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Will the Torture Report be Saved for History? FRINFORMSUM 6/8/2017

June 8, 2017

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

Now is the Time for Archivist to Call the Torture Report a Federal Record

The Trump Administration reportedly is returning copies of the Senate Intelligence Committee’s report on the CIA’s torture program to Congress. The move would effectively hide the report from FOIA and public scrutiny and comes after years of FOIA lawsuits to win access to the historically significant document and hold accountable those responsible for torture.

The Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others in 2016 to call the report what it is – a federal record. (The Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the authority to determine whether or not something constitutes a federal record.) Ferriero argued that doing so at that time would interfere with the ongoing FOIA case for the report brought by the ACLU.

The ACLU suit concluded this April when the Supreme Court declined the ACLU’s petition for a writ of certiorari, upholding a lower court’s decision that the report is a Congressional record, not a federal one.

It is now imperative that the Archivist act where others will not, and call the torture report what it is: a federal record. This will allow it to be reviewed on its merits via FOIA, even if it is found that parts of it must be currently withheld under Exemption One to protect national security. Claiming it is “not a record” so that it exists only in a land beyond FOIA would deprive the public of its right to a vitally important piece of our recent history.

DOJ Sits on Attorney Resignation Letters

The Justice Department is refusing to release copies of the resignation letters of the 46 U.S. attorneys; Attorney General Jeff Sessions ordered the attorneys to resign en masse in March.

The DOJ argued in response to a FOIA request from Burlington Free Press that the documents were “inherently personal and must be withheld” in full. USAToday reports that the DOJ made this determination without reading any of the letters. DOJ “Staff began working on the Free Press records request March 23 and immediately began to discuss withholding the resignation letters. Later that day, according to the FOIA processing notes, the department already had decided to ‘issue a blanket denial’ under the privacy exemption.”

Burlington Free Press appealed the denial, and was rebuffed a second time. The paper and its parent company are considering next steps.

Disappearing Daily Press Briefings at the State Department

Core practices of open government are eroding in the Trump Administration, with new limitations on the ability of the press to effectively question officials on U.S. foreign policy.” This is the opening line from a recent article by Steve Aftergood – who does not have a reputation for hyperbole –  on the discontinuation of the State Department’s press briefings.

As a point of comparison, last May the State Department held a press briefing every weekday with only two exceptions; this year the State Department had no daily press briefings in May (it held its first daily press briefing in five weeks on June 6). There were instead nine “special briefings” on pre-determined topics during the month of May.

Aftergood succinctly argues, “Daily press briefings both represent and reinforce a culture of open government. They are a window into the workings of the Administration, an expression of official self-understanding, a forum for challenging that understanding, and an opportunity to ask questions on almost any foreign policy subject, profound or trivial.”

Undated photo of Henry Kissinger and Otis Pike.

The White House, the CIA and the Pike Committee, 1975

The Ford administration came close to igniting a constitutional showdown with Congress more than 40 years ago over demands by a House panel known as the Pike Committee for evidence of possible abuses by the Central Intelligence Agency. At the height of congressional pushback against the “imperial presidency” in the mid-1970s, Representative Otis G. Pike’s investigation, which paralleled Senator Frank Church’s simultaneous inquiry, raised fears at the CIA and the White House about secret activities coming to light but also about setting precedents for Congress’s right of access to Executive Branch information.

A recent National Security Archive posting shows that the Ford administration initially stopped supplying Pike with documentation, and Secretary of State Henry Kissinger, among others, lobbied for a strong stand on unconditional secrecy, which would have escalated the confrontation dramatically. Pike eventually defused the crisis by establishing a procedure for congressional declassification of information – one that may have applications for future legislative probes of the Executive Branch.

TBT Pick – 106 Pinochet-Related Convictions in Chile

This week’s #tbt pick is chosen based on recent reporting that a Chilean judge has sentenced more than 100 former Pinochet regime agents to prison for “their role in the kidnappings and disappearances of 16 leftist militants during the Augusto Pinochet dictatorship.” The sentences ranged from 541 days to 20 years. This week’s #tbt pick is a 2016 posting that published – for the first time – a 1987 CIA special assessment concluding that “Pinochet ordered an ‘act of state terrorism’ on the streets of Washington, D.C., that took the lives of former Chilean diplomat Orlando Letelier, and his 25-year-old colleague, Ronni Moffitt.”

Visit the National Security Archive’s Chile Documentation Project page for all of our postings on Chile.

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Happy FOIA-ing!


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