, videotapes of force feeding at Guantanamo Bay and photographs of detainee abuse in Iraq and Afghanistan

The commitment—and similar model commitments about targeted killing, surveillance, and secret law–is ambitious but entirely achievable. The President has clear legal authority to declassify and release this information, just as he declassified the Office of Legal Counsel torture memos over the CIA’s objections during his first year in office. But we have not yet received any indication from the White House of whether it is being considered.

ACLU v. Clapper Shows that Secret Courts are No Substitute for Real Judicial Review

by Katherine Hawkins

A unanimous panel of the Second Circuit Court of Appeals yesterday ruled that the NSA’s nationwide collection of Americans’ phone records is illegal, unauthorized by section 215 of PATRIOT or any other statute.

The opinion in ACLU v. Clapper is only the latest in a series of court decisions and government reports discrediting the bulk collection program. Even so, the Second Circuit’s ruling is a landmark—and it demonstrates the fundamental difference between independent, adversarial judicial review, and secret legal approvals for secret programs.

As the New York Times wrote, yesterday’s ruling was “the first time a higher-level court in the regular judicial system has reviewed the program” although it had repeatedly been approved in secret by the Foreign Intelligence Surveillance Court (FISC) since 2006. The FISC approved the bulk collection program for years without issuing any opinion—even a classified one—analyzing its legality.  The FISC also never heard legal arguments that the program violated the Constitution, or was unauthorized by statute.

As Second Circuit’s opinion states, Congress reauthorized section 215 of the PATRIOT Act after the call records program began, but it did so when the program

was shrouded in the secrecy applicable to classified information, and only a limited subset of members of Congress had a comprehensive understanding of the program or of its purported legal bases. There was certainly no opportunity for broad discussion in the Congress or among the public of whether the FISC’s interpretation of § 215 was correct. Finding the government’s interpretation of the statute to have been “legislatively ratified” under these circumstances would ignore reality.

The court calls this secrecy “understandable.” That is debatable, particularly since the government did not simply classify the extent of NSA surveillance before Edward Snowden’s disclosures. It also actively misled Congressthe public, and the courts about them, in an effort to prevent open debate or judicial review.

Both the Second Circuit opinion and Judge Robert Sack’s concurrence acknowledge that the Snowden leaks “led to this litigation.” The opinion notes that the Second Circuit may well have reached a different result from FISC in part because the former “received the benefit of an adversarial presentation of the issues” in open court.

Judge Sack’s concurrence explains this at greater length. He compares Snowden’s disclosures to Daniel Ellsberg’s leak of the Pentagon Papers, and discusses the crucial differences between secret ex parte proceedings and ordinary judicial review:

Two of the fundamental characteristics of ordinary Article III Courts that are often considered central to their mission are transparency (ʺopennessʺ) and a properly functioning adversary system…. most Article III courts, including this Court, operate under a strong presumption that their papers and proceedings are open to the public.

Sack’s concurrence also discusses the crucial role that a New York Times attorney’s cross-examination of government witnesses played in the Pentagon Papers case, leading the district court judge to “find as a fact” that the government had not demonstrated “that the publication of these historical documents would seriously breach the national security.”

The Executive Branch also seems to realize what a difference public disclosure and adversarial, independent judicial review can make in evaluating the legality of national security programs. It has responded by using state secrets privilege, classification, and standing arguments to oppose judicial review whenever possible, and by concealing its own controlling interpretations of law from Congress and the public. Too often, the federal courts have acquiesced.

In 2013, in Clapper v. Amnesty International, the Supreme Court held that civil society organizations, detainees’ lawyers and journalists could not challenge NSA spying under section 702 of the FISA Amendments Act, because their fears of surveillance were “highly speculative” (overturning a Second Circuit decision in which Judges Sack and Lynch took part). The reason the plaintiffs were forced to “speculate” about whether the NSA was collecting their communications, of course, was the secrecy in which the agency operated. The government also made several inaccurate statements about the 702 program during oral arguments.

In February 2015, in Jewel v. NSA, a federal judge in California held that the plaintiffs could not challenge the 702 program based on a similar Catch 22. The plaintiffs’ evidence that their communications were targeted remained were too “speculative” for them to be allowed to sue. In any case, the judge said, the case had to be dismissed on grounds of state secrets privilege, because the government had shown that “could not proceed without risking exceptionally grave damage to national security.” The only proof of the harm to national security was contained in government declarations that were kept secret not only from the public, but from the plaintiffs and their lawyers.

The use of secret, ex parte government declarations to dismiss cases is not limited to surveillance. In March of this year, a federal judge in New York dismissed a private defamation case on grounds of state secrets privilege, in Restis v. American Coalition Against Nuclear Iran, Inc. The plaintiffs and their lawyers were not only denied access to the government’s declarations, but were also not told which government agency submitted them. As the court stated, dismissing the case meant that “Plaintiffs not only do not get their day in court, but cannot be told why.” It dismissed the case anyway.

As the Restis court noted, federal cases often rely on secret, ex parte government declarations on the need for secrecy even in cases where opposing counsel have high-level security clearances. Clearance or no, the government gets to decide whether opposing counsel have a “need to know” the information that may well prove decisive to their client’s case.

Standing and the state secrets doctrine are only two of a host of legal arguments that the government can use to persuade courts not to rule on the legality of its national security programs. The Executive can also argue that the defendants have immunity from suit; that the case is a “political question”; that even if the government’s acted illegally there is no right to sue them for it; that the plaintiffs are not, legally, speaking, “persons”. The list of ways in which plaintiffs can lose national security cases without any ruling on the legality of the government’s actions is nearly endless.

If regular courts do not hear national security cases on the merits, then who says what the law is? Sometimes, it is a secret court like the FISC. More often, it is attorneys within the Executive Branch itself—particularly the Justice Department’s Office of Legal Counsel (OLC). OLC opinions, as former Attorney General Eric Holder acknowledged in 2010, are often “effectively…the final word on the controlling law” for the United States government on issues “that are unlikely to be resolved by the courts.” Under the Bush administration, OLC memos redefined torture. Under Obama, they set the legal limits on the drone program. Surveillance under Executive Order 12333 is governed in part by an OLC memo written during the Reagan administration. But most OLC memos remain as secret from the public, and as inaccessible to Congress, as the Section 215 program was before the Snowden disclosures. Even for unclassified memos, OLC routinely redacts their titles and dates as well as their content in response to Freedom of Information Act requests. When it comes to OLC memos about classified programs—OLC won’t even reveal how many it has written under the Obama administration.

The intelligence community constantly reassures us that its actions are legal and constitutional. But as the Second Circuit’s ruling demonstrates, without an opportunity to read the legal justifications, or debate them in Congress, or test them in independent courts that hear arguments from more than one side, those reassurances have little value. That is why meaningful surveillance reform must include checks on government secrecy.

The GTMO Military Commissions Are Starting to Move Away from Censorship

by Katherine Hawkins

Two months ago today, the Senate Intelligence Committee released the Executive Summary of its report on the CIA’s detention and torture program. On the same day, OpenTheGovernment.org called on the Executive Branch to abandon “the argument that former CIA prisoners’ memories of their abuse are classified,” which has led to endless delays in the Guantanamo military commissions and to violations of the Convention Against Torture, and revise the classification guidance on the black site program to reflect what was disclosed in the report. As I wrote last month,

Until the Senate report was released, the CIA had successfully argued that its “enhanced interrogation techniques” had been declassified “only in the abstract”. The details of every individual’s treatment in CIA custody remained secret, and the CIA claimed that release of that information would cause “exceptionally grave” harm to national security. That claim, more than any other, was the foundation for the wall of secrecy that still surrounds the torture program.

If the CIA had censored the details of individual detainee’s treatment from the Senate report, almost the entire document would have been blacked out—but the Senate made clear it would not accept this. The real names and the fake names of the CIA officers who participated in torture are redacted; the prisoners’ names are not. The locations of CIA prisons are redacted; the horrifying details of what happened there are not.

If the same standard were applied to full, 6000-page Senate torture report, we would learn many stories omitted from the Executive Summary. If it were applied to documents from the CIA inspector general’s and Justice Department’s investigations, we might finally learn the details of the CIA’s role in the homicides of Manadel al-Jamadi in Iraq and Gul Rahman Afghanistan—and why no one was ever held accountable for those deaths. If it were applied to the Guantanamo military commissions, the CIA and the prosecution would have to abandon their argument that the defendants’ memories of their own torture are classified. The courtroom censorship button could be switched off, and defense could finally proceed with their factual investigation of the case.

Proposed Changes to the Protective Order

This week, for the first time, there are promising signs that the Executive Branch may finally be ready to abandon its attempt to classify prisoners’ memories of their treatment at CIA black sites. General Mark Martins, the chief prosecutor of the military commissions, recently announced that the prosecution has asked military judges to amend the court orders forbidding disclosure of the defendants’ “observations and experiences” regarding

(d) The enhanced interrogation techniques that were applied to an accused . . . through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques; and

(e) Descriptions of the conditions of confinement of any of the accused . . . through 6 September 2006.

(The legal motions requesting these changes are still under seal, and have not yet been granted by the military commissions judge.)

There are limits to the changes the prosecution is seeking. If the judge approves the proposed amendments to the protective order, the military commissions defendants still will not be able to identify or describe the CIA personnel or contractors involved in their mistreatment; name the countries where they were held; or specify particular dates on which they were rendered from one prison to another. Former CIA detainees could describe what happened to them, but could not provide details about “who,” “when” or “where.”

The Black Site Translator   

The prosecution’s proposed changes to the protective order were supposed to be discussed at today’s hearing in the September 11 case. Instead, the hearing ended almost immediately after it began, because several defendants said that a government-assigned translator present in the courtroom had previously worked at a CIA black site. Ramzi Bin Al Shibh said of the interpreter, “I cannot trust him because he was working at the black site with the CIA and we know him from there.” Cheryl Bormann, defense counsel for Walid Bin Attash, said that her client had similar concerns, and the she regarded the assignment of a black site translator as a war court translator as either “the biggest coincidence ever” or another example of a “pattern of infiltration by government agencies into the defense teams.” As a result, the hearing was recessed until Wednesday morning. This comes after months of delays in the September 11 case resulting from a prior FBI investigation into Bin Al Shibh’s defense team.

It seems that the torture program, and the attempts to conceal it, will continue to haunt the military commissions for the foreseeable future. But the proposed changes to the protective order are a major step in the right direction. The next logical step is applying the same standards to former CIA detainees’ habeas corpus cases, to CIA documents that the government has refused to disclose in response to Freedom of Information Act requests, and to the full Senate torture report.

Groups to Obama: Stop Ignoring the Torture Report

by Katherine Hawkins

On January 28, OpenTheGovernment.org and 8 other groups wrote to President Obama, asking his administration to stop ignoring the nearly 7000-page torture report by the Senate Select Committee on Intelligence, and reject Senator Richard Burr’s unprecedented request for the report’s return. The letter states in part:

On December 9, then-Committee Chairman Dianne Feinstein filed with the Senate the final version of the Committee’s 6,963-page report on the CIA’s former detention and interrogation program.  She sent the full report to you and to the heads of relevant executive branch agencies the next day.  It is clear from its declassified executive summary that the full report details significant institutional and operational failures, across multiple executive branch agencies, which resulted in gruesome human rights violations.  Senator Feinstein explicitly reiterated her intent to make the full report available throughout the executive branch, as appropriate, “to help make sure that this experience is never repeated.”

Yet, according to the government’s most recent court filing in a Freedom of Information Act lawsuit seeking public access to the full report, when the Justice Department, State Department, Defense Department and CIA received their respective copies, each immediately locked it away and virtually none has made meaningful use of it since.  “Neither DOJ nor DOS, moreover, has even opened the package with the [compact disc] containing the full Report.  And CIA and DoD have carefully limited access to and made only very limited use of the report.”  The State Department went so far as to mark the envelope containing the report “Congressional Record – Do Not Open, Do Not Access.”  The FBI has not even retrieved its copy, which was sent to the Justice Department, much less reviewed it.

Whether these actions are motivated by indifference or an attempt to circumvent the public’s access to the full report under the Freedom of Information Act, they are unacceptable.

The full letter is available here.

In a related development, the ACLU has filed an emergency motion in its Freedom of Information Act case for the full torture report, arguing that it would be unlawful for the Executive Branch to deprive a court of jurisdiction by sending the report back to the intelligence committee.

SSCI Chairman to CIA: We’ll Hide Your Documents if You Hide Ours

By Katherine Hawkins

Shortly after he became chairman of the Senate Select Committee on Intelligence in January, Senator Richard Burr told reporters in his home state that he had no intention of trying to rewrite the committee’s 6700-page, $40 million torture report. Burr said that despite his disagreements with the report, he wanted to “look forward and do oversight in real time.”

It turns out that Burr’s statement was half true: he doesn’t want to rewrite the torture report. But he does want to help the CIA slip it into a memory hole—along with the Panetta Review, an internal CIA study that confirms the Senate report’s conclusions.

Taking Back the Torture Report

On January 14, Burr wrote to President Obama objecting to former Chairman Dianne Feinstein’s December 10 transmission of the full torture report to the Executive Branch:

As the Chairman of the Committee, I consider that report to be a highly classified and committee sensitive document . It should not be entered into any Executive Branch system of records. For that reason, I request that all copies of the full final report in the possession of the Executive Branch be returned immediately to the committee.

Burr’s entire letter is one paragraph long. It cites no authority for the bizarre claim that it was improper for Senator Feinstein to mail an official Senate oversight report to the President and the relevant agencies.

Burr refers to the report as “committee sensitive”—but the final report was officially filed with the President of the Senate and made available to all Senators on December 9. As Feinstein wrote to the White House after Burr’s letter,

The full, 6,963-page classified report transmitted on December 10, 2014, is an official Senate report (S. Rep. 113-288). The report has the same legal status of any other official Senate report from this Committee or any other Senate committee.

An official, final committee report is not a “committee sensitive” document. Even if it were “committee sensitive,” there would be nothing improper about transmitting it to the White House and CIA. While SSCI’s rules on “committee sensitive materials” unjustifiably lock the public out of the oversight process, they are not meant to lock out the executive agencies being overseen. Rule 9.7 states that members and staff “do not need prior approval to disclose classified or committee sensitive information to person in the Executive branch” if members and staff are “engaged in the routine performance of Committee legislative or oversight duties,” and if the recipients have the required security clearance and need-to-know. Feinstein’s December 10 letter clearly meets those requirements.

Burr’s letter to the President states that he and then-Vice Chair Saxby Chambliss were not copied on Feinstein’s letter transmitting the report, and that it only “recently came to my attention.” But there was nothing secret about the transmittal letter, which was made available to all intelligence committee members on the day it was sent, and has been posted publicly since mid-December. There was also nothing secret about the committee’s intention to disseminate the full, final report to the Executive Branch—which Feinstein stated in a public letter to the White House in April, and reiterated in a letter printed on the very first page of the official Senate version of the torture report.

So what’s actually going on here? Senator Burr, while he clearly had notice of Feinstein’s transmission of the full report to the administration in December, may not have been aware of its legal implications until more recently. Perhaps a staffer noticed it; more likely, someone in the administration alerted him.

Unlike the executive summary published on December, the full Senate torture report is classified. But the ACLU has a pending lawsuit seeking its disclosure under the Freedom of Information Act, and Guantanamo military commissions lawyers have been attempting to access the document for months. In response, Department of Justice lawyers and military commissions prosecutors have repeatedly claimed that the report was a Congressional record, exempt from FOIA or discovery requests. (The administration also inaccurately represented for months that the CIA had never received a copy of the report, but was forced to retract that claim in October. A DOJ attorney attributed the misstatements to “a miscommunication over at the agency as to what we were looking for…They didn’t realize that they had it”)

Senator Feinstein’s December 10, 2014 letter to President Obama made this argument much harder. Feinstein encouraged President Obama to use the full study “as you see fit” to ensure the United States never again engages in torture. She encouraged the study’s distribution “within the CIA and other components of the Executive Branch as broadly as appropriate,” and cc’ed the Director of National Intelligence, the Attorney General, the Secretary of State, the Secretary of Defense, the directors of the FBI and CIA, and the CIA Inspector General.

Feinstein’s letter did not change the report’s classification level. But if the Obama administration loses the argument that the report is a Congressional record, a judge could order its disclosure to Guantanamo detainees’ lawyers, who hold high-level security clearances. In FOIA cases, the CIA would have to provide some justification for continuing to classify the details of each individual detainee’s torture.

Based on documents filed in the ACLU’s FOIA case late Wednesday night, the Obama administration decided it would not drop the “Congressional record” argument without a fight. Instead of heeding Feinstein’s request to distribute the torture report “as broadly as appropriate,” the administration has done its best to pretend it did not exist. The FBI has not picked up its copy. The State Department and Justice Department have kept theirs in sealed envelopes, which no one has ever opened or read. The Defense Department has provided access to two officials, who do not include anyone in the Office of Military Commissions. The CIA will not say exactly how it has handled the full report, but claims that access to the final version has been “even more tightly controlled” than access to the December 2012 version. This handling is entirely inconsistent with Feinstein’s December 2014 transmittal letter, but quite consistent with Burr’s January 14 request that the document “not be entered into any Executive Branch system of records.”

But Burr’s letter is too late. There is no plausible argument that the committee’s transmittal of the report was invalid, and Burr has no authority to take it back. The Department of Justice’s own Freedom of Information Act guide states regarding Congressional records that:

Congress’s intent to exert control over particular records must be evident from the circumstances surrounding their creation or transmittal, rather than accomplished on a “post hoc” basis.

(p. 14-15).

Giving Back the Panetta Review

In addition to trying to take back the full torture report, Senator Burr has announced that he intends to give the Panetta Review back to the CIA.

The Panetta Review is the CIA document, or series of documents, that prompted the CIA’s unlawful search of Senate computer’s last January. At the request of CIA director Leon Panetta in 2009, the CIA did its own analyses of the documents that the agency turned over to Senate investigators, known popularly as “the Panetta Review.” The ACLU and investigative reporter Jason Leopold have sued under FOIA for copies of the Panetta Review. The government opposes both suits, on grounds that the documents are drafts subject to the “deliberative process” privilege.

According to Senator Dianne Feinstein, former Senator Mark Udall, and a recent New York Times report, the Panetta Review acknowledges that the CIA deceived policymakers about the torture program. The agency’s official response to the Senate report denies this. Udall called Panetta Review “a smoking gun…as significant and relevant as it gets,” because the documents show that the CIA is “continuing to willfully provide inaccurate information and misrepresent the efficacy of torture.”

Senator Burr’s view of the Panetta review is quite different. “The Panetta Review was never intended for the committee to have,” he told the Huffington Post last week, and “we will probably send it back where it came from.” Burr plans do this without knowing what the document says. He and five other Republican Senators wrote, on page 10 of their official response to the torture report, that

given the CIA’s repeated assertions of privilege concerning [the Panetta Review] since the January meeting with Director Brennan, at no time has a minority member or staff handled the document or reviewed its contents.

(emphasis added.)

In short, the new chairman of the CIA’s Senate oversight committee seems to believe that the CIA shouldn’t read damaging Senate reports, the Senate shouldn’t read damaging CIA reports, and the public shouldn’t read anything. Fortunately, many other Senators disagree.

Overclassification: The First Step is Admitting You Have a Problem

by Katherine Hawkins

The Inspector General for the Office of the Direct of National Intelligence (DNI) has released its annual report on over-classification. Like most reports by government agencies on this subject, it acknowledges certain, minor bureaucratic problems with the way the classification system runs. But the Inspector General found “no instances” of violations of Section 1.7 of the Executive Order governing classification, which states:

In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1)  conceal violations of law, inefficiency, or administrative error;

(2)  prevent embarrassment to a person, organization, or agency;

(3)  restrain competition; or

(4)  prevent or delay the release of information that does not require protection in the interest of the national security.

Of course, the intelligence community conceals illegal and embarrassing information all the time. DNI’s position, though, is that this happens only by coincidence.

For example, on December 9, 2014, the Senate intelligence committee released the executive summary of its torture report—500 pages worth of embarrassing details about CIA “violation of law, inefficiency [and] administrative error.” A few days later, DNI General Counsel Robert Litt insisted that all of the previously-secret information in the torture report was properly classified, and was declassified only as a matter of executive discretion. “There’s a difference between classifying something for the purpose of covering up illegal activity and classifying something for legitimate national security reasons that happens to involve illegal activity,” Litt said. He claimed never to have witnessed the former.

The claim that the entire Senate torture report was properly classified is not only implausible. It is also harmful, even today.

Even after the release of the Senate report’s executive summary, many crucial facts and documents about the CIA torture program remain hidden: the full, over-6000 page version of the torture report; former CIA detainees’ memories and descriptions of their own treatment in CIA custody; the “Panetta Review,” an internal CIA document in which the agency admits the extent to which it provide false information about torture’s successes; eleven CIA Inspector Generals’ reports into torture and rendition; every record from the Department of Justice’s failed criminal investigations into the program; and virtually all information about the CIA’s Office of Medical services.

OpenTheGovernment.org has asked that the Executive Branch apply the same standards of classification of this information as to the torture report’s executive summary.

It’s a modest request, but a significant one. Until the Senate report was released, the CIA had successfully argued that its “enhanced interrogation techniques” had been declassified “only in the abstract”. The details of every individual’s treatment in CIA custody remained secret, and the CIA claimed that release of that information would cause “exceptionally grave” harm to national security. That claim, more than any other, was the foundation for the wall of secrecy that still surrounds the torture program.

If the CIA had censored the details of individual detainee’s treatment from the Senate report, almost the entire document would have been blacked out—but the Senate made clear it would not accept this. The real names and the fake names of the CIA officers who participated in torture are redacted; the prisoners’ names are not. The locations of CIA prisons are redacted; the horrifying details of what happened there are not.

If the same standard were applied to full, 6000-page Senate torture report, we would learn many stories omitted from the Executive Summary. If it were applied to documents from the CIA inspector general’s and Justice Department’s investigations, we might finally learn the details of the CIA’s role in the homicides of Manadel al-Jamadi in Iraq and Gul Rahman Afghanistan—and why no one was ever held accountable for those deaths. If it were applied to the Guantanamo military commissions, the CIA and the prosecution would have to abandon their argument that the defendants’ memories of their own torture are classified. The courtroom censorship button could be switched off, and defense could finally proceed with their factual investigation of the case.

But a recent court filing in the September 11 military commissions case shows the prosecution and CIA attempting to preserve as much of the existing secrecy regime as the judge will allow. The government’s position is that any information about the defendants’ treatment in CIA custody

that is not specifically set forth within the four corners of the Executive Summary remains classified and must continue to be treated as classified until such time as further classification guidance is provided by the United States.

The filing gives no indication of when the United States intends to provide further classification guidance—if ever.

There is no logical reason why the graphic details from the Senate report should be released, and all other details of individuals’ torture in CIA custody remain hidden. But the Executive Branch may not need to provide a logical reason, particularly if judges accept that release of the information in the Senate report was purely a matter of executive discretion. As I wrote in the Guardian last week,

In theory, Obama’s December 2009 executive order on national security classification should prevent the CIA from using secrecy to place itself beyond the rule of law, since the order specifically forbids classifying information to “conceal violations of law”. In practice, though, the prohibition is virtually never enforced. The Obama administration – like the Bush administration before it – takes the position that the CIA’s criminal actions can be legitimately classified if they are “intelligence sources and methods”. And neither Congress, nor the president, nor the courts have imposed any legal limit on what counts as an intelligence source or method. In practice, the phrase has come to mean “anything the intelligence community doesn’t want you to know. Congress needs to write a legal definition of “intelligence sources and methods” that imposes real limits, and makes clear that it excludes torture and other crimes.

The intelligence community’s claim that it is lawful and proper to censor evidence of torture should alarm us. So should the fact that the intelligence community’s inspector general—the official charged with uncovering evidence of waste, fraud and abuse—cannot find a single example of wrongful classification.