The ACLU on Thursday continued its legal fight for the release of the full report on the CIA's Bush-era torture program—a lengthy document detailing human rights abuses that the U.S. government wants suppressed.
The two sides presented their oral arguments at the U.S. Court of Appeals for the D.C. Circuit.
The executive summary of the report was released in December of 2014, with then-head of the Senate Intelligence Committee Democratic Sen. Dianne Feinstein sending copies to various federal agencies. The report showed that so-called "enhanced interrogation techniques" were not effective, that the CIA misled lawmakers and the public about the torture program, including its brutality. Center for Constitutional Rights attorney Baher Azmy said at the time that it "proves what we have been saying since 2006: that the CIA engaged in a sophisticated program of state-sanctioned torture, notable for its elaborate planning and ruthless application."
When Sen. Richard Burr (R-N.C.) became chair of the Senate Intelligence Committee in 2015, he demanded that copies of the full 6,900-page report report be "returned immediately" to the Senate, though the agencies are still holding them as the case continues.
The ACLU's argument is that the report should be subject to the Freedom of Information Act (FOIA). Ashley Gorski, Staff Attorney, ACLU National Security Project, explained in a blog post Wednesday:
In our suit, the government argues that the torture report is controlled by Congress and thus isn’t subject to FOIA. (The law applies only to “agency records,” not congressional ones.) But under well-established law, there’s no question that the report is an agency record: Congress sent the document to several agencies and did not assert any intent to control it.
She added that "former Sen. John Rockefeller (D-W.Va.) further explained in an amicus brief in support of our case [that] the SSCI placed no limits on the agencies' use of the report and plainly intended to relinquish its control of the document."
But according to reporting on Thursday by The Hill, the full report is likely to remain blocked from the public's eyes:
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“The question is whether Congress gave up, absolutely, the authority that they had” over the report, Judge Harry Edwards said during Thursday’s oral arguments.
It “doesn’t look like” they did, Edwards said.
“If Congress has retained control, it retains control,” he added.
ACLU attorney Hina Shamsi, however, expressed optimism, telling U.S. News & World Report: "We continue to believe this is a document to which we and the public are entitled under the FOIA."
Gorski wrote: "With our core values hanging in the balance, now—perhaps more than ever—it is imperative that the Senate torture report see the light of day."
"Without a proper reckoning," Gorski added, "history may very well repeat itself."
Chief judge of the D.C. Circuit appeals court is Merrick Garland, President Obama's nominee for Supreme Court Justice. He did not hear the ease as scheduled. Instead, Judge Edwards heard the arguments along with Judge Sri Srinivasan, while David Tatel will help decide the outcome after listening to a recording of the proceedings, U.S. News reports.