NYT: Classified Report on the C.I.A.'s Secret Prisons Is Caught in Limbo

http://www.nytimes.com/2015/11/10/us/politics/classified-report-on-the-cias-secret-prisons-is-caught-in-limbo.html

NOV. 9, 2015

Classified Report on the C.I.A.'s Secret Prisons Is Caught in Limbo

By MARK MAZZETTI and MATT APUZZO

WASHINGTON -- A Senate security officer stepped out of the December chill last year and delivered envelopes marked "Top Secret" to the Pentagon, the C.I.A., the State Department and the Justice Department. Inside each packet was a disc containing a 6,700-page classified report on the C.I.A.'s secret prison program and a letter from Senator Dianne Feinstein, urging officials to read the report to ensure that the lessons were not lost to time.

Today, those discs sit untouched in vaults across Washington, still in their original envelopes. The F.B.I. has not retrieved a copy held for it in the Justice Department's safe. State Department officials, who locked up their copy and marked it "Congressional Record -- Do Not Open, Do Not Access" as soon as it arrived, have not read it either.

Nearly a year after the Senate released a declassified 500-page summary of the report, the fate of the entire document remains in limbo, the subject of battles in the courts and in Congress. Until those disputes are resolved, the Justice Department has prohibited officials from the government agencies that possess it from even opening the report, effectively keeping the people in charge of America's counterterrorism future from reading about its past. There is also the possibility that the documents could remain locked in a Senate vault for good.

In a letter to Attorney General Loretta E. Lynch last week, Ms. Feinstein, a California Democrat, said the Justice Department was preventing the government from "learning from the mistakes of the past to ensure that they are not repeated."

Although Ms. Feinstein is eager to see the document circulated, the Senate is now under Republican control. Her successor as head of the Intelligence Committee, Senator Richard M. Burr of North Carolina, has demanded that the Obama administration return every copy of the report. Mr. Burr has declared the report [1] to be nothing more than "a footnote in history."

It was always clear that the full report would remain shielded from public view for years, if not decades. But Mr. Burr's demand, which means that even officials with top security clearances might never read it, has reminded some officials of the final scene of "Raiders of the Lost Ark," when the Ark of the Covenant is put into a wooden crate alongside thousands of others in a government warehouse of secrets.

The report tells the story of how, in the months after the Sept. 11, 2001, terrorist attacks, the C.I.A. began capturing people and interrogating them in secret prisons beyond the reach of the American judicial and military legal systems. The report's central conclusion is that the spy agency's interrogation methods -- including waterboarding, sleep deprivation and other kinds of torture -- were far more brutal and far less effective than the C.I.A. acknowledged to policy makers, Congress and the public.

For now, it is the most comprehensive chronicle of one of the most controversial counterterrorism programs after the Sept. 11 attacks.

The American Civil Liberties Union has sued the C.I.A. for access to the document, and at this point the case hinges on who owns it. Senate documents are exempt from public records laws, but executive branch records are not. In May, a federal judge ruled that even though Ms. Feinstein distributed the report to the executive branch, the document still belongs to Congress. That decision is under appeal, with court papers due this month.

Justice Department officials defend their stance, saying that handling the document at all could influence the outcome of the lawsuit. They said that a State Department official who opened the report, read it and summarized it could lead a judge to determine that the document was an executive branch record, altering the lawsuit's outcome. The Justice Department has also promised not to return the records to Mr. Burr until a judge settles the matter.

"It's quite bizarre, and I cannot think of a precedent," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. He said there are any number of classified Senate documents that are shared with intelligence agencies and remain as congressional records, even if they are read by members of the executive branch.

The findings of the report on the secret prisons remain the subject of fierce debate. A group of former senior C.I.A. officers published a book in September challenging its conclusions and methodology, and Senate Republicans have derided the investigation as shoddy and partisan.

John O. Brennan, the C.I.A. director, said at a conference last month that the report contained "many, many mischaracterizations" of the spy agency's work in the years after the Sept. 11 attacks. He said that while it focused on "some of the real shortcomings" of the detention program, "it did not take into account the tremendous sacrifice and service of some C.I.A. officers in keeping this country safe."

The full report is not expected to offer evidence of previously undisclosed interrogation techniques, but the interrogation sessions are said to be described in great detail. The report explains the origins of the program and names the officials involved. The full report also offers details on the role of each agency in the secret prison program.

The Justice Department, which played a central role in approving the interrogation methods, has even prohibited its own officials from reading the full report.

"The Department of Justice was among those parts of the executive branch that were misled about the program, and D.O.J. officials' understanding of this history is critical to its institutional role going forward," Ms. Feinstein wrote to the Justice Department last week in a letter she signed with Senator Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee.

In court, Justice Department lawyers have agreed with Mr. Burr's contention that the document belongs to Congress. As evidence, they point to an agreement between the C.I.A. and the Senate as the Intelligence Committee began its lengthy investigation. The Senate was under Democratic control at the time.

The agreement says that any "documents, draft and final recommendations, reports or other materials" generated during the investigation are congressional documents. "As such these records are not C.I.A. records under the Freedom of Information Act," the agreement says.

The A.C.L.U. argues that agreement was void once Ms. Feinstein sent the report to the government agencies. Because she clearly intended the executive branch to use the report, the A.C.L.U. contends, the committee gave up control of the document.

If Mr. Burr were to succeed in getting copies of the report returned to the Intelligence Committee, Mr. Aftergood said, he could slowly make it irrelevant.

"The longer that it's buried, the less relevant it becomes," he said.

[1] http://www.charlotteobserver.com/news/politics-government/article9243218.html