Government agencies are still working overtime to conceal a Senate report containing details on the CIA’s rendition, detention and interrogation program.
BROOKLYN, N.Y. — From destroyed videos to disappearing emails and now an endangered torture investigation, a New York-based law professor has found himself at the center of yet another legal battle to preserve records the CIA wants to forget.
Douglas Cox, a law professor at the City University of New York, said that he felt “shock and anger” — and no small sense of déjà vu — when he read recent New York Times revelations that the Trump administration had been returning copies of the full “torture report” to Congress.
In late 2014, the Senate Select Committee of Intelligence released only the executive summary of its study into the CIA’s rendition, detention and interrogation program, revealing the agency’s interrogation tactics to be far more gruesome and ineffective than previously acknowledged.
The heavily redacted report showed that the mistreatment went far beyond the previously disclosed accounts of so-called enhanced interrogation techniques like waterboarding and sleep deprivation into sexual humiliation like rectal feeding, all for worthless intelligence that sparked dead-end investigations.
But two White House administrations have kept further details from the classified 6,700-page report censored from public view.
In December, then-President Barack Obama refused to declassify it, ordering the National Archives and Records Administration to shield one copy for 12 years.Viewing President Donald Trump’s latest maneuver as a possible prelude to the destruction of one of few remaining copies, Cox took immediate action with a federal lawsuit filed hours after the Times went to print on Friday.
“I immediately started drafting this complaint to sort of get it in the door and hopefully stop any further activity — further transfers of that material back to Congress,” Cox said in a phone interview.
For more than a decade, Cox has found his expertise in what he calls a “very boring and lonely part of the law” — federal record-keeping statutes — implicates larger issues of accountability, historical memory and cover-up.
This dates back to the CIA’s destruction of 92 interrogation videotapes in 2005.
At the time, Cox had been representing Guantanamo detainees from Yemen, work that classification issues still prevent him from discussing. The CIA never faced sanction for those actions, and Cox recalled his surprise over a legal gray zone that allowed the evidence to disappear.
“There was just a feeling there should have been some sort of law that should have prevented this,” he said.
In 2014, Cox had been fighting a little-noticed CIA plan to destroy the emails of “non-senior” staffers when he noticed a pattern emerge: Whenever the agency wanted to get rid of an embarrassing document, it would classify it as a “nonrecord.”
“At first you think, maybe I’m being conspiratorial,” he said. “Then, you start to see the repetition of this, and you start to see that there does seem to be a programmatic system, that depending on whether a record is a good one or a bad one it gets treated differently.”
Through this process, Cox said, “You start to see something that looks like sanitization of history.”
For Cox, this history repeated itself last year in the D.C. Circuit’s reasoning for rejecting the American Civil Liberties Union’s request for the Senate torture report.
“When Congress creates a document and then shares it with a federal agency, the document does not become an ‘agency record’ subject to disclosure under FOIA if ‘Congress [has] manifested a clear intent to control the document,’” the court’s three-judge panel found on May 13, 2016.
After the ACLU’s defeat, Cox filed his own Freedom of Information Act requests to five federal agencies — the FBI, Department of Justice, Department of Defense, Office of the Director of National Intelligence and Department of State — in December.
He also reminded them that the Washington-based appeals court had no jurisdiction over New York, where he filed his requests.
According to Cox’s seven-page lawsuit filed Friday in Brooklyn federal court, the Times report shows the Trump administration flouting the law.
“If accurate, defendants’ actions violate both FOIA and the federal records laws,” the complaint states.
Cox said that the Director of National Intelligence’s reply, in particular, previously encouraged him to delay legal action. The reply said: “It would seem more reasonable to allow us sufficient time to processing your request and respond as soon as we can.”
The professor added, “For them to send that and then, behind the scenes, be transferring the very records that I requested out of their possession is particularly egregious.”
The Times reported that at least three copies of the torture report are confirmed to exist: the one Obama sent to NARA and two ordered preserved by judges in Washington and Guantanamo Bay, the latter ruling coming in the case against the accused 9/11 plotters.
Even if the public does not see the full report, Cox said, it is important that federal agencies view the findings that appear to be bound for a Senate vault.
“The entire purpose of Sen. Feinstein and the SSCI sending this to these agencies was so that they could read it and learn from it to revisit to make sure that we don’t ever torture again,” Cox said, referring to the California Democrat who led the Senate torture investigation.
“The fact that the agencies played this game that, ‘We’re not going to read it, so we can get rid of it,’ sort of undermines all of the work that was done,” he added.
All of the agencies named in the lawsuit declined to comment, except for the State Department, which did not respond to an email inquiry by press time.