Secrecy News

Archivist Won’t Call “Torture Report” a Permanent Record

Archivist of the United States David S. Ferriero last week rebuffed requests to formally designate the Senate Intelligence Committee report on CIA interrogation practices a “federal record” that must be preserved.

Senators Dianne Feinstein and Patrick Leahy had urged the Archivist to exercise his authority to certify that the Senate report is a federal record.

“We believe that Congress has made it clear that the National Archives has a responsibility — as the nation’s record keeper — to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes,” Senators Feinstein and Leahy wrote in an April 13 letter.

The report qualifies for preservation as a permanent record, they said, “because it contains uniquely valuable information regarding the CIA’s detention and interrogation program under the Bush Administration,” among other reasons.

Two weeks later, dozens of non-governmental organizations led by the Constitution Project sent their own letter to the Archivist likewise urging him to make a formal determination that the Senate report is a federal record that by law must be preserved.

“The Senate study began as an examination of the CIA’s destruction of crucial video records of the torture program, which occurred without NARA’s knowledge or authorization,” the NGO letter said. “It would be sadly ironic if NARA knowingly allowed the Executive Branch to return the most comprehensive history of the CIA torture program” to Congress without preserving a permanent archival record of it.

But Archivist Ferriero was unmoved by the appeals.

“NARA has refrained from interceding in this matter because the issue is the subject of ongoing litigation,” he wrote in an April 29 reply to Senators Feinstein and Leahy, referring to a Freedom of Information Act lawsuit brought by the ACLU for access to the report. “As is routine with respect to any issue that is being litigated, we have coordinated with litigation counsel at DOJ handling the pending court case.”

He also asserted that the mere fact that executive branch agencies are in possession of the Senate report does not necessarily mean that it qualifies as a federal record. There is a “possibility that an agency could accept physical receipt of a document but maintain it in such a manner that the agency does not acquire legal custody for purposes of either the FRA [Federal Records Act] or the FOIA,” he wrote.

However, at this stage “it would not be appropriate for me to have a predisposed viewpoint in any particular case as to whether recorded information is or is not a federal record,” he said, implying that a final decision would be reached at some later stage.

The National Archives acknowledged receipt of the NGO letter (which was co-signed by the FAS Project on Government Secrecy), and said that a response to that letter would be provided in due course.

Otherwise, officials contacted by Secrecy News would not discuss the matter on the record. But what emerges from several conversations is something like this:

Although the Archivist has independent legal authority to determine the status of federal records under the Presidential and Federal Records Act Amendments of 2014, he remains an executive branch official and he is not politically autonomous. In the face of FOIA litigation, which takes precedence as a practical matter, it actually is “routine” (or at least unsurprising) for the Archivist to defer to the Justice Department and to abstain from unilateral action.

If the ongoing FOIA litigation ultimately led to a determination that the Senate report is a “record” for purposes of FOIA, then it would be easy for the Archivist to concur. If not, then it would be more difficult, but not altogether impossible, for the Archivist to conclude that the report is nevertheless a federal record. “The determination of record status under the FRA and the Freedom of Information Act (FOIA), while not identical, is similar,” the Archivist wrote.

In any event, while an immediate resolution of this dispute is foreclosed by the Archivist’s refusal to intervene, the larger question of the status of the Senate report as a federal record remains open.

Legal technicalities aside, it would be astonishing if the full Senate Committee report were not preserved for posterity one way or another, and eventually published. Even if it is not the last word on post-9/11 detention and interrogation, and even if not every word of it turns out to be true and correct, the Committee report has already become central to public discourse on the subject. If it became possible to erase it from the historical record in some kind of Stalinesque act of suppression, then we would all have bigger problems to worry about.

See related coverage from the Constitution Project, the National Security Archive, the Bill of Rights Defense Committee, and Courthouse News.