The SSCI Report & the Federal Records Act

I have a new piece up at Just Security entitled "Why Federal Agencies Must Still Preserve (and Should Finally Read) the SSCI Torture Report" that digs down on the legal status of the SSCI Report under the federal records laws.  It begins:

This week’s news that the CIA’s Office of Inspector General destroyed two copies of the SSCI Report on the CIA’s Detention and Interrogation Program comes on the heels of last week’s DC Circuit decision in ACLU v. CIA that the SSCI Report is not an “agency record” subject to the Freedom of Information Act (FOIA). The ACLU v. CIA decision is another setback for transparency over torture and means that a review of the complete 6,700-page Report for public release will not come through FOIA anytime soon.

The DC Circuit’s decision does not mean, however, that agencies can destroy their copies of the SSCI Report or return them to the SSCI, as Sen. Richard Burr demanded earlier (and has apparently repeated since the DC Circuit’s decision). Agencies should still have to preserve their copies of the SSCI Report as agency “records” under federal recordkeeping laws, which should free them to finally open the Report, read it, and learn the full history of our use of torture in order to never repeat it – precisely what the SSCI intended in the first place. Unfortunately, the official empowered to make a determination binding on all agencies that the Report is a “record” – the Archivist of the United States – has thus far been reluctant to enter the fray despite demands from Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.), as well as a group of NGOs. Perhaps the realization that the lack of a mandate from the Archivist could have already contributed to the CIA’s “inadvertent” destruction of two copies of the Report – and the DC Circuit’s FOIA decision –– will finally persuade the Archivist that he must act to protect agency copies of the Report.

Previous coverage of the status of the SSCI Report on this blog is here and previous coverage of the Archivist's authority to determine record status is here.