WASHINGTON (CN) — A D.C. Circuit appeals panel ruled on Tuesday that a 6,700-page Senate Intelligence Committee report documenting the CIA’s use of torture in the wake of the 9/11 terrorist attacks will remain classified for the time being.
The decision derives from a lawsuit brought against Mark Warner, the current chair of the committee, by freelance journalist Shawn Musgrave, who sought to compel the disclosure of the report, asserting a common law right of access to the report.
The three-judge panel, made up of U.S. Circuit Judges Cornelia Pillard, Robert Wilkins and Michelle Childs — two Barack Obama appointees and a Joe Biden appointee, respectively — agreed with a federal judge that the Constitution's Speech or Debate Clause barred the report’s disclosure.
Pillard wrote in the court’s opinion that the clause, which is intended to shield lawmakers from facing questioning or potential prosecution for legislative acts, prevents the court from siding with Musgrave.
“Musgrave’s complaint must be dismissed because, even assuming a claim seeking to trigger a full declassification review of the report were not entirely barred, the nondisclosure privilege of the Speech or Debate Clause would preclude us from compelling the defendants to release the resultant less-redacted report,” Pillard wrote.
The Senate report, completed in 2014 summarizing the findings of a five-year study that began in 2009, is over 6,700 pages long, and is “highly critical of the CIA’s response to 9/11.” It was then shared with former President Obama and certain executive agencies to allow the federal government to learn from “bitter experience” and never repeat the system of detention and interrogation described in the report.
The report remained classified per the CIA’s request, but former Democratic Senator and then-Chair of the committee Dianne Feinstein released a 683-page, heavily redacted and abridged version. The report contains a foreword by Feinstein and a 500-page executive summary of the findings, with about 200 pages of additional and minority views from other members of the Committee.
Feinstein justified the decision to release the abridged version based on the full report’s length, noting that a declassification review would have delayed its release.
In January 2015, following the GOP’s gains in the 2014 midterm election, control of the Senate and the Intelligence Committee passed to the Republicans, with former Senator Richard Burr replacing Feinstein as chair of the committee. He requested that Obama and the executive agencies return their copies of the report, indicating an intent to “retain control” of the document.
Obama ordered the report be preserved as part of his official presidential records, while U.S. District Judge Royce Lamberth ordered that one full copy be kept by the Department of Defense and another by the U.S. District Court for the District of Columbia.
Citing that intent, the D.C. Circuit rejected a Freedom of Information Act request by the American Civil Liberties Union in 2013 to obtain the report.
Pillard wrote that further D.C. Circuit precedent has held that the Speech or Debate Clause has protected a wide range of legislative acts, such as voting, conduct at committee hearings, preparation of committee reports, authorization of committee publications and issuing subpoenas.
“A committee report is an outcome of a committee investigation,” Pillard wrote. “And, by the same token, the committee report itself is a privileged legislative document.”
In October 2016, a similar case, between Guantánamo Bay prisoner Abu Zubaydah and the federal government, reached the Supreme Court, where the justices directly referred to the CIA’s interrogation methods post-9/11 as “torture” during oral arguments.
While the justices ruled 7-2 that information about the torture program at CIA “black sites” is protected by the “state secrets privilege,” calls to release the full Senate report have only grown more common.
As far back as 2016, Daniel Jones, the author of the Senate report, said in an interview with The Guardian that it was high time to release the report for the sake of transparency.
“The country is ready,” Jones said, yet the report remains classified eight years later.
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