Congress ducks open-records law as judges reject plea to see torture report

The federal government doesn’t have to release the full post-9/11 torture report, an appeals court ruled Friday, saying that Congress remains beyond the scope of the Freedom of Information Act even when it shares its records with agencies that are subject to open-records laws.

Deemed the final word on the enhanced interrogation tactics used on suspected terrorist detainees, the 2014 torture report, written by the Senate intelligence committee, has been controversial from the start, including charges of CIA spying on the Senate and accusations of cover-ups.

While a 500-page executive summary has been released to the public, the full 6,000-page report hasn’t, though Congress circulated it among federal agencies.

The American Civil Liberties Union filed an open-records request for the whole report, arguing once Congress turned it over to the administration, it became subject to the FOIA.

But Congress carved itself out of FOIA, and the U.S. Court of Appeals for the D.C. Circuit ruled that even though lawmakers widely shared the full report within the executive branch, Capitol Hill retains control over the document, so it cannot be disclosed under FOIA.

“The Senate Committee’s intent to retain control of the Full Report is clear. The Full Report therefore remains a congressional document that is not subject to disclosure under FOIA,” Judge Harry T. Edwards wrote in the unanimous opinion for the three-judge panel.

The ACLU had argued that when Congress provided copies of the report to the administration in 2014, there were no new restrictions placed on it — and in fact Congress urged the administration to widely use and study the conclusions.

Judge Edwards, though, said the original 2009 agreement between the intelligence committee and the administration made clear all of the committee’s work remained the property of Congress, and since the full report was the committee’s work, it cannot be forced into the open through the FOIA.

The executive summary of the Senate’s report concludes that the CIA may have detained and used waterboarding on more people than it previously acknowledged, and actively misled Congress and even the rest of the Executive Branch about its activities.