Archivist of the United States David S. Ferriero, left, and Sen. Richard Burr, chairman of the Senate Intelligence Committee. (Photos: Paul Morigi/WireImage; Jacquelyn Martin/AP)
A coalition of advocacy and transparency groups is asking the National Archives to take immediate steps to ensure the preservation of a Senate torture report in light of the disclosure by Yahoo News that the CIA inspector general’s office mistakenly destroyed its copy of the document.
The groups warned in a letter to David S. Ferriero, archivist of the United States, that the full unabridged report is in danger of disappearing from the public record entirely. A U.S Court of Appeals panel ruled last week that, as a congressional document, it is not subject to the Freedom of Information Act, making it less likely the public will ever get to see it.
Sen. Richard Burr, chairman of the Senate Intelligence Committee, who opposes any public dissemination of the report, said that, in light of the ruling, he “anticipates” the CIA and other U.S. intelligence and law enforcement agencies with remaining copies of the report will return them to the Senate Intelligence Committee.
“These developments seem to make it clear that there is a serious risk to the report’s preservation,” Patrice McDermott, executive director of OpenTheGovernment.org, a coalition of groups that advocate for more public disclosure of government secrets, wrote to Ferriero. McDermott said an earlier request by the groups for the National Archives to intervene is now “more urgent.”
As reported in Yahoo News Monday, the office of the CIA inspector general, the spy agency’s internal watchdog, last year “inadvertently” destroyed a computer disk containing an unabridged copy of the report, and also deleted an uploaded version of the document from its internal computer system.
CIA officials have contended the destruction doesn’t matter because the agency still has another unopened computer disk with the document in a locked vault. “We have retained a copy of the report pending the resolution of the litigation,” the agency’s chief spokesman, Dean Boyd, said Friday, repeating the agency’s position.
A senior official at the National Archives, which has authority to ensure the preservation of government records, said in response to the letter that the Archives will make no decision about the request until the current Freedom of Information Act (FOIA) lawsuit is resolved. (The ACLU, which brought the FOIA lawsuit for disclosure of the report, says it is weighing its options for appeal.) “We’re tracking the litigation and correspondence relating to the destruction,” said the official, who asked not to be identified by name. “We’re taking no position and no action pending the resolution of this litigation.”
The 6,700-page report, the product of years of work by the Senate Intelligence Committee, contains meticulous details, including original CIA cables and memos, on the agency’s use of waterboarding, sleep deprivation and other aggressive interrogation methods at “black site” prisons overseas in the aftermath of the Sept. 11 terror attacks. A 500-page executive summary was released in December 2014 by Democratic Sen. Dianne Feinstein, the committee’s outgoing chair. It concluded that the CIA’s interrogations after Sept. 11 were far more brutal than the agency has publicly acknowledged and produced often unreliable intelligence. The findings drew sharp dissents from Republicans on the panel and from four former CIA directors.
The bitter dispute over the findings has now spawned an equally contentious battle over whether the full document should be publicly disclosed. In her closing days as chair, in December 2014, Feinstein had sent computer disks with the full report to the White House, the CIA and five other U.S. intelligence and law enforcement agencies asking that they review its contents to make sure that the conduct described in the document is “never repeated.” (The CIA received two copies, one for the inspector general and one for the agency itself.)
But when Burr took over the committee, after Republicans regained the Senate majority in January 2015, he asked that those disks be sent back. Instead, after the ACLU filed its lawsuit, the Justice Department asked federal agencies not to open the computer disks — lest they be construed as a “federal record” that is subject to FOIA — and to preserve their copies pending the outcome of the litigation.
Even if the report is not subject to FOIA, the advocacy and transparency groups argue, it still must be preserved under the Federal Records Act, a 1950 law that requires federal agencies to maintain government records (since expanded to include electronic records) unless there is approval from the National Archives to dispose of them. The law generally results in administrative penalties against violators, unless there is evidence that the destruction was intentional, in which case the Archives can refer the issue to the Justice Department.
The groups note that the court of appeals panel, while finding that the document was a congressional record not subject to FOIA, also wrote that federal agencies have “some discretion to use the full report for internal purposes” — language that appears to open the door for it to become a government record.
In addition, Douglas Cox, a City University of New York law professor who tracks the disposition of federal records, said the CIA inspector general’s actions may have already made the document a federal record. In an email to the Archives this week, which he shared with a reporter, he noted that the inspector general essentially destroyed two copies of the report — the computer disk and the uploaded copy on its computer system. The existence of the uploaded copy, however brief, was “significant,” Cox contended, because the creation of that version may have constituted an electronic record, which is covered by the Federal Records Act.