Senate doesn’t have to release torture report, judge rules

WASHINGTON — The U.S. Senate does not have to release its full report detailing the Central Intelligence Agency’s interrogation and detention program following the Sept. 11, 2001, attacks, a federal judge ruled Thursday.

Journalist Shawn Musgrave sought the 6,700-page document, citing a “common law right of access” to public records. The legal argument is conceptually similar to the Freedom of Information Act. Congress is not subject to the Freedom of Information Act, and the U.S. Court of Appeals for the District of Columbia Circuit ruled in 2016 that the report was a congressional record. Musgrave’s legal argument was made in an attempt to get around that limitation.

Common law right of access is decided in the District of Columbia Circuit based on a two-part test that requires a determination that the document is a public record and then balancing the government’s interest in keeping the document secret against the public’s interest in disclosure.

District Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common law right of public access” because although it was part of the committee’s investigation, it was aimed at gathering information and did not make recommendations or propose legislation. Therefore, she said, it falls under the protections of the 1st Amendment’s speech and debate clause protecting legislators’ speech while crafting 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.

Musgrave’s attorney, Kel McClanahan, said they plan to appeal the decision.

“While we’re obviously disappointed with the results, we recognized from the outset that this would be an uphill battle,” he said. “We understand that this is a thorny issue and will ultimately need to be decided by a superior court.”

McClanahan disagreed with Howell’s assertion that the report was a preliminary and advisory step to inform future legislation.

The committee crafted the report to “preserve information and inform people about what had happened. It is not deliberative; it does not fall under the speech and debate clause protection,” he said.

Former Senate Intelligence Committee Chairwoman Sen. Dianne Feinstein (D-Calif.) released part of the report in 2014 over the objections of the intelligence community, making public a 500-page executive summary that said the CIA misled the White House and the public about torture of detainees in Afghanistan. She favored releasing the full report, but much of the more than remaining 6,000 pages is classified.