American Civil Liberties Union v. Central Intelligence Agency

105 F. Supp. 3d 35, 2015 U.S. Dist. LEXIS 65724, 2015 WL 2406825
CourtDistrict Court, District of Columbia
DecidedMay 20, 2015
DocketCivil Action No. 13-1870 (JEB)
StatusPublished
Cited by5 cases

This text of 105 F. Supp. 3d 35 (American Civil Liberties Union v. Central Intelligence Agency) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Civil Liberties Union v. Central Intelligence Agency, 105 F. Supp. 3d 35, 2015 U.S. Dist. LEXIS 65724, 2015 WL 2406825 (D.D.C. 2015).

Opinion

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

A lightning rod for controversy, the Central Intelligence Agency’s former detention and interrogation program has spawned a welter of cases under the Free[39]*39dom of Information Act demanding access to the inside story. In this particular suit, the American Civil Liberties Union and the American Civil Liberties Union Foundation seek to compel disclosure of two records relating to the program: the 6,968-page “Final Full Report” drafted by the Senate Select Committee on Intelligence after a comprehensive investigation, and a separate internal CIA study commissioned by former Director Leon Panetta. Contending that the Final Full Report is a congressional record exempt from the strictures of FOIA, the four defendant agencies'move to dismiss that count of the Complaint. The CIA — the only agency asked to produce the Panetta Review— separately seeks summary judgment on that withholding, invoking FOIA Exemptions 1, 3, and 5. Concurring in full with the Government, the Court will enter judgment in its favor.

I. Background

Given the circumstances surrounding the genesis of the disputed records, an overview of these events and the origins of the FOIA requests here may prove useful to the reader. In its explication, the Court first addresses the SSCI Report and the FOIA request pertaining to it, then turns to the Panetta Review and its corresponding request.

A. The SSCI Report

1. Initiation of Investigation

In March 2009, the Senate Select Committee on Intelligence announced plans to comprehensively review the CIA’s former detention and interrogation program. See Def. Mot. for Summary Judgment, Att. 1 (Declaration of Martha M‘. Lutz, Chief of the Litigation Support Unit, CIA), ¶ 11. To fulfill that ambition, Committee personnel required “unprecedented direct access to millions of pages of unredacted CIA documents.” Id. Wary of freewheeling disclosure of such sensitive information, the CIA negotiated with SSCI to devise accommodations that “respected both the President’s constitutional authorities over classified information and ... Congress’s constitutional authority to conduct oversight of the Executive Branch.” Def. Mot. to Dismiss, Att. 1 (Declaration of Neal Higgins, Director of the Office of Congressional Affairs, CIA), ¶ 11.

Those efforts were realized in a June 2’, 2009, letter from the SSCI Chairman and Vice Chairman to the CIA Director, in which the Committee agreed that its review of Agency records would take place in a secure electronic reading room at a CIA facility. See id., ¶¶ 10-11; see also id., Exh. D (June 2, 2009, Letter from SSCI to the CIA), ¶ 2. The Agency would, in turn, create a segregated network drive there where SSCI members and staffers could “prepare and store their work product ... in a secure environment.” Higgins Deck, ¶ 11; see also June 2, 2009, SSCI Letter, ¶¶ 5-6. ■

One key provision of the 2009 letter, and “a condition upon which SSCI insisted,” concerned the status of such work product. See Higgins Deck, ¶ 12. More specifically, the letter instructed:

Any documents generated on the network drive referenced in paragraph 5, 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 and will be kept at the Reading Room solely for secure safekeeping and,ease of reference. These documents remain congressional records in their entirety and_ disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any oth[40]*40er law.... If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records.

June 2, 2009, SSCI Letter, ¶ 6 (emphasis added). The governing terms so defined, SSCI began its Brobdingnagian task.

2. Approval and Transmission of Early Drafts

More than three years later, on December 13, 2012, SSCI held a closed session in which it approved an initial version of its full investigative report, as well as a standalone “Executive Summary.” See Higgins Decl., ¶ 15. It then transmitted both drafts to the Executive Branch for review, soliciting “suggested edits or comments” but limiting dissemination to specific individuals identified in advance to the Chairman. See ECF No. 41-1 (December 14, 2012, Letter from Senator Dianne Fein-stein to President Barack Obama).

On April 3, 2014, after revising both documents in response to the CIA’s feedback, the Committee met again in closed session to determine their proper disposition. See Higgins Deck, ¶ 17. It ultimately voted to approve both documents, but to designate at that time only the Executive Summary for declassification and eventual public release. See SSCI, Committee Study of the CIA’s Detention and Interrogation Program: Executive Summary at 8 (Dec. 3, 2014) [hereinafter “Executive Summary”], available at http://www. intelligence.senate.gov/study2014/ executive-summary.pdf; Higgins Deck, Exh. F. (April 3, 2014, Senator Feinstein Press Release) (“The full 6,200-page full report has been updated and will be held for declassification at a later time.”). Both documents were transmitted to the Executive Branch in the summer of 2014. See Higgins Deck, ¶ 21.

Over the next several months, SSCI and the CIA engaged in further discussions regarding the processing of the Executive Summary, and the Committee continued to edit that document — and the Full Report — in light of those conversations. See Higgins Deck, ¶ 19. After much negotiation, the Director of National Intelligence declassified a minimally redacted final version of the Executive Summary, which SSCI then publicly released on December 9,2014. See id., ¶ 20.

In her foreword to the Summary, Chairman Feinstein described the Full Report, clarifying that it is “now final and represents the official views of the Committee.” See Executive Summary, Chairman’s Foreword at 5 (Dec. 3, 2014) [hereinafter “Chairman’s Foreword”], available at http://www.intelligence.senate.gov/study 2014/foreword.pdf. She further expressed her desire that “[t]his and future Administrations should use this Study to guide future programs, correct past mistakes, increase oversight of CIA representations to policymakers, and ensure coercive interrogation practices are not used by our government again.” Id. at 5. In keeping with the Committee’s earlier decision, however, the Final Full Report was neither sent for declassification nor publicly released. See id. at 3 (“I chose not to seek declassification of the full Committee Study at this time.”).

3. Transmission of Final Full Report

Instead, during the several days immediately following the public release of the Executive Summary, SSCI sent a copy of the Final Full Report to President Obama and each Defendant agency. See Higgins Deck, ¶ 21; Def. Mot.

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105 F. Supp. 3d 35, 2015 U.S. Dist. LEXIS 65724, 2015 WL 2406825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-civil-liberties-union-v-central-intelligence-agency-dcd-2015.