DC court shuts down access to common law, says Congress doesn’t need to release full CIA torture report

from opacity-to-multiple-judicial-blessings department

Legal battles have been fought for the better part of a decade now over access to the full CIA torture report. A limited release at the end of 2014 – the 525-page, heavily redacted “executive summary” – is all the general public has had access to.

What was in the summary was pretty awful. But the CIA managed to keep the full report out of the public eye, using rulings that declared it a “congressional record.” Congress is FOIA-exempt, which means that as long as this report is deemed to belong to Congress, FOIA requesters have no legal means to force its release.

Not that they haven’t tried. Judicial Watch sued Rep. Adam Schiff, hoping an opportunistic lawsuit targeting House Intelligence Committee subpoenas would drive a wedge that would make Congress reactive to requests for documents. FOIA was out of the question, so Judicial Watch got to work with a “common law access” theory to evade Congress’s ubiquitous FOIA exemption.

This case ended up going nowhere, eventually being dismissed by the DC Circuit Court of Appeals in June 2021. However, this decision said some interesting things about common law access and how it could theoretically be used to force Congress to hand over certain documents.

The ruling said the speech and debate clause had no automatically create a presumptive right of access to the archives of Congress. However, as the agreement pointed out, this does not mean that the right of access does not exist. Common law access under this legal theory should be subject to a balancing test that weighs the concerns of the public against the concerns of Congress and decides whether a document can be accessed via a claim at common law.

This decision prompted journalist Shawn Musgrave to make one’s own request for the CIA torture report, using the common law access theory discussed in the Court of Appeals decision. Unfortunately, this attempt met its first roadblock at the district level, as Sarah Wire reports for the LA Times.

District Court Judge for the District of Columbia, Beryl Howell, ruled that the report “is not considered a public document subject to the common law right of public access” because, although it was part of committee’s investigation, it did not make recommendations or propose legislation.

The government’s interest in keeping the information secret outweighs the public interest, Howell wrote.

“The report contains highly classified information about CIA detention and interrogation policies and procedures that would jeopardize national security if released, far exceeding the public interest in disclosure,” Howell said in his statement. opinion dismissing the case.

The decision [PDF] (which the LA Times inexplicably failed to publish with its report) ends with Judge Howell deciding on behalf of the public that the public has already seen a lot and has no desire to access the full report.

As the Applicant acknowledges, see Pl.’s Mem. at 20, the report contains highly classified information about CIA detention and interrogation policies and procedures that would jeopardize national security if released, far outweighing the public interest in disclosure. The plaintiff also argues unconvincingly that the already leaked 500 pages of the report are insufficient to bolster public interest in examining more.

The DC court says there is no longer a torture report for you. You have all the torture report you need and/or deserve.

This will of course be subject to appeal. The DC Court of Appeals was the court that first recognized this common law right of access. And there’s always a chance that his application of the balance test will be on the public side, represented here by Shawn Musgrave. But, for now, another quest for the full report is no way out.

Filed Under: cia, cia torture report, common law access, freedom of information, shawn musgrave, torture report

Comments are closed.