The new Republican chairman of the Senate Intelligence Committee wants to make sure that a scathing 6,900-page report about the CIA's torture of terrorism suspects captured after 9/11 is never publicly released.
Senator Richard Burr asked the White House to return all copies of the document that were disseminated last month to executive branch officials by his predecessor, Senator Dianne Feinstein, according to a copy of a one-page letter [pdf below] Burr sent to President Barack Obama.
The purpose of Burr's unusual request for a mass recall was allegedly to prevent the document from being subject to release under the Freedom of Information Act (FOIA), according to US officials and congressional sources who said the issue is "sensitive," and who declined to discuss it on the record.
Burr's request is yet another twist in the Intelligence Committee's six-year study into the efficacy of the CIA's "detention and interrogation" program, and the integrity of the report drafted by the Democratic majority of the committee that concluded that the program did not produce a shred of valuable intelligence. The Intelligence Committee voted last month to release a 499-page declassified executive summary of the report. Burr was one of the committee members who voted in favor of releasing it. But he blasted it's findings. The fact recalling the report is now the first order of business for the new Intelligence Committee chairman who has oversight of the CIA underscores how fiercely partisan the issue is. It's also an example of Burr's steadfast support for the agency.
Additionally, Burr told the Huffington Post he intends to return copies of the CIA's own classified internal study about its interrogation program, commonly referred to as the "Panetta Review," which is currently locked away in a safe at the Hart Office Building. The Panetta Review is the document that has largely been at the center of the war of words between the CIA and Intelligence Committee. Former Democratic Senator Mark Udall described it as a "smoking gun" and said it matched the conclusions of the Intelligence Committee's own report on the torture program.
Last week, contrary to accusations leveled by the Senate last year, a 38-page report prepared by a CIA review board found that the CIA did not breach the computers of Senate Intelligence Committee staffers and spy on them while they were investigating the CIA's torture program. But the review board's report said Democratic Intelligence Committee staffers stole the Panetta Review and other documents.
In his January 14 letter to Obama, Burr, who was harshly critical of the torture report's findings and conclusions, said the full report Feinstein sent to the White House last month is a "highly classified and committee sensitive document" that "should not be entered into any Executive Branch system of records."
"I request that all copies of the full and final report in the possession of the Executive Branch be returned to the Committee," Burr wrote. "If an Executive Branch agency would like to review the full and final report, please have them contact the Committee and we will attempt to arrive at a satisfactory accommodation for such a request."
By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.
US officials and congressional sources said an unknown third party advised Burr to make the request. Burr's office did not respond to VICE News's questions about the matter. The CIA and White House declined to comment.
Feinstein responded to Burr by sending Obama a two-page letter on January 16, a copy of which was obtained by VICE News. She said she does not support her successor's request because executive branch officials need to have access to the full report so lessons can be learned and to "ensure that nothing like the CIA's detention and interrogation program from 2002 to 2008 can ever happen again."
"There was never any objection to providing the full, official report to the Executive Branch, consistent with appropriate limitations due to classification," Feinstein wrote. "I therefore disagree with Chairman Burr's analysis that the report should be considered 'Committee Sensitive' as that term is defined in the [Intelligence Committee's] Rules of Procedure." Under the rules, the disclosure of reports and other documents marked "committee sensitive" are stricter.
Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, said Burr is attempting to circumvent FOIA by claiming "ownership" of the report. He said Burr's actions "seem like a calculated effort to carve out an exclusion from FOIA. There is no other reason to even mention executive branch filing systems."
'Senator Burr's attempt to recall the report seems like a bid to thwart Congress's own Freedom of Information Act, which protects the rights of the American people to learn about their own government.'
For more than a year, I have been engaged in a FOIA lawsuit against the government that seeks access to both the Panetta Review and the full torture report's executive summary. While the committee already released the latter document, VICE News is still pursuing a less redacted copy of it. The American Civil Liberties Union (ACLU) filed a separate FOIA lawsuit for a copy of the Senate's full torture report and the Panetta Review.
Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.
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According to reports that surfaced after Obama's State of the Union address Tuesday night, Burr said he also intends to "return" the so-called Panetta Review to CIA. By doing so, he seems to be acknowledging that the document is indeed a "draft" and a "deliberative privileged" document that rightfully belongs to CIA. The move also seems to suggest that Senate Democrats wrongfully accessed the report, and that it too should not be released under FOIA.
CIA Director John Brennan previously asked Feinstein to return the Panetta Review, but she refused. She said during a 45-minute speech on the Senate floor last year that the Panetta Review was given to her committee by the CIA, and that "Congress does not recognize… claims of privilege when it comes to documents provided to Congress for our oversight duties."
The Panetta Review, according to people familiar with it, is made up of a series of weekly reports that total four to five pages each. A CIA attorney, in a declaration filed last month in VICE News's FOIA lawsuit, described it as "more than 40 draft documents relating to the CIA's former detention and interrogation program." She said the "top-secret" drafts were "intended to inform CIA leaders' decision-making by highlighting the most noteworthy information contained in the millions of pages of documents being made available to the [Intelligence Committee] in connection with its study" into the CIA torture program.
It's unclear if Burr will call for the destruction of the Panetta Review or actually return all physical copies in possession of the committee to CIA. In the CIA accountability review board report released last week, the agency said Senate Intelligence Committee staffers previously complied with requests to destroy certain documents that were accessed and copied without the proper authorization.
Even if the copies of the Panetta Review are destroyed, there are still copies of it at the CIA. The government said in court documents filed in connection with VICE News's FOIA case that those copies are being preserved.
Senator Ron Wyden, a Democratic member of the Intelligence Committee, believes that the Panetta Review will end up in CIA Director John Brennan's "shredder" if it is returned to CIA. He also said it would be "unprecedented and foolish" if the executive branch's copies were returned.
"Doing so would aid defenders of torture who are seeking to cover up the facts and rewrite the historical record," Wyden said in a statement Wednesday. "The CIA's leadership continues to double down on denials about the agency's history on torture, but their claims are contradicted by their [Panetta Review]. They were so concerned about the Intelligence Committee finding the Panetta Review that they even spied on Senate files to see if the committee had obtained it."
Christopher Anders, the ACLU's senior legislative counsel, said it appears that Burr is trying to cover up the CIA's "crimes."
"The full Senate torture report was given to Executive Branch agencies to be widely used to make sure that the federal government learns its lesson and never uses torture again," Anders said. "Senator Burr's attempt to recall the report seems like a bid to thwart Congress's own Freedom of Information Act, which protects the rights of the American people to learn about their own government. Americans should ask, if Senator Burr isn't going to serve his role in the Constitution's system of checks and balances, then why did he want to be chairman of the intelligence committee? This is a poor start to a chairmanship."
It appears that Feinstein and other Democrats on the intelligence committee wanted the full torture report to be publicly released, and that the committee, which did not have enough votes to support the release, may have been looking toward FOIA as a means to accomplish their goal. In a transmittal letter sent to Obama dated December 10, 2014 that accompanied a copy of the report, Feinstein wrote that "the full report should be made available within the CIA and other components of the executive branch for use as broadly as appropriate" and should be entered into the "Executive Branch systems of record."
Feinstein's letter is significant because it establishes that the torture report is no longer a congressional record. That's apparently what set off Burr and members of his staff, according to congressional staffers. The North Carolina Republican was upset that Feinstein distributed copies of the report without any input from him or his Republican colleagues on the committee. His letter to Obama suggests he was unaware that Feinstein distributed copies of the report to the executive branch officials — even though the transmittal letter she signed was posted on her website and a copy of it was made available to all Intelligence Committee members through the committee's "internal document system."
"It has recently come to my attention that on December 10, 2014, Senator Feinstein in her capacity as the Chairman of the US Senate Select Committee on Intelligence, provided a digital copy of the full and final report of the Committee's study of the Central Intelligence Agency's Detention and Interrogation Program (divided into three volumes and exceeding 6,700 pages) to you, the Director of National Intelligence, the Director of the Central Intelligence Agency (CIA), the Attorney General, the Secretary of Defense, the Secretary of State, the Director of the Federal Bureau of Investigation, and CIA Inspector General," Burr wrote. "You may recall that Senator [Saxby] Chambliss, the Vice Chairman of the Committee at that time, was not copied on that letter."
Feinstein said any implication that Chambliss or any another committee member did not have access to her December 10 transmittal letter is "simply false."
Feinstein's transmittal letter indicated that copies of the full torture report could be widely distributed to officials with the appropriate security clearance and a "need to know," raising the prospect that it could also be leaked. Sources familiar with the full report said it did not contain any markings stating that it was a congressional record.
Aftergood said Burr's attempt to retract the torture report is "totally unprecedented" and "actually quite bizarre."
"I don't think it will be possible to 'surgically remove' the report from the historical record," Aftergood said. "It is too deeply intertwined with other, non-congressional material. To begin with, all of the evidence on which the Senate report is based comes from executive branch files. That material is beyond Senator Burr's grasp, and it's not going away."
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