Status of CIA Detention and Interrogation Program Declassification (updated)

A few weeks ago I posted about three contexts in which the government is engaged in declassification efforts concerning the CIA’s former detention and interrogation program.  The second of those contexts is FOIA litigation in which the plaintiffs–the ACLU in one case, Jason Leopold in two others–are seeking disclosure of (i) the executive summary, and findings and conclusions, of the Senate Select Committee on Intelligence (SSCI)’s report on the CIA program; (ii) the CIA’s memorandum to the SSCI, responding to the initial draft of the SSCI report; and (iii) the CIA’s internal report, the so-called “Panetta Report,” on the CIA program.  Judge Boasberg ordered the CIA to submit by today a proposed schedule for its processing, including declassification, of these documents.

The CIA filed status reports in all three cases today–in No. 13-1324 (Jason Leopold), in No. 13-1380 (ACLU), and in No. 14-48 (also Leopold).  This passage from the status report in No. 13-1324 is representative:

“The Executive Branch is continuing to conduct an expeditious declassification review of the executive summary, findings, and conclusions of the SSCI Report. The line-by-line review of the over 500 pages of highly classified material is a labor-intensive process, and the CIA and other agencies have already devoted thousands of person-hours to this effort. . . .  [B]ased on the current status of the declassification process, as well as the Agency’s expectations as to the time for coordination with other agencies, implementation of security measures to ensure the safety of U.S. personnel and facilities overseas, and submission of the declassified version to SSCI, the CIA anticipates that the declassification process for the updated version of the executive summary of the SSCI Report (the version submitted for declassification by SSCI on April 7, 2014) and various documents related thereto will be completed no later than August 29, 2014.  The CIA notes that it does not control when the updated version of the executive summary of the SSCI Report, once declassified, will be publicly released by the SSCI.”

As I understand the CIA’s status reports and earlier filings, the declassification process of all three documents will be completed no later than ten weeks from today, at the start of the Labor Day weekend.  At that point, presumably the CIA will be able to disclose the declassified versions of the second and third documents–the CIA’s response to the SSCI and the “Panetta Report”–to the plaintiffs in the FOIA litigation; and it will be the prerogative of the SSCI itself to decide whether to make public its own report executive summary and findings and conclusions (something the Committee has already voted to do).

In the meantime, Senator Feinstein, Chair of the SSCI, has stated that the Director of National Intelligence has assured her that the declassification of the SSCI’s executive summary and findings and conclusions will be completed by early next month, ideally before July 4.  If this is still the case, it is not necessarily inconsistent with the CIA’s status reports filed today.  Presumably the Executive branch will be finished with its declassification review of the SSCI’s documents before it turns to the two ancillary documents (the CIA response and the Panetta Report), and will then deliver the declassified versions of the executive summary and findings and conclusions to the SSCI, which could decide to publish them before August 29.  The period between early July and August 29 would also give the SSCI and the Executive branch eight weeks or so to negotiate over any possible disagreements about the scope of the declassification. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).