The Obama administration is resisting a federal judge’s order for a rare copy of the so-called Torture Report, saying the damning Senate study of the CIA’s secret post- 9/11 prison network is not the government’s to give the court.
Judge Royce Lamberth on Dec. 28 ordered the Justice Department to deliver a copy of the report to his court for safekeeping. He said it would be preserved at a top-secret storage facility maintained by the U.S. District Court at 333 Constitution Ave. in Washington, D.C.
But Justice Department attorneys wrote in a 16-page filing on Friday that delivery of a government copy of the Senate Select Committee on Intelligence document would “unduly interfere ... with the larger oversight relationship between the Senate Committee and the CIA.”
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The filing also argues that there’s no risk of the 6,963-page Senate Intelligence Committee report disappearing forever because President Barack Obama recently added his classified copy to his presidential archives. Obama declined to use his authority to declassify it, meaning the earliest it could become public is in 2028.
American lawyers for a Guantánamo captive, Abd al Rahim al Nashiri, turned to the civilian, federal court to preserve the report after a military tribunal judge wouldn’t do it. The Saudi man is accused of orchestrating al-Qaida’s USS Cole bombing that killed 17 U.S. sailors, and his lawyers they want to use the report of his waterboarding and other abuse in CIA custody to spare his execution.
A 500-page executive summary has been mostly declassified, offering insights into the spy agency’s Rendition, Detention and Interrogation program. But the full study is believed to have lurid details of detainees kept naked, deprived of food and sleep, rectally abused, waterboarded and shackled in so-called stress positions. In some instances, the summary says, the mistreatment was not approved by agency headquarters. But in other instances, field agents opposed the use of some of the “enhanced interrogation techniques” and were overruled by their headquarters.
At issue is an effort by Senate Intelligence Committee chairman Sen. Richard Burr, R-North Carolina, to recall all copies of the report from the Obama administration — including the FBI, Pentagon and CIA.
The committee created it under the leadership of Democrat Sen. Dianne Feinstein, who distributed a few copies, saying “the full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to make sure that this experience is never repeated.”
The Justice Department challenged Lamberth’s authority to keep a copy. It noted that an appellate court has already ruled the report is as a legislative work product, not subject to release under the Freedom of Information Act. The American Civil Liberties Union sued for a government copy. It is now asking the U.S. Supreme Court to decide.
The Justice Department lawyers suggested that Lambert should do something similar to the judge in Guantánamo’s five-man 9/11 conspiracy case. Army Col. James L. Pohl ordered the Pentagon to preserve a copy, but did not require them to give it to him.
The Justice Department filing also said the lawyers might appeal if Lamberth does not relent.
“There simply is no risk that every copy of the SSCI Report in the possession of the Executive Branch will be destroyed,” it said, adding that “information underlying the Report is subject to a long-standing preservation directive by the CIA.”
The Justice Department furnished a declaration by the departing CIA Director John Brennan. In it, he described a top secret spy agency database called RDINet, for the Rendition, Detention and Interrogation Program that President George W. Bush authorized after the Sept. 11 attacks and Obama ordered dismantled when he took office.
The database contains million of “highly classified documents” the Senate committee used for its study, Brennan wrote — emails, memos, information about intelligence sources and methods.
Lamberth issued the two-page order in the mostly dormant federal court challenge of the Guantánamo detention of Nashiri, 51. The Saudi was waterboarded and rectally abused during his 2002-2006 spy agency captivity. He is in pretrial hearings as the alleged architect of al-Qaida’s Oct. 12, 2000, USS Cole bombing off Yemen that killed 17 U.S. sailors.
But the Justice Department lawyers also argued that a federal judge essentially had no right to review Nashiri’s past treatment in U.S. custody, only his current circumstances at Guantánamo through his habeas corpus petition.
Lamberth also ordered the government to “preserve and maintain all evidence, documents and information, without limitation, now or ever in the [U.S. government’s] possession, control or custody, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch” since Sept. 11, 2001.
The Justice Department filing called that overreaching. They sought a limitation on the preservation order to only apply to captives at the U.S. Navy base at Guantánamo — and not federal prisoners.
Lamberth, a Texan, has served on the federal bench for nearly 30 years. He was appointed by President Ronald Reagan, and previously practiced law in the U.S. Army, notably during the Vietnam War, and as a civilian at the Pentagon.
Justice Department attorneys opposing the order had earlier argued that such a preservation order was beyond the scope of an unlawful detention challenge, especially since the federal courts have mostly stayed out of ongoing military commissions prosecutions.
Under war court reforms by Congress, a captive would first have to be convicted, sentenced and have his case reviewed at the Pentagon before a federal court would examine a case. Even then, the U.S. Court of Appeals for the District of Columbia, more senior than Lamberth’s U.S. District Court, would get the review.