By Shawn Musgrave

The document “includes comprehensive and excruciating detail” about the CIA’s “program of indefinite secret detention and the use of brutal interrogation techniques,” the late Sen. Dianne Feinstein, who chaired the Senate intelligence committee at the time, wrote in a 2014 summary.

For years, there have been calls to release the full report, including from human rights watchdogs, one of its authors, and even Feinstein and some high-ranking Democrats on the Senate intelligence committee.

“The full report details how the CIA lied to the public, the Congress, the president, and to itself about the information produced by the torture program,” said Tom Blanton, director of the National Security Archive at George Washington University, which has fought to obtain CIA records. “We need to know our real history so we don’t repeat its crimes.”

So far, efforts to obtain the torture report using the federal Freedom of Information Act have been unsuccessful. In late 2016, despite the CIA director’s objections, former President Barack Obama placed a copy in his presidential papers. But that copy is not subject to FOIA until 2029 -12 years after Obama left office.

The CIA and a handful of federal agencies also have copies of the torture report, although the Trump administration returned several of these to the Senate intelligence committee vaults in 2017.

The Obama, Trump, and Biden administrations all fought strenuously against FOIA requests for these agencies’ copies. In 2017, the Supreme Court declined to consider a challenge from the American Civil Liberties Union.

A law professor’s attempt to obtain the report under FOIA is currently pending before the US 2nd Circuit Court of Appeals, following oral argument last fall.

In 2021, my lawyer, Kel McClanahan. of National Security Counselors, tried a different tack. We sued the Senate intelligence committee itself and its current chair, Sen. Mark Warner, D-Va., for a copy of the full torture report.

FOIA explicitly does not apply to Congress. Instead, McClanahan argued that the public is entitled to the committee’s copy of the torture report under the common law right of access, a doctrine that is well developed when it comes to court records but less so regarding the records of Congress.

“It is high time that this critical piece of American history is made public,” McClanahan said.

The district court rejected this argument in 2022, ruling that it had no jurisdiction to order the committee to disclose the report because of the US Constitution’s Speech or Debate Clause, which protects members of Congress from being sued for legislative activities.

Last week, the D.C. Circuit Court of Appeals upheld that ruling.

“In sum, we conclude that the report is a legislative document, and that the Speech or Debate Clause therefore protects it from compelled disclosure,” wrote Judge Cornelia Pillard for the unanimous panel.

If courts continue declining to wade into the matter, Congress could also take steps to make the torture report available before 2029. Sen. Ron Wyden, D-Ore., who still sits on the intelligence committee, has previously called for it to be declassified.

“I’m not holding my breath,” Blanton said.