Should government release its secret study on CIA interrogation?

McClatchy Washington BureauNovember 27, 2013 

— More activists are suing to obtain a massive, secret study of CIA interrogation practices in a fight that could last longer than the study itself.

Overseen by Democratic Sen. Dianne Feinstein, chairwoman of the Senate intelligence panel, the 6,000-plus page study was three years in the making, as investigators probed how the Central Intelligence Agency imprisoned and harshly questioned suspected terrorists after the 9/11 attacks. So far, the Obama administration has resisted making public the study or its executive summary.

This week, the American Civil Liberties Union filed the second Freedom of Information Act lawsuit intended to pry loose the Senate Permanent Select Committee on Intelligence study, as well as the CIA’s response. Judging from history, the dispute will take a long time to resolve. So far, moreover, courts often have assented when the president’s emissaries demand secrecy in the name of national security.“It’s true that litigation takes longer than if the government voluntarily releases information,” Hina Shamsi, director of the ACLU’s National Security Project, said in an interview Wednesday, “but sometimes FOIA litigation is necessary . . . for informing the public.”

More than 1,000 FOIA lawsuits have been filed against the Justice Department and its sub-agencies since 2001, and an additional 1,000-plus FOIA lawsuits have been filed against the CIA and the Departments of Defense and Homeland Security during the same period, according to data compiled by The FOIA Project. The project was established by the nonpartisan Transactional Records Access Clearinghouse, based at Syracuse University.

Underscoring what critics say has been an increase in secrecy, there were more FOIA lawsuits filed during the first term of the Obama administration than in the last term of the prior Bush administration, the Syracuse-based project further found. Usually, such suits take a while.

In May 2011, for instance, the Electronic Frontier Foundation sued to obtain an opinion by the Justice Department’s Office of Legal Counsel opinion concerning FBI telephone surveillance. On Tuesday, 30 months after the original lawsuit was filed, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the ongoing case.

ACLU lawsuits filed starting in 2002 took years before they finally helped forced the release of “over 100,000 documents” relating to harsh CIA interrogation practices, Shamsi said.

Still other lawsuits consume lots of time only to crash in the end. Judicial Watch, for instance, sued in 2011 in hopes of obtaining photographs of the slain terrorist leader Osama bin Laden. Two years later, an appeals court sided with the Obama administration in rejecting the request.

“The courts often defer to government claims of national security,” attorney Jeffrey L. Light, who has filed FOIA lawsuits on behalf of other parties, acknowledged Wednesday, adding that “they’re owed a great deal of deference for those claims.”

The ACLU sued Tuesday in Washington, following up on an earlier Freedom of Information Act request for the Senate intelligence committee reports. The lawsuit was filed the same day the Justice Department formally responded to a similar lawsuit initiated in September by Light on behalf of California-based journalist Jason Leopold.

Leopold’s lawsuit asked for the executive summary, estimated to span about 300 pages, while the ACLU lawsuit asks for the entire three-volume study as well as the CIA’s written response. Both cases have been assigned to the same judge, U.S. District Judge James Boasberg.

“I don’t know that it will take years,” Shamsi said, when asked how long the litigation might last.

Boasberg has previously been sympathetic to some FOIA requests, as when he ordered the Justice Department earlier this year to release to Citizens for Responsibility and Ethics in Washington more documents concerning former California congressman Jerry Lewis. That ruling came two years after the lawsuit was filed.

In a further move that Shamsi said could be helpful, Feinstein expects to hold a vote of the 15-member Senate intelligence committee on whether to formally recommend public release of the CIA interrogation study. In December 2012, the committee voted 9-6 to adopt the report, with Republican members including Sen. Marco Rubio of Florida and Sen. Jim Risch of Idaho voting against adopting the study.

The upcoming committee vote will not, by itself, end the freedom-of-information dispute.

Authored by the late Sacramento, Calif., congressman John Moss, the Freedom of Information Act authorizes lawsuits to compel disclosure of documents by executive branch agencies. It does not, however, cover Congress, so a FOIA request cannot be filed directly with the Senate.

Instead, Leopold sued the Justice Department while the ACLU sued the CIA, each seeking the respective agency’s copy of the Senate committee report. The Obama administration’s first defense is that the report is not an “agency record” covered by the Freedom of Information Act because it was a product of Congress rather than the executive branch.

A key 1980 Supreme Court decision established that an agency must “create or obtain” a record and “be in control” of it in order for the record to be subject to Freedom of Information Act. If the ACLU and Leopold clear this hurdle, they will face the next layer of defense, involving national security claims.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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