May 15, 2014–You read it here first (again). In earlier coverage of how the CIA would handle the investigative report on its torture and rendition programs that was done by the Senate Select Committee on Intelligence (SSCI), we predicted the agency would drag its heels on its declassification review. Actually it’s wasn’t at all hard to predict. Secrecy is a passion for the CIA. But at least give them points for how cleverly they play the system. Listen to this one–
Watching this whole travesty unfold, the American Civil Liberties Union quite logically filed a Freedom of Information Act request asking for release of the Senate intelligence committee report and Langley’s original response to it. They filed with the Justice Department, probably to try and avoid some of the CIA’s delaying tactics. That was in November of last year. Recognizing that the department would simply sit on a simple FOIA request, the ACLU went straight to court and made it a lawsuit. The suit aims at CIA. Not long afterwards it became known that CIA and the intelligence committee were fighting each other over who had betrayed whom–that’s the CIA spying on the SSCI versus senators’ purloined document argument. The ACLU promptly decided to incorporate that document, the “Panetta Report,” in its FOIA lawsuit, and did so on January 27 of this year.
In the meantime the court was compelling the Justice to get through the preliminary steps of this action. The CIA claimed jurisdiction, or not, and Justice said it lacked jurisdiction–this was a “congressional document.” A few days before the ACLU action, government lawyers agreed to a schedule for deciding whether these reports are the kinds of “records” the CIA can declassify. (The agency, too, wants this to be a “congressional” document, so it can toss the matter back to the SSCI, which is reluctant to declassify unilaterally, and originally asked CIA to review. If this sounds like a pinball in motion–it is.) Under the schedule, that was supposed to happen at the end of this month, pushed back a week upon inclusion of the Panetta Report.
As it happens, on April 3 the Senate committee, disgusted with the CIA’s delays, itself voted to release its report, but took the low road of sending it to Barack Obama for review–and the president kicked it back to Langley.
Lo and behold, on behalf of the CIA, the Justice Department today filed a motion to delay action on the FOIA request because the current version of the SSCI summary report has been amended based upon the objections the CIA made to the Senate committee and their joint conversations of how to handle the disputed issues in the report. Because the underlying document sought in the FOIA has been revised, the declassification process should be halted.
Got that? Congress asked the spy mavens to review its report. Langley dragged its feet and eventually came up with a refutation. Congress and CIA debated how to handle Langley’s objections. Responsibly, the senators considered what the CIA had to say, made some changes, inserted more text in other places to bolster its case. Now the CIA relies on the SSCI’s response to justify its attempt to avoid declassifying the report. Just for good measure, the CIA and White House have been swift to assert a necessity for third parties–other agencies, to include the Director of National Intelligence (Fearful Clapper, who never saw a program not worth lying about, or a fact not a dangerous national security leak) and, presumably, the State Department–to also certify the document. I can tell you, “equity,” the notion of third-party interest in documents, is among the problems most damaging to U.S. declassification efforts today. Langley is lining up its pins for an attempt at long-term stalling. Clever, huh?