DOJ’s perplexing motion for reconsideration of Judge Lamberth’s retention order re: the SSCI Torture Report

Last month, District Judge Royce Lamberth entered an order in the habeas case of Abd al-Rahim al-Nashiri, requiring the Executive branch defendants to retain a copy of the Senate Select Committee on Intelligence’s torture report, and to deposit a copy of the Report with the court’s information security officer (CISO).

The reason for the order was fairly straightforward:  The court of appeals had already determined, in a separate FOIA case brought by the ACLU, that the Report is a congressional document subject to control by the SSCI; and the Chair of that Committee, Sen. Burr, wrote to the President to “request that all copies of the full final report in the possession of the Executive Branch be returned immediately to the committee.”  The prospect of such an inter-branch reversion naturally concerned al-Nashiri, who claims that the Report is germane to his habeas proceeding; al-Nashiri does not want the Executive branch to dispose of all its copies of the Report–turn them over to the SSCI–before the court can determine whether it should be produced in discovery.  Judge Lamberth’s retention order ensures that the Report will be available to counsel and the court, if necessary, in the habeas litigation.

Yesterday, DOJ filed a motion for reconsideration with Judge Lamberth.  It’s a very strange filing, in that the Department’s two rationales appear to be in direct conflict with one another.

DOJ’s lede pitch is that “intervening facts have rendered these [retention] provisions [of Judge Lamberth’s order] unnecessary.”  Specifically, President Obama has already ensured that the Report will remain available within the Executive branch.  As the Counsel to the President recently explained to Senator Burr (see Exhibit 2 to the reconsideration motion, page 23 of the pdf), the President has transmitted his copy of the Report to the Archivist as a “presidential record” that the Archives must keep.  Thus, “the study will be preserved under the Presidential Records Act.”  Accordingly, argues DOJ, there’s nothing for al-Nashiri and Judge Lamberth to worry about in terms of access to the Report if it is germane to the habeas case, because the Executive is not turning over all its copies of the Report to Congress.  As the motion explains:

This action by the President means that the Report’s continued existence is no longer (if it ever was) “contingent on political vicissitudes.”  See Reply Br. at 2-3.  Even were the Executive to return its other copies to the SSCI and then the SSCI were to destroy all copies (including, presumably, the original), a highly unlikely scenario, a copy of the SSCI Report would still be preserved in the National Archives pursuant to the Presidential Records Act.

If that is correct–and it appears to be–then perhaps Judge Lamberth’s preservation order is a bit superfluous.  OK, but in that case, what’s the reason for DOJ’s motion for reconsideration of that order?  If the Archivist has the Report anyway, as DOJ stresses, and it would be produced in the habeas proceeding if necessary, then why is there any harm in requiring the Executive to retain another copy, and to submit a copy to the CISO, during the pendency of the habeas case?  DOJ asserts that the order will produce “undue burdens”–but what are they?

According to the DOJ motion, it is important in general for the Executive branch to respect Congress’s clearly expressed intent to control the legislative documents it shares with the Executive branch, and thereby avoid “inadvertently chilling the information exchange vital to Congress’s oversight functions.”  The retention order, writes DOJ, would be inconsistent with Senator Burr’s request that the Executive branch return to the SSCI all copies of the Report in its possession, and thus would not respect Congress’s wishes.  Accordingly, “further dissemination of the Report by the Executive, even under court order, would improperly burden the relations between the Executive and Legislative branches” and thus would “discourage the flow of information between the two coordinate branches of government.”

It’s not hard to see the inconsistency here, right?

The President has already rebuffed Senator Burr’s request, at least in part, by securing a copy of the Report in the Archives, where Congress cannot control it.  Moreover, as the attachments to the DOJ motion explain, the CIA has retained a copy of the Report pending the conclusion of the FOIA case that the ACLU has brought against that agency (currently pending before the Supreme Court–the ACLU has filed a petition for certiorari); and the Department of Defense is retaining its copies of the Report, too, during discovery proceedings in the 9/11 military commissions case.

If those three or four copies of the Report are thus remaining within the possession of the Executive branch for other legal purposes (i.e., FOIA proceedings; the 9/11 trial; and the Presidential Records Act), how is the Executive’s retention of yet another copy, and retention of a copy by the CISO, for habeas proceedings any different?  The Executive branch is already making several exceptions to its policy of honoring Senator Burr’s request to return all copies of the Report to the SSCI.  What’s one more?

The motion for reconsideration does not explain this striking–and apparently inexplicable–incongruity.*

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* DOJ also argues that the Report is not likely to be relevant to Nashiri’s habeas claim, because it won’t bear upon whether he is a member of al Qaeda–and thus lawfully detained–or on the lawfulness of his current conditions of confinement at GTMO.  It seems to me that’s probably right–but, if so, there’s even less explanation for DOJ’s motion to reconsider, because there can’t be much harm in the Report sitting in the CISO’s vault until such time as the court determines that it’s not relevant to the habeas case.

 

Image: Sen. Dianne Feinstein (D-CA) on Dec. 9, 2014 on the date of the release of the public SSCI report – Getty Images 

About the Author(s)

Marty Lederman

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