If CIA Pwned SSCI’s Segregated Shared Drive, the Torture Report Should Be FOIA-able

As reader Tom has helpfully reminded me, both Mark Udall’s follow-up questions for Stephen Preston and the CIA’s declaration in ACLU’s FOIA to liberate the Torture Report describe the arrangements CIA required of the Senate Intelligence Committee staffers as they were working on the Torture Report.

Udall described how the CIA insisted on an “unnecessary multi-layered” process that added significantly to the time and cost of the report.

The CIA declined to provide the Senate Select Committee on Intelligence with access to CIA records at the Committee’s secure office space in the Hart Senate Office Building. Instead, the CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff. What role did you play in the decision to employ these unnecessary multi-layered review steps that delayed CIA document production to the Committee at significant governmental expense?

And the CIA declaration emphasizes how SSCI retained complete control over the materials in the Sensitive Compartmented Information Facility in which its staffers had been required to work.

One key principle necessary to this inter-branch accommodation, and a condition upon which SSCI insisted, was that the materials created by SSCI personnel on this segregated shared drive would not become “agency records” even though this work product was being created and stored on a CIA computer system. Specifically, in a 2 June 2009 letter from the SSCI Chairman and Vice Chairman to the CIA Director, the Committee expressly stated that the SSCI’s work product, including “draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee” and “remain congressional records in their entirety.” The SSCI further provided that the “disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee.”


Based on this inter-branch accommodation, SSCI personnel used the segregated shared drive to draft the document that is the subject of this litigation. As sections of the report reached a certain stage, the SSCI worked with the CIA information technology and security personnel to transfer these drafts from the segregated shared drive to the SSCI’s secure facilities at the U.S. Capitol complex so that the Committee could complete the drafting process in its workspaces.

Here’s the thing. The purported control SSCI had over the materials in this SCIF is central to CIA’s claim that the Torture Report is not an Agency document and therefore is immune from FOIA.

If SSCI did not have complete control over this material — if CIA could spy on SSCI at will (if, as seems to be the case when viewed in retrospect) — then it guts their argument that the Torture Report is a Congressional document.

If CIA pwned SSCI in that SCIF, then it should make this material (at least the draft reports, before they got moved over to SSCI’s own SCIF) FOIA-able.

So either CIA should be prosecuted for hacking SSCI. Or it should hand over the last draft of the report that resided on servers it felt free to hack into.

10 replies
  1. Cujo359 says:

    A question that occurs to me for no particular reason other than experience: Who is the classification authority for this document? Is it a congressional agency, or did the CIA have at least that much control?

  2. What Constitution? says:

    @Cujo359: Dick Cheney. Oh, wait, I thought you asked who is responsible for it being classified, but I see you actually only asked who had the authority to do it. That would be John Brennan.

  3. rg says:

    “…then it guts [the] argument that the Torture Report is a Congressional document”.

    If the document were stolen (or a copy made), it (the Torture Report)still is a Congressional document. However if the Agency made a copy of the report, or made records of what documents were examined then those would be Agency records and would be subject to FOIA. (Doesn’t all this would depend on what your definition of “is” is?)

  4. orionATL says:

    “so either… or…”

    hey, why not both :)

    as to the specifics of cia’s foi response (did doj participate in both situations by chance?),

    it’s just the natsec bogs doing what they’ve done dozens of times in the last decade, playing whichever side of the street benefits their legal need, which is always the same need – keep secret, cover up, misdirect.

  5. Frank33 says:

    I vote for prosecuting the torturers who are also liars, and who are deceiving Senators, which makes Congressional oversight impossible. Plus as a bonus they are illegal hackers. Barrett Brown was charged with 100 years worth of prison time for far less “illegal” hacking. And make the torturers names public so they never torture again.

    Who do these goons think they are? The Gestapo?

  6. TarheelDem says:


    Who do these goons think they are? The Gestapo?

    Despite the appeal to Godwin’s Law, this deserves some snark. They think they are better at what they do than the Gestapo. They try not to keep records.

  7. Anonsters says:

    In determining whether an agency has sufficient “control” over a record to transform the record into an “agency record” and thus make it subject to FOIA, the D.C. Circuit considers four factors:

    (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.

    So it’s not as simple as “did SSCI have complete control over their documents or did CIA meddle with them somehow?”

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