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Judges could be OK with Senate’s ‘CIA torture’ report staying secret

Appellate judges on Thursday sounded rather skeptical about efforts to disclose a secret Senate committee report about harsh CIA interrogations.

The judicial doubts, in turn, reinforced the long odds against the public ever seeing even a redacted version of the highly sensitive report that took five years and $40 million to complete. Democratic senators attribute much of the cost to the CIA itself.

Judges, including a recent finalist for the Supreme Court, repeatedly pressed questions about the American Civil Liberties Union’s request for the highly sensitive report, which was prepared while Democratic Sen. Dianne Feinstein of California chaired the Senate Select Committee on Intelligence.

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It’s a case in which Feinstein’s words matter; as do the sometimes competing words of her successor as committee chair, Republican Sen. Richard Burr of North Carolina. The key question is whether Congress surrendered control of the final report when Feinstein transmitted it to the executive branch in December 2014.

The Obama administration doesn’t think so, and at least one judge seemed to agree during a 35-minute oral argument Thursday.

“I think you’re straining real hard,” Senior Judge Harry Edwards told ACLU attorney Hina Shamsi, adding that “it doesn’t look like they gave up control.”

Control is important, because Congress exempted itself from the Freedom of Information Act. While the CIA is subject to the document-disclosure law, Edwards said Thursday that it seemed a “reach” to think that the spy agency ended up effectively owning the congressional report.

Appointed in 1980 by President Jimmy Carter, Edwards is one of three Democratic appointees on the U.S. Court of Appeals for the District of Columbia Circuit’s panel hearing the case. Another is Judge Sri Srinivasan, who was one of three finalists for the current Supreme Court vacancy.

Judge Merrick Garland, who secured the Supreme Court nomination Wednesday, was originally part of the three-judge panel as well. He was replaced by Judge David Tatel, who was not present for the 30-minute oral argument Thursday morning.


Informally dubbed the “torture report,” the 6,963-page document remains tightly classified, though a summary was released in December 2014. The inquiry details how the CIA during the George W. Bush administration detained suspects overseas and subjected them to brutally coercive but ultimately ineffective techniques.

The measures recounted in the 525-page public summary included dragging naked detainees across floors, depriving them of sleep for up to a week, threatening them with death and subjecting them to a forced “rectal feeding” with a puree of hummus, raisins, nuts and pasta with sauce.

Last May, while declaring that “this case is no slam dunk for the government,” U.S. District Judge James Boasberg rejected the ACLU’s bid to compel the release of the report.

Boasberg cited, in part, a June 2009 letter from Feinstein and Burr, in which they stressed that the “notes, documents, draft and final recommendations, reports or other materials” relating to the committee’s then-ongoing investigation would “remain congressional records” and thus “are not CIA records under the Freedom of Information Act” even if stored in a reading room at a CIA facility

While not as emphatic as Edwards, Srinivasan on Thursday also hinted at sympathy for the government’s position.

“That language is capacious enough to include the final report,” Srinivasan said of the June 2009 letter jointly signed by Feinstein and Burr.

Feinstein subsequently sent a solo letter in December 2014, urging that the full report should be “made available within the CIA and other components of the Executive Branch for use as broadly as appropriate.” Shamsi contends this means Congress was relinquishing control of the report.

The Obama administration counters that this assertion is undercut by a separate letter sent by Burr in January 2015, after he succeeded Feinstein as committee chairman. Burr called for “all copies” of the “highly classified and committee sensitive document” to be “returned immediately to the committee.”

“The assumption all along has been that, even if they go to the (CIA) reading room, they remain congressional records,” Srinivasan said, summarizing the government’s position and foreshadowing, perhaps, the case’s final outcome.

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