A federal judge ruled Thursday that the 6,963-page Senate report on the CIA's torture practices is exempt from the Freedom of Information Act and does not have to be released publicly.
The Senate Select Committee on Intelligence released a 480-page executive summary in December of last year. The report detailed the CIA's post-9/11 "enhanced interrogation practices" used on suspected terrorists to extract intelligence, concluding the CIA's torturing of captives only led to false confessions and fabricated information and produced no useful intelligence.
Democratic committee chairwoman Dianne Feinstein sent a copy of the full report to the CIA and President Obama, asking that the report be used in future development of CIA programs, but didn't seek to publicly declassify the full report at that time.
The American Civil Liberties Union filed a FOIA lawsuit to force the release of the full report, but U.S. District Judge James E. Boasberg concluded on Wednesday that the report and related "Panetta review" are exempt from FOIA requests since the report remains under congressional control, and Congress exempt itself from FOIA's.
"Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, longstanding practice, and current congressional rules," Boasberg said in his 26-page decision on Wednesday, though he did note that "this case is no slam dunk for the government."
The ACLU argued that the transfer of the report to the CIA released it from the congressional FOIA exemption rule. However, Boasberg disagreed, saying that the fact that the Feinstein had sent a copy of the full report to the CIA "should not be readily interpreted to suggest more wholesale abdication of control."
The decision cites a Senate intelligence committee letter sent to the CIA in June 2009, which "expressly stated its intent that the documents it generated during its investigation 'remain congressional records in their entirety and disposition,' such that 'control over these records, even after the completion of the Committee's review,' would 'lie exclusively with the Committee.'"
Hina Shamsi, director of the ACLU National Security Project, disagreed with the judge's assessment. "The direct, contemporaneous evidence shows that the full torture report is subject to the FOIA because Congress sent it to the executive branch with instructions that it be broadly used to ensure torture never happens again," Shamsi said in a statement, according to McClatchy. "The Senate's landmark investigation into a dark period in our nation's history should not stay behind closed government doors, but needs to see the light of day."
Current Senate intelligence committee chairman Richard Burr, R-N.C., said the release of the document would compromise national security and put American lives at risk, according to McClatchy.
"At the end of the day," Boasberg wrote, "the ACLU asks the court to interject itself into a high-profile conversation that has been carried out in a thoughtful and careful way by the other two branches of government. As this is no trivial invitation, it should not be blithely accepted. Absent more convincing evidence that the SSCI Report has 'passed from the control of Congress and become property subject to the free disposition of the agenc[ies] with which the document resides.'"
"[The ACLU] and the public may well ultimately gain access to the document it seeks," Boasberg added. "But it is not for the Court to expedite that process."