MANHATTAN (CN) — A report produced by Congress on the CIA’s post-9/11 detention and interrogation program is not covered by the federal freedom of information law, a Second Circuit panel found Monday.
In the aftermath of the terrorist attacks of September 11, 2001, the Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the CIA. The committee then transmitted the report to various agencies covered under the federal Freedom of Information Act.
In late 2014, the committee produced only an executive summary of its findings which revealed the CIA’s interrogation tactics were more gruesome and ineffective than previously acknowledged. The heavily redacted report showed that interrogations included waterboarding, sleep deprivation and sexual humiliation such as rectal feeding.
In the Second Circuit panel’s Monday ruling, the court cited another Second Circuit decision from 2022, Behar v. U.S. Department of Homeland Security, where the court determined that an entity not covered by FOIA, such as Congress, would have to show that it manifested a clear control of the documents, and that the receiving agency is not free to “use and dispose of the documents as it sees fit.”
“The committee manifested a clear intent to control the report at the time of its creation, and because the committee’s subsequent acts did not vitiate the intent, the report constitutes a congressional record not subject to FOIA,” U.S. Circuit Judge William J. Nardini, a Donald Trump appointee, wrote in the panel’s decision.
In 2016, Douglas Cox, a law professor at the City University of New York, submitted FOIA requests to the various federal agencies that received the report, but was denied on grounds that the report is a congressional record rather than an agency record and is not subject to FOIA disclosure.
Cox later filed a complaint against the federal agencies in 2017, after a New York Times story reported that the Trump administration had been returning copies of the full “torture” report — which revealed the agency’s gruesome interrogation tactics — to Congress. His claim was dismissed by a federal judge in Brooklyn, who agreed with the agencies and granted summary judgment in their favor.
Cox argued that the lower courts wrongfully applied a test from Behar to determine if the report qualifies as an agency record, but the Second Circuit panel notes that Cox did not cite Behar during oral arguments in September 2023, despite the case being decided months earlier.
“When asked at oral argument why he did not address Behar from the outset, Cox explained that he thought that the case might be overturned, or otherwise altered,” the panel wrote.
The court emphasized that the possibility of a decision being overturned does not mean it shouldn’t be addressed.
“There is always a chance that a governing precedent might be vacated or overruled in the future,” the panel said. “But until it is, no matter the pendency of any petitions for rehearing or for writ of certiorari, a party must address such an opinion in its briefing.”
The panel also pointed to a June 2, 2009 letter Congress sent to the CIA, which proposed a series of “procedures and understandings” to govern documents received from the agency.
The letter, the panel added, showed that Congress had a “clear intent” to control the draft and final versions of the report.
Specifically, the letter provides that “any documents generated on the network drive … as well as any other notes, documents, draft and final recommendations, reports or other materials generated by committee staff or members, are the property of the committee,” the panel said.
Mark Fenster, a law professor at the University of Florida, said that the exclusion of the document from FOIA is a matter of Congress’ intent to control the document.
“It’s really frustrating for everyone that Congress doesn’t apply the same transparency rules it applies to the executive branch to itself,” Fenster told Courthouse News. “Which I think is foolish and unfortunate, but it is legislative prerogative to do that.”
Fenster added that the law does not provide for challenges to FOIA restrictions of this nature to be successful.
“This is an important history we need to find out about, exactly what happened in the Bush administration,” Fenster said, pointing to the attacks on September 11, 2001. “But as a matter of law, as FOIA has been developed, it has not been strong enough for the Cox’s of the world to prevail in cases like this.”
U.S. Circuit Judges Denny Chin, a Barack Obama appointee, and Alison Nathan, a Joe Biden appointee, also joined in the decision.
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