Nika Schoonover
Courthouse News
Originally posted 5 Aug 24
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.”
Here are some thoughts:
A recent decision by the Second Circuit panel has found that a report produced by Congress on the CIA's post-9/11 detention and interrogation program is not covered under the federal Freedom of Information Act (FOIA). The report, which details the CIA's use of enhanced interrogation techniques such as waterboarding and sleep deprivation, was generated by the Senate Select Committee on Intelligence in the aftermath of the 9/11 attacks.
The court's ruling centered on the issue of control and ownership of the report, citing a previous decision in Behar v. U.S. Department of Homeland Security. The panel found that Congress had manifested a clear intent to control the report at the time of its creation, and that subsequent actions did not vitiate this intent.
The decision affirms a lower court's dismissal of a complaint filed by Douglas Cox, a law professor who had submitted FOIA requests to various federal agencies for access to the report. Cox argued that the report should be subject to FOIA disclosure, but the court found that he had failed to address a relevant precedent in his oral arguments.
Legal experts have noted that the exclusion of the document from FOIA is a matter of Congress' intent to control the document, highlighting the lack of transparency in congressional records. The decision underscores the limitations of FOIA in accessing sensitive information, particularly when it comes to congressional records.
