White House Counsel Neil Eggleston’s recent announcement that President Barack Obama will archive at least one copy of the full Senate torture report under the Presidential Records Act is a welcome and important development. But given President-elect Donald Trump’s open advocacy of torture, it is not sufficient. First, the report will remain classified for at least 12 years. And as Eggleston stated in his letter to Congress, the White House’s decision “has no bearing” on federal agencies’ treatment of the study. It remains crucial that agency copies also be preserved, opened, and made accessible to officials who may be asked to restart a torture program. Such a step is two years overdue, and it is one that Obama could order to begin with a simple one-paragraph letter.
Two years ago, Sen. Dianne Feinstein (D-Calif.) sent eight copies of the full classified Senate study of the CIA’s detention and interrogation program to Obama, the Attorney General, the secretaries of State and Defense, the directors of the FBI and the CIA, the CIA Inspector General, and the Director of National Intelligence. Feinstein asked that the full report “be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate” to ensure against any return to torture. Instead, the Justice Department instructed everyone to lock up their unopened and unread copies.
A month after Feinstein distributed the report, Sen. Richard Burr (R-N.C.), the new Republican chairman of the Senate Select Committee on Intelligence (SSCI), asked for all copies to be returned, claiming its transmission was improper. But oversight committees are permitted to transmit their reports to the executive branch, and new committee leadership cannot recall those reports just because they dislike their conclusions. The Senate Parliamentarian rejected Burr’s claim that the transmission of the report was improper, and the D.C. Circuit Court of Appeals has stated (p. 15) that Burr’s letter was entitled to “no weight.” The White House’s decision to archive the president’s copy suggests the Obama administration agrees that the transmission of the report was lawful and valid.
For nearly two years, Senator Feinstein has repeatedly implored agencies to open and read the 6,700-page report, but her calls have gone ignored. Most executive branch copies of the full study remain in discs stored in locked safes. The CIA Inspector General’s copy has been “inadvertently” destroyed, and CIA Director John Brennan has disregarded requests to replace it.
Last week it emerged that the existence of the Defense Department’s copy is also in doubt. The chief prosecutor at the Guantanamo military commissions, Army Brig. Gen. Mark Martins, repeatedly refused to answer direct questions from the military judge about whether the Department of Defense still had its copy of the report. The Defense Department had acknowledged receipt of the full report in a court declaration in January 2015, and the U.S. government told both a federal court and the military commission judge that it would be preserved.
Nonetheless, asked whether DoD had kept its word and retained its copy, Martins repeatedly evaded the question, and finally replied, “I’m not prepared to answer the question. I can determine if there’s a way to find that information.” After the hearing, the military judge ordered the prosecution to answer the question in writing by December 16.
It’s not clear whether the prosecution refused to acknowledge the document was in the Defense Department’s possession in order to avoid producing it to the court, or whether DoD’s copy has been destroyed. In either case, Obama could remedy the situation by writing a letter to executive agencies instructing them to open the report and begin reviewing it for lessons learned, and replace any copies that were destroyed. The administration could also withdraw its opposition to detainees’ pending motions seeking preservation of the report as a court record in both the military commissions and habeas corpus cases. None of these steps would do as much as public release of the report to guard against a recurrence of torture, but they would all do far more than moving a single copy of the report to a SCIF in Chicago.