DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report

DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report

from the opacity-with-multiple-judicial-blessings dept

Legal battles have been fought for most of a decade now over access to the full CIA Torture Report. A limited release at the tail end of 2014 — the 525-page, heavily redacted “Executive Summary” — is all the general public has been given access to.

What was in the summary was horrifying enough. But the CIA has managed to keep the full report away from the public, utilizing rulings that have declared it a “congressional record.” Congress is exempt from FOIA law, which means as long as this report is considered something belonging 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 that an opportunistic suit targeting House Intelligence Committee subpoenas would create a wedge that would make Congress responsive to requests for documents. FOIA was out of the question, so Judicial Watch went to work with a “common law access” theory to elude Congress’ omnipresent FOIA exemption.

That case ended up going with nowhere, ultimately dismissed by the DC Circuit Appeals Court in June 2021. However, that ruling did say 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 did not automatically create a presumed right to access congressional records. However, as the concurrence pointed out, this does not mean the right to access does not exist. Common law access under this legal theory should be subject to a balancing test that weighs the public’s concerns against congressional concerns and decides whether a record might be accessible via a common law claim.

That ruling prompted journalist Shawn Musgrave to make his own request for the CIA Torture Report, utilizing the common law access theory discussing in the Appeals Court ruling. Unfortunately, this attempt has met its first road block at the district level, as Sarah Wire reports for the LA Times.

District of Columbia District Court Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common-law right of public access” because while it was part of the committee’s investigation, it did not make recommendations or propose legislation.

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

“The Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure,” Howell said in her opinion dismissing the case.

The ruling [PDF] (which the LA Times inexplicably failed to post with its report) wraps up with Judge Howell deciding on behalf of the public that the public has already seen plenty and has no desire to access the full report.

As plaintiff acknowledges, see Pl.’s Mem. at 20, the Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure. Plaintiff also unpersuasively argues that the already-disclosed 500 pages of the Report are insufficient to bolster the public’s interest in reviewing more.

The DC court says no more Torture Report for you lot. You’ve got all the Torture Report you need and/or deserve.

This will, of course, be appealed. The DC Appeals Court was the court that first recognized this right to common law access. And there’s always a chance its application of the balancing test will side with the public, here represented by Shawn Musgrave. But, for now, another quest for the full report has dead-ended.

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

DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report