Research Post: Is the Senate Intelligence Committee Report on Torture a Federal or Congressional Record?

I&A Research Teams are groups of dedicated volunteers who monitor breaking news and delve into ongoing topics affecting archives and the archival profession. Under the leadership of the I&A Steering Committee, the Research Teams compile their findings into Research Posts for the I&A blog. Each Research Post offers a summary and coverage of an issue. This Research Post comes from On-Call Research Team #2, which is mobilized to investigate issues as they arise.

Please be aware that the sources cited have not been vetted and do not indicate an official stance of SAA or the Issues and Advocacy Roundtable.

Summary of the Issue

Report of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s detention and Interrogation Program (Senate Report 113-288), also referred to in the media as the “Senate Torture Report” was sent to President Obama, the Director of National Intelligence, the Director of the CIA, the Attorney General, the Secretary of Defense, the Secretary of State, the Director of the FBI, and the CIA Inspector General on December 10, 2014. This report was an extensive five year Senate investigation of the CIA’s secret interrogations of terrorism suspects. It lays bare the extreme violence, severe tactics, and brutality against the suspects as well as the government’s dishonesty to cover that up.

Dianne Feinstein and Patrick Leahy wrote to the U.S. Attorney General and the Director of the FBI on November 5, 2015 and expressed disappointment that the Department of Justice (DOJ) was citing a still pending FOIA case (ACLU v. CIA) as justification for not allowing Executive Branch officials to read the full 6,700 page report. They were also concerned that personnel at NARA said they would not respond to inquiries on whether the report constitutes a record under the Federal Records Act because the FOIA case was pending, based on guidance from the DOJ. On April 28, 2016, members of various open government, human rights, civil liberties, and media organizations wrote a letter to the Archivist of the United States, David Ferriero. This letter justified their stance that Ferriero should use his statutory authority to determine that the report is indeed a federal document. Many in the general public are concerned that the report could disappear if it is not deemed a federal document and that it may thus never be made available. Developments on this issue include Richard Burr, who replaced Feinstein as Committee Chair, writing to agencies who received the report and requesting they return all copies back to the Senate. He also wrote to the White House and instructed them not to enter the report into the Executive Branch system of records, which was contrary to Feinstein’s instructions when the report was released. The ACLU filed an emergency motion in their FOIA suit and all agencies have committed to retaining their copies of the full report during the pending litigation. However, the CIA acknowledged that it destroyed its only copy of the report, “by mistake.”

bibliography of coverage of the issue:

January 21 2016 (updated) “Senate Torture Report – FOIA” American Civil Liberties Union
https://www.aclu.org/cases/senate-torture-report-foia

February 18, 2016 article “The CIA torture report belongs to the public” Al Jazeera America
http://america.aljazeera.com/opinions/2016/2/the-cia-torture-report-belongs-to-the-public.html

February 29, 2016 interview “Is the torture report a public record? An interview with the National Security Archive’s Lauren Harper” Melville House Books
http://www.mhpbooks.com/is-the-torture-report-a-public-record-an-interview-with-the-national-security-archives-lauren-harper/

April 28, 2016 Letter to Archivist on Executive Branch copies of Senate torture report
https://drive.google.com/file/d/0B03viEiWh0qWYnl0UGtleEdSY2M/view

May 2, 2016 article “Will the Senate Torture Report Disappear?” Bill of Rights Defense Committee
http://bordc.org/news/will-the-senate-torture-report-disappear/

May 3, 2016 article “Feds Urged to Preserve ‘Torture Report'” Courthouse News Service
http://www.courthousenews.com/2016/05/03/feds-urged-to-preserve-torture-report.htm

May 5, 2016 article “National Archives’ Refusal to Ensure Preservation of CIA Torture Report Alarms Rights Groups” AllGov
http://www.allgov.com/news/top-stories/national-archives-refusal-to-ensure-preservation-of-cia-torture-report-alarms-rights-groups-160505?news=858766

May 6, 2016 post “Archivist won’t Call ‘Torture Report’ a Permanent Record” Federation of American Scientists blog
https://fas.org/blogs/secrecy/2016/05/archivist-record/

May 13, 2016 article “Appeals Court Declines to Release Full ‘Senate Torture Report,” ABC News
http://abcnews.go.com/Politics/appeals-court-declines-release-full-senate-torture-report/story?id=39101136

May 13, 2016 article “American Public Is Not Entitled to See Full Senate Torture Report, Court Rules” Huffington Post
http://www.huffingtonpost.com/entry/senate-torture-report-full_us_573622e3e4b08f96c1832750

May 16, 2016 article “CIA Watchdog Accidentally Deleted Lengthy Torture Report” Government Executive
http://www.govexec.com/management/2016/05/cia-watchdog-accidentally-deleted-lengthy-torture-report/128342/

May 17, 2016 article “Will the CIA Disappear the Senate Torture Report?” Bill of Rights Defense Committee
http://bordc.org/news/will-the-cia-disappear-the-senate-torture-report/

March 17, 2016 article “Judges Consider Release of Full CIA Torture Report” U.S. News & World Report
http://www.usnews.com/news/articles/2016-03-17/judges-consider-release-of-full-cia-torture-report

May 17, 2016 article “Senate Report on CIA Torture is One Step Closer to Disappearing” World News Daily Information Clearing House
http://www.informationclearinghouse.info/article44678.htm

May 20, 2016 article “‘Urgent’ action needed to preserve CIA torture documents, groups warn” Yahoo News
https://www.yahoo.com/news/urgent-action-needed-to-preserve-cia-torture-165007608.html

May 20, 2016 article “Why Federal Agencies Must Still Preserve (and Should Finally Read) the SSCI Torture Report” Just Security
https://www.justsecurity.org/31197/federal-agencies-preserve-and-finally-read-ssci-torture-report/

June 3, 2016 post “FOIA Ombudsman’s Departure Worrisome, Archivist Will Not Call Torture Report a Federal Record and More: FRINFORMSUM 5/12/2016” National Security Archive blog
https://nsarchive.wordpress.com/2016/05/12/foia-ombudsmans-departure-worrisome-archivist-will-not-call-torture-report-a-federal-record-and-more-frinformsum-5122016/

The I&A Steering Committee would like to thank Rachel Seale for writing this post, and Steven Duckworth, Dave McAllister, Rachel Seale, and Alison Stankrauff for doing key research on the issue.

I&A On-Call Research Team #2 is:

Alison Stankrauff, Leader
Katherine Barbera
Anna Chen
Steven Duckworth
David McAllister
Rachel Seale

If you are aware of an issue that might benefit from a Research Post, please get in touch with us: archivesissues@gmail.com.

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