Even if the Trump administration returned all of its copies of the Senate’s classified report on the CIA’s use of torture to the Senate — a move that could shield the report from disclosure because Congress isn’t subject to public records laws — those aren’t the only copies out there.
The New York Times on Friday reported that executive branch agencies were planning to return copies of the Senate torture report — which spurred worried reactions from Democrats and government watchdogs that it would get buried or even destroyed.
There are other copies of the report, however, and that fact means there are a few ways that the report, or at least sections of it, could become public without the Senate’s say so — although it could take several years and the legal barriers to disclosure would be high.
The Senate Intelligence Committee in December 2014 published the executive summary of its analysis of the CIA’s detention and interrogation program. But the full report, which is approximately 6,900 pages, remains classified. Copies were sent to the White House, the CIA, the Director of National Intelligence, the Department of Defense, the Department of Justice, the FBI, and the Department of State. Efforts by the American Civil Liberties Union to obtain it from the agencies via the Freedom of Information Act were unsuccessful.
Agencies have started returning their copies at the request of Sen. Richard Burr, the chairman of the Senate Intelligence Committee, according to the Times report. Burr had opposed releasing the executive summary and had been asking the White House to return it since Republicans took control of the Senate in 2015. Democrats lamented that officials would no longer have a copy of the report as a tool to learn from, and government watchdog groups expressed concern that the public might never get a chance to see it.
There are several copies, however, that will remain beyond the Senate’s reach, at least for now. One resides at the federal courthouse in Washington, DC. Two federal judges in separate cases brought by individuals challenging their detention at the US military facility at Guantanamo Bay earlier this year ordered the government to bring a copy for the court to store, in response to concerns from the detainees’ lawyers that the report might be destroyed or become unavailable in the future.
The report isn’t part of the evidence in these cases as of now, but the detainees’ lawyers have argued that it is relevant. Stephen Vladeck, a national security law expert and professor at the University of Texas School of Law, said that by securing a copy of the report at the court, the lawyers were preserving it for any future legal fight over whether it should be entered into evidence.
If the report is entered into evidence, lawyers for the detainees would still have to clear several legal hurdles for it to become a public court record. Vladeck said the odds of that happening are low. A federal district judge in another Guantanamo Bay detainee case in 2014 ordered the unsealing of classified video recordings of forced feedings, but the US Court of Appeals for the DC Circuit reversed that order in March. The appeals court found that the lower court judge didn’t give enough weight to the government’s argument that releasing the tapes could harm national security. Vladeck said the DC Circuit’s decision would likely make it difficult for a judge to succeed in ordering the release of the torture report.
That copy of the report was the one that initially had been given to the Justice Department’s Office of Legislative Affairs, according to court filings. Even if the court returned it to the Justice Department, however, Attorney General Jeff Sessions said in a written response to questions during his confirmation proceedings earlier this year that he would not return the department's copy of the report to the Senate.
There’s another copy of the report held by the National Archives. President Obama included it as part of his archives, and under the Presidential Records Act it can remain under seal for 12 years. That doesn’t mean it will become public once that time period expires, though, Vladeck said. The government could ask that it remain secret, if it’s still considered a sensitive document and should remain classified, he said.
Vladeck identified a third possible route for the report, or at least sections of it, to become public. In January, a military judge overseeing the trial against men accused of plotting the 9/11 terror attacks ordered the US Department of Defense to preserve at least one copy of the report, since it contained potential evidence in the case. The department had confirmed to the judge that it had two copies, so to comply with the order the department would need to keep at least one. Unlike the federal district judges in Washington, the military judge didn’t order the department to provide a copy to the military commission.
Vladeck said that the defendants before the military commission have a stronger case for accessing and disclosing the report or sections than in the civil cases in federal court. But it would still be a long and hard-fought process. Even if the report contained relevant evidence, the government would get a chance to argue that there were alternatives to producing classified information in open court, such as putting together a summary of sections of the report at issue.
The government would have to show that any alternatives would still protect the defendants’ rights to confront evidence against them or present evidence that helps their case, Vladeck said. If the judge determines that there is no alternative, the government’s options would be limited to producing the information, dropping the case, or defying the judge, he said. The government took that third route in another 9/11 case and refused to produce witnesses. A federal district judge ordered a sanction against the government for the refusal, but that was later reversed by a federal appeals court.
“I suspect the government would fight tooth and nail to try to reach some kind of compromise … before they would acquiesce,” Vladeck said.
A spokesperson for the Defense Department could not immediately be reached on Friday afternoon.