A lot of high-level officials didn’t want the Senate ever to investigate the CIA’s post-9/11 program of torturing captives suspected of terrorist-related activities. They did their utmost to keep it from happening and dragged their feet—to state it generously—after the Senate Select Committee on Intelligence (SSCI) got the investigation underway.
Since the 500-page summary of the 6,700-page report was finished in December 2014, they have done what they can to make sure the public never sees the complete document with its details about what the CIA and its advocates euphemize as “enhanced interrogation.”
But as Michael Isikoff of Yahoo News reported Monday, the CIA inspector general’s office—the spy agency’s internal watchdog—has acknowledged it “mistakenly” destroyed its only computer disk copy of the torture report at the same time the U.S. Justice Department was informing a federal judge that copies of the report were being preserved. Members of the SSCI, now chaired by Republican Sen. Richard Burr, were informed of the destruction of the disk last summer. The public wasn’t told:
Although other copies of the report exist, the erasure of the controversial document by the CIA office charged with policing agency conduct has alarmed the U.S. senator who oversaw the torture investigation and reignited a behind-the-scenes battle over whether the full unabridged report should ever be released, according to multiple intelligence community sources familiar with the incident.
The deletion of the document has been portrayed by agency officials to Senate investigators as an “inadvertent” foul-up by the inspector general. In what one intelligence community source described as a series of errors straight “out of the Keystone Cops,” CIA inspector general officials deleted an uploaded computer file with the report and then accidentally destroyed a disk that also contained the document, filled with thousands of secret files about the CIA’s use of “enhanced” interrogation methods.
“It’s breathtaking that this could have happened, especially in the inspector general’s office — they’re the ones that are supposed to be providing accountability within the agency itself,” said Douglas Cox, a City University of New York School of Law professor who specializes in tracking the preservation of federal records. “It makes you wonder what was going on over there?”
It most certainly does make one wonder. It may give some people comfort to hear that the agency acted like Keystone Cops. But, that image of incompetence also can provide cover for when wrongful CIA actions are revealed. Sloppiness may, in fact, be what happened in these instances, but the agency’s record doesn’t provide much confidence in that assessment—because it’s not the first time material has vanished from the CIA’s file.
Marcy Wheeler—the intelligence-focused blogger known as emptywheel—posted a list of disappeared material related to torture Thursday:
• Before May 2003: 15 of 92 torture tapes erased or damaged • Early 2003: Dunlavey’s paper trail “lost” • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed • November 8-9, 2005: 92 torture tapes destroyed • July 2007 (probably): 10 documents from OLC SCIF disappear • December 19, 2007—CIA stealing back copies of cables implicating the President from SSCI servers • Someone modifying one of the black sites at which the 9/11 defendants were tortured, with Gitmo approval.
Last Friday, after Isikoff made inquiries of Feinstein, the California senator sent a letter to CIA Director John Brennan requesting that he “provide a new copy of the Study to the office of the CIA IG immediately. Your prompt response will allay my concern that this was more than an ‘accident,’” Feinstein wrote.
Meanwhile, chairman Burr has been seeking to collect any copies the SSCI has sent to federal agencies. He argues that these were Senate documents never meant to be sent to the executive branch and definitely never meant for public distribution. Here’s Isikoff again:
Early last year, Justice lawyers instructed federal agencies to keep their copies of the document under lock and key, unopened, lest the courts treat them as government records subject to the Freedom of Information Act. Weeks later, in an effort to head off a motion for “emergency relief” by the ACLU, a Justice Department lawyer told U.S. Judge James Boasberg that no copies of the report would be returned to Congress or destroyed; the government “can assure the Court that it will preserve the status quo” until the Freedom of Information Act [FOIA] lawsuit was resolved, wrote Vesper Mei, a senior counsel in the Justice Department’s civil division, in a February 2015 filing.
The Obama administration has argued that the report is not subject to the FOIA, and now a three-judge appeals court panel in a case brought by the American Civil Liberties Union has agreed. It seems inevitable that an appeal will be filed with the Supreme Court.
While Burr has been eager to get all copies of the torture report returned to SSCI control and locked away until everyone forgets it even exists, Feinstein and fellow committee member Sen. Pat Leahy are trying to get the chief of the National Archives to declare the torture report a “federal record” that must be preserved under the Federal Records Act. Whether that would make it subject to FOIA requests would no doubt only be resolved in the courts.
Whatever happens in this regard, expect it to be a long, long time before the public gets to see the full report—if ever.