Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________________ ABD AL-RAHIM HUSSAIN ) MOHAMMED AL-NASHIRI, ) ) Petitioner, ) ) v. ) Civil Action 08-cv-1207 (RCL) ) BARACK OBAMA, et al., ) ) Respondents. ) _____________________________________ ) RESPONDENTS’ MOTION FOR PARTIAL RECONSIDERATION AND CLARIFICATION OR, IN THE ALTERNATIVE, FOR A STAY On December 28, 2016, the Court granted Petitioner’s Motion for a Preservation Order (see Notice of Mot. for Preservation Order (Nov. 22, 2016) (ECF No. 260). See Order (ECF No. 268) (“the Order”). In doing so, the Court adopted both Petitioner’s proposed order and, as the rationale for its Order, “the reasons stated in Petitioner’s reply [brief].” See Order at 1. The government respectfully seeks limited reconsideration of three aspects of the Order. As to the first two, the government asks the Court to reconsider the requirements (1) that the government preserve a copy of the Senate Select Committee on Intelligence’s “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (2014) (“the SSCI Report” or “the Report”), Order at 1, and (2) that the government deposit a copy of that report with the Court Information Security Officer (“CISO”) for storage, id. at 2. Reconsideration is appropriate primarily because intervening facts have rendered these provisions unnecessary. As explained below, a copy of the SSCI Report is already being preserved in the Executive Branch under the Presidential Records Act, 44 U.S.C. §§ 2201-2209, and documents underlying the Report have Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 2 of 16 been and continue to be preserved under a 2007 preservation directive issued by the Director of the CIA. Further, no copy of the SSCI Report held by the CIA has been destroyed, nor has any improper destruction of evidence by the CIA occurred since the issuance of the 2007 preservation directive. And importantly, the two challenged provisions of the Order also contravene policy concerns, implicating separation of powers, that were recently emphasized by the Court of Appeals in a decision concerning an effort to compel disclosure of the Report. See ACLU v. CIA, 823 F.3d, 655, 665-68 (D.C. Cir. 2016), petition for cert. filed, No. 16-629 (U.S. Nov. 9, 2016). In particular, provisions such as these threaten to disrupt the information flow between the political branches necessary for proper oversight of Executive Branch agencies by Congress. In seeking reconsideration of these two aspects of the Order, the government emphasizes that the relief it seeks is limited to that concerning the Report itself. The government does not seek reconsideration of the Court’s directives to preserve the CIA’s response to the SSCI Report, see Order at 1, ¶ 2, or of the documents underlying that response or the Report, see id. at 1, ¶ 3, which are already subject to the CIA preservation directive. Respondents, however, also seek clarification and, if necessary, reconsideration, as to the scope of another part of the Order. The Order requires the government to preserve evidence relating to any “detainees held in the custody of the Executive Branch since September 11, 2001.” Order at 1. Interpreted literally, this mandate could include, among other things, evidence related to convicted criminals held by the Bureau of Prisons, criminal defendants detained pending federal trial, or even immigration-related detainees. The government respectfully requests that the Court reconsider this portion of the Order as unnecessary, or, at a minimum, clarify that the Order refers to only detainees held at Guantanamo Bay under the 2 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 3 of 16 authority of the Authorization for Use of Military Force, Pub. Law 107-40, 115 Stat.224 (2001) (“AUMF”). In the alternative, should the Court decline to reconsider or to clarify the Order as requested, in whole or in part, the government respectfully seeks a stay to permit it to consider whether to seek appellate review of the Order, and if an appeal is authorized, a stay pending appellate review. Additionally, the government respectfully requests a stay of these provisions pending the decision of the Court on this Motion for Reconsideration.1 ARGUMENT I. Reconsideration of the SSCI Report Preservation Provisions Is Appropriate Though disfavored, district courts may grant reconsideration “as justice requires.” Capitol Sprinkler Insp., Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (internal quotation omitted). Reconsideration is appropriate, for example, if “the Court has ‘patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.” Singh v. George Washington Univ., 383 F. Supp.2d 99, 101 (D.D.C. 2005) (quoting Cobell v. Norton, 224 F.R.D. 266, 277 (D.D.C. 2004) (internal citation omitted) (alteration in original)). Here, reconsideration is warranted. Two intervening facts and an apparent misapprehension of the relevance of the Report reflected in Petitioner’s Reply manifest the need to vacate the twin preservation mandates concerning the SSCI Report—(1) that the Executive 1 Pursuant to Local Civil Rule 7(m), undersigned counsel consulted with counsel for Petitioner and was informed that Petitioner will oppose this motion. 3 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 4 of 16 Branch preserve a copy of the SSCI Report that were provided to it by the SSCI Chair and, more importantly, (2) that it tender a copy to the CISO. Reconsideration is even more appropriate in light of the serious policy concerns discussed in the ACLU v. CIA decision that highlight the undue burdens associated with the mandates contained in the Order.2 2 The SSCI Report resulted from a comprehensive review of the CIA’s former detention and interrogation program initiated by the SSCI in 2009 as part of its oversight of the intelligence community. ACLU v. CIA, 823 F.3d at 659. The CIA and the Senate Committee negotiated a special arrangement, memorialized in a June 2009 letter, in which Senate Committee members and staff would have access to relevant CIA documents in a secure electronic reading room at a CIA facility and would prepare and store their work product on a segregated network drive. Id. at 659. The letter specified that the Senate Committee’s work product stored on the network drive would remain “congressional records” whose disposition would be controlled exclusively by the Committee, not by the CIA. Specifically, the letter specified that documents generated by the Committee: are the property of the Committee and will be kept at the Reading Room solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law . . . . If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records. 823 F.3d at 659–60 (quoting Letter from Dianne Feinstein, Chairman, Senate Select Comm. on Intelligence, and Christopher S. Bond, Vice Chairman, Senate Select Comm. on Intelligence, to Leon Panetta, Director, CIA ¶ 6 (June 2, 2009)). The Senate Committee completed its report in December 2014. The full report contains 6,963 classified pages. 823 F.3d at 661. The then-chair of the Senate Committee sent copies of the full report to the President, the CIA, and several other agencies. An accompanying letter indicated the oversight function of the report process, stating: [T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve that result, I hope you will encourage use of the full report in the future development of CIA training 4 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 5 of 16 The status of the SSCI Report was recently considered by the Court of Appeals in ACLU v. CIA, a case concerning a Freedom of Information Act request seeking disclosure of copies of the SSCI Report in the possession of the CIA and three other agencies. 823 F.3d at 659. The Court of Appeals held that it was clear from the memorialized understanding between the Committee and the CIA, supra n.2, that the Committee intended to retain control over dissemination of the full Report. Accordingly, the Court held that the Report was a Congressional document rather than an agency document subject to disclosure under FOIA. Id. at 664–68. In so holding, the Court of Appeals expressly noted that important policy considerations strongly counsel respect for Congress’s clearly expressed intent to control documents that it shares with the Executive Branch, a respect rooted in the need to avoid inadvertently chilling the information exchange vital to Congress’s oversight functions with respect to Executive Branch agencies. See id. at 662-63 (“Congress exercises oversight authority over the various federal agencies, and thus, has an undoubted interest in exchanging documents with those agencies to facilitate their proper functioning in according with Congress’ originating intent.”).3 programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit. Id. at 660–61 (quoting Letter from Dianne Feinstein, Chairman, Senate Select Comm. on Intelligence, to President Barack Obama (Dec. 10, 2014)). In January 2015, however, Senator Richard Burr, the new chair of the Senate Committee, sent a letter to the President requesting that “all copies of the full and final report in the possession of the Executive Branch be returned immediately to the Committee.” Id. at 661 (quoting Letter from Richard Burr, Chairman, Senate Select Comm. on Intelligence, to President Barack Obama (Jan. 14, 2015)). 3 Previously, the Court of Appeals has similarly explained that these “special policy considerations” are rooted in “Congress’ long-recognized prerogative to maintain the confidentiality of its own records as well as its vital function as overseer of the Executive Branch.” Paisley v. CIA, 712 F.2d 686, 693 n.30 (D.C. Cir. 1983) (citing McGehee v. CIA, 697 5 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 6 of 16 Although in ACLU v. CIA the Court of Appeals explained these governing policy considerations in the context of a FOIA case, those same policy concerns should apply to the preservation relief that has been granted to Petitioner, which occasions similar kinds of harms that the Court of Appeals considered so important to avoid. Indeed, the Court should not require the government to retain a copy of the SSCI Report or deliver a copy to the Court. The Senate Committee still controls the SSCI Report and has requested that the Executive Branch return copies currently in its possession. An order requiring preservation of the SSCI Report or delivery of it to the Court would unduly interfere with the 2009 agreement negotiated between the Senate Committee and the CIA and with the larger oversight relationship between the Senate Committee and the CIA. Such potential interference and burdens make the preservation relief requested by Petitioner especially improper and unwarranted.4 F.2d 1095, 1107–08 (D.C. Cir. 1983) and Goland v. CIA, 607 F.2d 339, 348 n.48 (D.C. Cir. 1978)), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam)). As further explained in McGehee: Congress . . . should not be forced to abandon its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises in part through exchange of documents with those agencies to “facilitate their proper functioning in accordance with Congress’ originating intent.”) 697 F.2d at 1108 (quoting Goland, 607 F.2d at 346). 4 Even under the standard for preservation argued by Petitioner, see Mot. at 10, a preservation order must be both necessary and not unduly burdensome. See Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 137–38 (Fed. Cl. 2004) (“[T]he Supreme Court has cautioned, ‘inherent powers must be exercised with restraint and discretion,’” such that a party seeking a preservation order must demonstrate that the preservation order is necessary and not unduly burdensome) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). As explained above, the Order unduly burdens the relationship between the political branches, and as explained below, the Order is unnecessary. To be clear, Respondents do not concede that Pueblo of Laguna supplies the appropriate legal standard for issuance of a preservation order in these circumstances, especially given that the Order requires not just preservation but enjoins the government to deliver a copy of the Report to the CISO. Cf. Madden v. Wyeth, No. 3-03-CV-0167-R, 2003 WL 6 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 7 of 16 In any event, based on intervening events and other factors, the Order is no longer necessary. Accordingly, the government respectfully requests that the Court reconsider and vacate those two portions of the Order.5 1. The first intervening fact alleviating any need for the Order is that a copy of the SSCI Report will remain in the possession of the Executive Branch, stored by the National Archives and Record Administration. On December 9, 2016, one day after Petitioner submitted his reply brief, the Counsel to the President informed the Chairman and Vice-Chairman of the SSCI that a copy of the Report will be preserved under the Presidential Records Act, 44 U.S.C. §§ 22012209 (requiring that the Archivist of the United States assume responsibility for preservation of “Presidential records,” defined generally by the statute as documentary materials “received by the President”). See Ex. 2, Letter from W. Neil Eggleston to the Honorable Richard Burr, Chairman, Senate Select Comm. on Intelligence (Dec. 9, 2016); see also Letter from W. Neil Eggleston to the Honorable Dianne Feinstein, Vice Chairman, Senate Select Comm. on Intelligence (Dec. 9, 2016) (available at http://go.usa.gov/x86nB). This action by the President means that the Report’s continued existence is no longer (if it ever was) “contingent on political vicissitudes.” See Reply Br. at 2-3. Even were the Executive to return its other copies to the 21443404, at *1 (N.D. Tex. Apr. 16, 2003) (motion to preserve evidence is injunctive remedy that should issue only upon an adequate showing that equitable relief is warranted). 5 In the military commission trial of the accused September 11th conspirators, the military judge recently ordered the Department of Defense to preserve a copy of the Report, relying on this Court’s Order as partial justification for his order. See Ex. 1, Order, United States v. Khalid Shaikh Mohammad (KSM II), AE 286T ¶¶ 5(d), 7 (Jan. 10, 2017). The military judge, though requested to do so, did not require the prosecution to lodge a copy of the Report with the commission. Id. ¶¶ 6, 7. 7 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 8 of 16 SSCI and then the SSCI were to destroy all copies (including, presumably, the original),6 a highly unlikely scenario, a copy of the SSCI Report would still be preserved in the National Archives pursuant to the Presidential Records Act. 2. A second intervening fact establishes that Petitioner unintentionally overstated the need for the Order in general, and for the two SSCI-Report-preservation provisions in particular. With respect to the SSCI Report, contrary to the press report that Petitioner invoked, the CIA’s Office of Inspector General has not destroyed the copy of the Report that was sent to it. See Mot. at 6 (citing M. Isikoff, “Senate Report on CIA Torture is One Step Closer to Disappearing,” Yahoo News, May 16, 2016). Rather, as the attached declaration from the Director of the CIA attests, both the CIA and the CIA’s Office of Inspector General currently have in their possession a copy of the final version of the Report.7 Ex. 3, Decl. of John O. Brennan, Director Central Intelligence Agency at ¶ 11.8 Accordingly, Petitioner erred when he implied that the government had violated its representation in ACLU v. CIA that it would preserve the status quo with respect to the SSCI Report in its possession pending the final resolution of that case. See Reply Br. at 6.9 To the 6 Petitioner’s requested relief makes sense only if Petitioner has assumed that the Committee intends to not only recall all copies of the Report, but to destroy them as well. 7 Although the initial media reports characterized the CIA IG’s copy as having been lost or destroyed, the CIA understands that that copy was subsequently located. 8 The need to obtain this declaration so that this fact and certain others detailed therein could be brought to the Court’s attention was a primary reason for the government’s request for an extension of time to respond fully to Petitioner’s motion. See Respts.’ Interim Resp. to Petr.’s Mot. for a Preservation Order at 7 (Dec. 5, 2016) (ECF No. 262). 9 See also ACLU v. CIA, Civ. Action No. 13-1870 (JEB), Defs.’ Resp. to Pls.’ Emerg. Mot. for an Order Protecting this Court’s Juris. at 1, 3-4, (D.D.C. Feb. 6, 2015) (ECF No. 42) (representing that government would “preserve the status quo regarding the Full Report absent either leave of court or resolution of this litigation in the government’s favor.”). 8 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 9 of 16 contrary, that representation was accurate when Petitioner filed his motion, and remains so to this day.10 Furthermore, with respect to the need for preservation relief more generally, Petitioner also failed to note that for over eight years, the CIA has had an internal directive barring it from destroying information relating to Guantánamo and CIA detainees. In 2007, after the CIA’s wellpublicized destruction of videotapes of some of its interrogations referenced in Petitioner’s Motion, then-Director Michael Hayden ordered the agency to preserve all documents, information, and evidence relating to any detainee either held at Guantanamo Bay or held by the CIA. Brennan Decl., ¶ 6. That directive remains in full force today. Id., ¶ 7. And since thenDirector Hayden issued that order, there have been no substantiated reports of the improper destruction of any such material warranting a preservation order. Accordingly, Petitioner incorrectly justified the relief he requested by asserting that “[t]here is already a pattern of evidence destruction in this case.” Mot. at 18. To the contrary, there was simply no need for the Court to order preservation relief in this matter. See Pueblo of Laguna, 60 Fed. Cl. at 138 (party seeking preservation order must show that “absent a court order, there is a significant risk that relevant evidence will be lost or destroyed.”). 3. Lastly, the government respectfully suggests that the two SSCI-Report-preservation provisions appear to have been based on an apparent misapprehension of the relevance of the 10 The ACLU has petitioned the Supreme Court for certiorari. See ACLU v. CIA, No. 16-629, Pet. For Cert. (U.S. Nov. 9, 2016). As that case is still pending, the government’s commitment to preserve the status quo remains in force. Moreover, Respondents will advise this Court and Petitioner’s counsel in advance of any change in that status quo. But given the President’s lodging of a copy of the SSCI Report in the National Archives, even were the Supreme Court to deny certiorari, or to grant it and then affirm, and even were the Executive then to return all other copies to the SSCI, one copy of the report would still remain within the Executive Branch. 9 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 10 of 16 Report reflected in Petitioner’s Reply. As an initial matter, the government notes that the intelligence documents that were the source of the facts related the Report remain in the possession of the CIA. Moreover, the documents are being preserved pursuant to then-Director Hayden’s preservation directive. 11 See Brennan Decl. ¶¶ 6-7. And these intelligence documents will continue to be protected under both that directive and under those portions of this Court’s Order to which the government is not seeking reconsideration, see Order at 1 ¶ 3 (requiring, in part, the preservation of all documents referenced or relied on in the SSCI Report). With respect to the relevance of the SSCI Report to this case more generally, this habeas action challenges the legality of Petitioner’s continuing detention under the AUMF as informed by the laws of war. The government does not rely on any post-capture statements by Petitioner to justify his detention, nor does it intend to do so. Accordingly, even if, as Petitioner contends, see Reply Br. at 8, a portion of the Report documents his interrogations while in CIA custody, that portion is unlikely to show that he is improperly detained under the AUMF and, so, is likely not discoverable. See Case Mgmt. Order (Nov. 6, 2008) (ECF No. 53) (“Merits Judge may, for good cause, permit the petitioner to obtain limited discovery” if the discovery request is “likely to produce evidence that demonstrates that the petitioner’s detention is unlawful”). 11 As explained in Director Brennan’s declaration, the primary repository of information used by the Senate Committee in its study was an electronic database known as RDINet. Brennan Decl. ¶ 8. RDINet contains millions of highly classified documents, including emails, memoranda, and other sensitive records containing classified and compartmented information about intelligence sources and methods; pseudonyms and true names of CIA personnel, assets, and liaison officers, and details about liaison relationships. Id. Director Brennan has confirmed that the contents of RDINet are subject to former Director Hayden’s preservation directive, id. ¶ 9, so there was no need for judicial relief to preserve the documents underlying the SSCI Report or those pertaining to Petitioner. 10 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 11 of 16 Similarly misplaced is his argument that he needs the Report to support a conditions-ofconfinement claim. To be sure, pursuant to Aamer v. Obama, Petitioner is entitled in this action to challenge not only the legality of his continuing detention, but also the conditions of that detention. 742 F.3d 1023, 1038 (D.C. Cir. 2014). But Petitioner’s Reply, see Reply Br. at 7-8, misapprehends just what a proper condition-of-confinement claim is. Under Aamer, Petitioner is entitled to challenge only his current conditions of confinement. Aamer, 742 F.3d at 1035 (explaining that a conditions-of-confinement claim brought through habeas addresses whether “the conditions in which the petitioner is currently being held violate the law.”) (emphasis added). Petitioner has brought no such claim here. Rather, Petitioner merely addresses his alleged former conditions-of-confinement while held in CIA custody. Reply at 7-8, 10. Aamer provides no basis for such a claim. But to the extent that facts reflected in the Report nonetheless might be considered relevant here, the underlying intelligence documents, which were the source of the facts related in the Report, remain in the possession of the CIA and are being preserved, as explained above. In summary, the bases reflected in Petitioner’s Reply for the two SSCI-Reportpreservation provisions of the Order—that is, a purported pattern of destruction and a danger that the Report will cease to exist—are unfounded. In addition, Petitioner’s Reply does not make clear the appropriate relevance of the Report here, but whatever the case, it is clear that the underlying source documents supporting any relevant facts contained in the Report are being and will be preserved. The Court also should reconsider its Order based on the policy concerns noted by the Court of Appeals in ACLU v. CIA, including Congress’s express intent to control dissemination of the Report. The government respectfully requests that the Court vacate both the 11 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 12 of 16 direction to the government to preserve the SSCI Report currently in its possession and to lodge a copy of the Report with the CISO. II. Respondents’ Request that the Court Clarify the Scope of its Order Respondents also respectfully request that the Court clarify the scope of a separate provision of the Order. The Order states that “Respondents shall preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents’ possession, custody or control, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch since September 11, 2001.” Order at 1. The phrase “detainees held in the custody of the Executive Branch,” without qualification, suggests that the Order, literally interpreted, could apply with respect to all individuals detained by the government, for example, convicted criminals incarcerated in federal prisons, criminal defendants held under federal pretrial detention, and even immigration detainees. Petitioner’s Reply, upon which the Court based its ruling, does not provide any guidance, argument, or rationale regarding this issue. Indeed, like Petitioner’s Motion itself, the Reply focuses primarily on the SSCI Report and does not address with any specificity Petitioner’s other preservation requests. Even under the Pueblo of Laguna standard, “the proponent [of a preservation order] must show that the particular steps to be adopted will be effective, but not overbroad[.]” 60 Fed. Cl. at 138. Neither in his Reply nor otherwise has Petitioner justified preservation relief as broad as reflected in a literal reading of the preservation order, including how such relief could be justified based on the specifics of his habeas case. Accordingly, Respondents respectfully request that the Court, consistent with the scope of this habeas proceeding, reconsider this aspect of its Order and eliminate the preservation requirement as unnecessary for the reasons explained above. See supra at 9 (addressing CIA’s 12 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 13 of 16 long-standing preservation directive). Alternatively, at a minimum, the Court should clarify that its Order applies only with respect to individuals who have been detained at Guantánamo Bay pursuant to the AUMF (and does not include the SSCI Report itself, for the reasons set out above).12 Such a clarification would render the Order consistent with the CIA’s long-standing preservation directive. And such a clarification would also mirror preservation orders entered by other District Judges in these Guantanamo habeas cases. See, e.g., Anam v. Obama, No. 041194 (HHK) (D.D.C), Order (June 10, 2005) (ECF No. 124) (requiring preservation of “evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay, Cuba”); Abdah v. Obama, 04-1254 (D.D.C.), Order (June 10, 2005) (ECF No. 155) (same). As explained above, Petitioner offers no serious basis, rationale, or explanation of need for any broader preservation order, or indeed, any order at all. III. Respondents Request That The Court Stay Their Obligation Concerning Handling and Disposition of the SSCI Report Pending Possible Appellate Review Should the Court decline to reconsider the portions of the Order directing Respondents to take action with respect to the copies of the SSCI Report in their possession, or decline to reconsider or clarify the Order’s reference to “detainees held in the custody of the Executive Branch,” the government will consider whether to seek appellate review of the Order. Accordingly, as to any of these three provisions that it does not alter, Respondents respectfully request that the Court stay those provisions pending final resolution of any appellate review or 12 To be clear, the government is not seeking reconsideration or clarification of the directive to preserve all evidence, documents, and information relating to Petitioner, see Order at 1, exclusive of the obligation to preserve a copy of the SSCI Report. Nevertheless, the government maintains that this aspect of the Order is also unnecessary in light of the CIA’s internal preservation directive. 13 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 14 of 16 until Respondents decide not to seek such review.13 Additionally, Respondents respectfully request a stay of these three obligations pending the Court’s decision on this motion for reconsideration. A stay pending appellate review is appropriate where (1) the moving party has a substantial likelihood of success on the merits; (2) the moving party will suffer irreparable injury absent the stay; (3) the stay will not substantially injure the other parties interested in the proceedings; and (4) the public interest will be served by a stay. Nken v. Holder, 556 U.S. 418, 434 (2009); United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (internal citation omitted). Here, as explained above, the facts demonstrate that there is no significant risk that the SSCI Report will be destroyed or that information underlying the Report will be destroyed; indeed, the opposite is true. Respondents thus have a strong likelihood of success should they decide to seek appellate review. See Pueblo of Laguna, 60 Fed. Cl. at 138 (in the absence of a significant risk that the relevant evidence will be lost or destroyed, a preservation order is not necessary). Respondents recognize that should the Court decline to partially reconsider its Order, the Court will have disagreed with the government’s position on the need and propriety of depositing a copy of the SSCI Report with the CISO. But even so, Respondents respectfully submit that the discussion above establishes that they “have made out a ‘substantial case on the merits,’” a case sufficient to “weigh[] in favor of a stay.” Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Rep., 240 F. Supp. 2d 21, 22 (D.D.C. 2003) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). 13 Given the serious issues raised by the Order, Respondents will move expeditiously to seek a determination whether to seek appellate review. 14 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 15 of 16 As for the analysis of irreparable harm and the public interest, compliance with the Order’s directive to deliver a copy of the SSCI Report to the CISO would immediately impose the very burdens that animated the Court of Appeals’ decision in ACLU v. CIA. Specifically, further dissemination of the Report by the Executive, even under court order, would improperly burden the relations between the Executive and Legislative Branches. Forcing the Executive Branch to further disseminate the SSCI Report by lodging a copy with the CISO would be inconsistent with the express demand of the SSCI upon the Executive Branch for the return of the document and would impede Congress’ oversight role and discourage the flow of information between the two coordinate branches of government. See supra at 5-6. Pending any necessary appellate review, the Court should stay its hand from imposing such burdens upon the relationship between the political branches and upon the public interest as reflected in the special policy considerations credited by the Court of Appeals in ACLU v. CIA. Lastly, the stay would not substantially injure Petitioner because, as explained above, there simply is no risk that every copy of the SSCI Report in the possession of the Executive Branch will be destroyed and because information underlying the Report is subject to a longstanding preservation directive by the CIA. For these reasons, should the Court deny Respondents’ motion for partial reconsideration and clarification, in whole or in part, a stay pending resolution of this Motion and Respondents’ determination whether to seek appellate review (and, should appellate review be sought, pending resolution of that proceeding) is warranted. CONCLUSION For the reasons stated above, the Court should reconsider those portions of the Order of December 28, 2016 that require the government to preserve copies of the SSCI Report in its 15 Case 1:08-cv-01207-RCL Document 270 Filed 01/13/17 Page 16 of 16 possession and to submit a copy to the CISO. Additionally, the government respectfully requests that the Court reconsider the more general mandate of the Order, or at least narrow the scope of that portion of the Order to refer solely to detainees held at Guantanamo Bay, pursuant to the AUMF. In the alternative, should the Court decline any of these requests, the government respectfully requests the Court stay enforcement of any of these three provisions that remain extant so that the government may determine whether to seek appellate review and seek such review if appropriate. The government also respectfully requests a stay of these three provisions during the pendency of this Motion for Reconsideration. January 13, 2017 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOSEPH H. HUNT Director TERRY M. HENRY Assistant Branch Director /s/ Kristina A. Wolfe RONALD J. WILTSIE (D.C. Bar No. 431562) KRISTINA A. WOLFE Attorneys Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave NW Washington DC 20530 Tel: (202) 353-4519 Fax: (202) 616-8460 E-mail: Kristina.Wolfe@usdoj.gov Attorneys for Respondent 16 Case Document 270-1 Filed 01/13/17 Page 1 of 5 EXHIBIT 1 Case Document 270-1 Filed 01/13/17 Page 2 of 5 PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 286T v. ORDER IGIALID SHAIKH MOHAMMAD, Emergency Defense Motion WALID MUHAMMAD SALIH to Order the Government to Produce the MUBARAK BIN Full. Unredacted Senate Report on the RDI RAMZI BIN AL SHIBH, Program. or, in the Alternative, to File the ALI ABDUL AZIZ AU, Report with the Commission to be Maintained MUSTAFA AHMED ADAM EX PART and Under Seal Pending Further AL HAWSAWI Rulings 10 January 2017 1. On 2 April 2014. Counsel for Mr. Ali ?led a motionl to compel discovery of the full, un- redacted Senate Select Committee on Intelligence (SSCI) Study of the CIA Rendition, Detention. and Interrogation Program (SSCI Report) and related documents. The Government responded.2 requesting the Commission defer ruling on AE 2861 because the Government was seeking to obtain access to the full Report from both the legislative and the executive branches.3 Among the issues raised in AB 386 is whether the Commission has authority to compel discovery ofa Congressional record. 2. On 30 January 2015, Counsel for the Accused ?led a motion4 (AF. 286]) requesting the Commission compel discovery of the Report to the Defense. or. in the alternative, order the Government to ?le the SSCI Report with the Commission ex parte and under seal so it can be made part ofthe appellate record and be produced at a later date. All 286 Defense Motion to (?ompel Discovery of Senate Select Committee on Intelligence Study Program and Related Documents. ?led 2 April 20l4. 2 Ali 286K (GOV). Govemment Response To Defense Supplement to AF 286. Motion To Compel Discovery of Senate Select (?ommittee on Intelligence Study ol?RDl Program and Related Documents. ?led 12 February 20l5. 3 There were additional ?lings by the parties in the AE 286 series that are not germane to this Order. 4 AF. 2861. Emergency Defense Motion to Order the Government to Produce the Full. Unredacted Senate Report on the RDI Program. or. in the Altemativc. to File the Report with the Commission to be Maintained PARTE and Under Seal Pending Further Rulings. ?led 30 January 20l5. Appellate Exhibit 286T Page 1 of 4 PUBLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 3 of 5 PUBLIC RELEASE 3. On 13 February 2015, the Government responded.S Within the response. they asserted, ?The United States Department of Defense . . . can assure the Commission that it will preserve the status quo regarding the full SSCI Report absent either leave ofthe Commission or resolution of this litigation in the Prosecution?s favor. The Commission thus need not compel the Prosecution to ?le the SSCI Report with the Commission."6 On 24 February 2015. the Government notified7 the Commission that, as of I 8 February 2015. the SSCI authorized them to review the full SSCI Report. 4. The Commission heard oral argument regarding AE 2861 on 7 December 2016.8 The Government advised the Commission it was reviewing the full SSCI Report for discoverable information and was providing discoverable information to the Defense regarding the CIA Rendition, Detention, and Interrogation (RDI) Program via AB 3089 et seq.'0 The Government was not prepared at that time to con?rm whether the Department of Defense currently had a copy of the SSC I Report. Following oral argument. the Commission ordered the Government to notify the Commission whether the currently possessed a copy of the SSC I Report.'2 On 5 Ali 2861. (GOV). Govemment Response to Emergency Defense Motion to Order the Government to Produce the Full. Unredacted Senate Report on the RDI Program. or. in the Alternative. to lile the Report with The Commission (to be Maintained Ex Parte and Under Seal Pending Further Rulings. filed 13 February 2015. Id. at 6. 7 Ali 286M (GOV), Government Sixth Notice To Defense Motion To Compcl Discovery of Senate Select Committee on Intelligence Study of RDI Program and Related Documents. ?led 24 February 2015. UnofticiaI/Unauthenticated Transcript ofthe Khalid Shaikh Mohammad et a1 Motions Hearing Dated 7 December 2016 from 10:51 am. to 12:02 m. at pp. 14447-14475. 0 See AB 308 Defense Motion to (?ompel Discovery Regarding CIA Rendition, Detention. and Interrogation Program. filed 30 June 2014. et seq. See also A13 3971-?. Trial (?onduct ()rder. Government Proposed Consolidation of Motions to Compcl Information Relating to the Former Rendition. detention. and Interrogation Program. dated 5 April 2016. ?0 Transcript at 14466. Transcript at 14469 and 14471. '2 Ali 2860. Order: Emergency Defense Motion to Order the Govemment to Produce the Full. llnredacted Senate Report on the RDI Program. or. in the Alternative. to File the Report with the Commission to be Maintained [if and Under Seal Pending Further Rulings. dated 7 December 2016. Appellate Exhibit 286T Page 2 of 4 PUBLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 4 of 5 PUBLIC RELEASE 15 December the Government advised the Commission that the had two copies of the SSCI Report and the treats the SSCI Report as a Congressional Record. 5. Findings. a. The maintains two copies ofthe full SSCI Report. The treats its copies of the SSCI report as Congressional records. b. The Government. via AE 308 et seq has established that information referenced in the SSCI Report is potentially discoverable. c. The Government is currently in the process of providing RDI discovery in the AB 308 series. The Government has invoked Military Commission Rule of Evidence (M.C.R.E.) 505(f) to seek substitutions and other relief for providing classified information. The M.C.R.E. 505(f) process is ongoing and the Government has not completed provision ofRDl discovery in the AB 308 series. Thus. the underlying motion by the Defense for the Commission to compel discovery ofthe full un-redacted SSCI report is not ripe. d. The issues ofthe Commission?s authority to compel discovery of Congressional records and whether Congressional records in the possession the are "within the possession. custody. or control of the Government" under Rule for Military Commissions are also not ripe for decision. The Commission notes an Article Court within the DC. Circuit has recently issued a preservation order for the Government to preserve the full SSCI Report habeas litigation concerning a Guantanamo Bay detainee not party to this case. '3 AE 286R (GOV). Government Notice Concerning Defense Motion to Compel Discovery Of Senate Select Committee on Intelligence Study ofRDl Program. filed l5 December 20l6. See AbdAl Ruhim Hussein Al v. Burack ()hama. cl No. 08-cv-l207 (RC L), .Vlisc. No. 08-mc-442 (TFl-l). dated 28 December 2016. Appellate Exhibit 286T Page 3 of 4 PUBLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 5 of 5 PUBLIC RELEASE e. The Commission agrees with the Government?s assertion in AE 2861. that it is necessary to preserve the status quo regarding possession of the SSC I report pending completion of discovery and resolution ofthe issues raised in the AB 286 series. 6. Ruling. a. The Commission motion to compel discovery ofthe SSCI Report is DEFERRED. b. The Defense motion to order the Government to ?le the SSCI Report with the Commission ex parte and under seal so it can be made part of the appellate record and be produced at a later date is GRANTED IN PART as provided in paragraph 7 ofthis Order. 7. Order. a. The Government shall ensure the preserves a copy of the full SSCI Report pending completion of discovery and litigation ofissues raised in the 286 series. b. This Preservation Order will remain in effect until otherwise ordered by this Commission or other Court of competent jurisdiction. So ORDERED this 10th day ofJanuary. 2017. JAMES L. POHL COL. JA. USA Military Judge Appellate Exhibit 286T Page 4 of 4 PUBLIC RELEASE Case Document 270-2 Filed 01/13/17 Page 1 of 2 EXHIBIT 2 Case Document 270-2 Filed 01/13/17 Page 2 of 2 THE WHITE HOUSE WAS I NGTON December 9, 2016 The Honorable Richard Burr United States Senate Washington, DC 20510 Dear Chairman Burr: Thank you very much for your letter to the President dated December 2, 2016 regarding the Senate Select Committee on Intelligence?s full Committee Study of the Central Intelligence Agency?s Detention and Interrogation Program. I write to notify you that the full Study will be preserved under the Presidential Records Act (PRA). The determination that the Study will be preserved under the PRA has no bearing on copies of the Study currently stored at various agencies. Consistent with the authority afforded to him by the PRA, the President has informed the Archivist that access to classi?ed material, among other categories of information, should be restricted for the full twelve years allowed under the Act. At this time, we are not pursuing declassi?cation of the full Study. Thank you very much for your letter on this important issue. I have sent a similar letter to Vice Chairman einstein. Sincerely, W. Neil Eggleston Counsel to the President Case Document 270-3 Filed 01/13/17 Page 1 of 77 EXHIBIT 3 Case Document 270-3 Filed 01/13/17 Page 2 of 77 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ABD AL RAHIM HUSSEIN AL NASHIRI, Petitioner, Civil Action No. (RCL) v. Misc. No. (TFH) BARACK OBAMA, et al., Respondents. DECLARATION OF JOHN O. BRENNAN, DIRECTOR CENTRAL INTELLIGENCE AGENCY I, JOHN O. BRENNAN, hereby declare and state: I.INTRODUCTION l. I am the Director of the Central Intelligence Agency and have served in this capacity since March 5, 2013. In my capacity as DCIA, I lead the CIA and manage the Intelligence Community?s human intelligence and open source collection programs on behalf of the United States Government. Priorto serving as DCIA, I served as Assistant to the President for Homeland Security and Counterterrorism. My 25 years of earlier service with the CIA included work as a Near East and South Asia analyst; Station Chief in Saudi Arabia; and Director of the National Counterterrorism Center. 2. As Director of the CIA, I serve as the executive head of the CIA, pursuant to the National Security Act of 1947, as Case Document 270-3 Filed 01/13/17 Page 3 of 77 amended, 50 U.S.C. 3036. Pursuant to 50 U.S.C. 3036(d), I am charged with (1) collecting intelligence through human sources and other appropriate means; (2) correlating and evaluating intelligence related to national security and providing appropriate dissemination of such intelligence; (3) providing overall direction for and coordination of the collection of national intelligence outside the United States through human sources and, in coordination with other elements of the U.S. Government, ensuring that the most effective use is made of authorized collection resources and that appropriate account is taken of the risks to the United States and those involved in such collection; and (4) performing other functions and duties related to intelligence affecting national security as the PreSident or Director of National Intelligence (DNI) may direct. 3. The purpose of this declaration is to describe an order to preserve detainee?related information issued by General Mibhael V. Hayden when he was Director of the to briefly describe certain records that are subject to that preservation order; and to describe the status of the copy in the possession of the CIA of the full 6,963?page report prepared by the Senate Select Committee on Intelligence regarding the CIA's former detention and interrogation program (the ?Full Report"). Case Document 270-3 Filed 01/13/17 Page 4 of 77 The statements in this declaration are based on my personal knowledge and information made available to me in my official capacity, including review of three declarations described further below and attached as exhibits to this declaration. 5. Part I of this declaration introduces the declaration, provides an overview of the declaration and describes its purpose. Part II describes General Hayden?s preservation directive. Part provides information related to a CIA database known as Part IV provides information related . to the document entitled ?Comments on the Senate Select Committee on Intelligence's Study of the Central Intelligence Agency's Former Detention and Interrogation Program? that the CIA sent to the SSCI on June 27, 2013 (hereafter, the ?June 2013 Response?). Part provides information related to the Full Report. GENERAL 2007 PRESERVATION DIRECTIVE 6. In light of events surrounding the destruction of recordings of the interrogations of certain detainees, then? Director of the Central Intelligence Agency Michael V. Hayden issued an order to CIA personnel in 2007 to preserve and maintain all documents, information, and evidence relating to Case Document 270-3 Filed 01/13/17 Page 5 of 77 any detainee held at the United States Naval Station Guantanamo Bay, Cuba and any detainee held by the CIA. I 7. General Hayden described that order in a declaration,? signed on December 20, 2007. A true and correct copy of General Hayden?s declaration is attached as Exhibit A. The preservation order issued by General Hayden remains in force. THE RDINET DATABASE 8. From information and documents made available to me in my official capacity, including a September 16, 2016 declaration signed by Antoinette B. Shiner, Information Review Officer in the Litigation Information Review Office of the CIA, I understand that the principal and most complete repository of information related to the former detention and interrogation program is a stand-alone electronic computerdatabase referred to as was created in part to facilitated investigations into the former detention and interrogation program. It contains millions of highly classified documents, including emails, memoranda, and other sensitive records containing clasSified and compartmented information about intelligence sources and methods; pseudonyms and true names of Agency personnel, assets, and liaison Officers; and details about liaison relationships. It was also the primary repository the SSCI used to conduct its study of the former detention Case Document 270-3 Filed 01/13/17 Page 6 of 77 and interrogation program. A true and correct copy of Ms. Shiner's declaration is attached as Exhibit B. 9. contains documents, information and evidence relating to detainees held at the United States Naval Station Guantanamo Bay and detainees held by the CIA in its former' detention and interrogation program. The materials in are covered by General Hayden?s preservation directive, described above. THE JUNE 2013 RESPONSE TO A DRAFT OF THE STUDY OF THE FORMER DETENTION AND INTERROGATION PROGRAM 10. In its congressional oversight role, the SSCI advised the CIA in March 2009 that it planned to conduct a review of the former detention and interrogation program. A January 21, 2015 declaration signed by Neal Higgins, Director of the Office of Congressional Affairs, describes certain aspects of that review. A true and correct copy of Mr. Higgins? declaration (including exhibits attached thereto) is attached as Eihibit C. i 11. The SSCI transmitted a draft of its study to the CIA in December 2012. On June 27, 2013, following a thorough review, the CIA sent the SSCI a response entitled ?Comments on the Senate Select Committee on Intelligence?s Study of the Central Intelligence Agency's Former Detention and Interrogation 5 Case Document 270-3 Filed 01/13/17 Page 7 of 77 Program." The CIA released a redacted version of that June 2013 Response on December 9, 2014 and is also in possession of a full, unredacted copy of the June 2013 Response. The unredacted copy of the June 2013 Response is covered by General Hayden?s preservation directive, described above. THE FULL REPORT ON THE FORMER DETENTION AND INTERROGATION PROGRAM 12. The SSCI finalized its Full Report regarding the CIA's ?fdrmer detention and interrogation program in December 2014. Although the SSCI voted to send an Executive Summary and certain other dOCuments to the President for declassification and public release, my understanding is that the SSCI did not approve declassification or release of the Full Report. The Full Report remains classified and discusses intelligence operations, foreign relations, and other sensitive matters at length and in great detail. 13. The CIA and other Executive Branch agencies received copies of the Full Report in December 2014. The disposition of those copies is subject to ongoing Freedom of Information Act litigation. See generally ACLU v. CIA, 823 F.3d 655 (D.C. Cir. 2016). Both the CIA and the Office of Inspector General currently have in their possession a copy of the final version of the Full Report. Case Document 270-3 Filed 01/13/17 Page 8 of 77 14. I understand that the government represented to the district court in the Freedom of Information Act litigation that it would ?preserve the status quo regarding the Full Report absent either leave of court or resolution of this litigation in the government's favor.? ACLU v. CIA, No. (D.D.C.) (Dkt. No. 42, filed Feb. 6, 2015). I further understand that a certiorari petition is pending before the Supreme Court in that litigation, and the earliest possible time the case could be resolved is March 2017, which is the earliest the Supreme Court could consider the petition. See ACLU v. CIA, No. 16?629 (S. Ct.) (petition filed Nov. 9, 2016; response due Feb. 13, 2017). The government has thus pledged to preserve the copy of the report in the CIA's possession absent either leave of the court with jurisdiction over the above?mentioned FOIA case or resolution of that case in the Government?s favor. I hereby declare under penalty of perjury that the foregoing is true and correct. - ~72. Executed this L5 of January 2017. . Jo'n 0. Br nnan rector, entral Intelligence Agency Case Document 270-3 Filed 01/13/17 Page 9 of 77 Exhibit A Case Document 270-3 Filed 01/13/17 Page 10 of 77 Case 1: 05-cv-00763- .103 Document 46 Filed (2113/08 Page 17 of- 28- ch.20.2007 3.27m . . no 2492 UNITED SERIES OF ADDEALS FOR THE DISCRICT OF COLUMBIA CIRCUIT MAJID KHAN and RUBIA KHAN. as next friend, Eetitioners, NO. 07-1324 V. ROBERT M. GATES. Secretary of Defense, Respondent. . . . DECLARANION-OF GENERAL MICHAEL V. HAIDEN. USAF, DIHICTORI CENTRAL INTELLIGENCE AGENCY RAIDEN, hereby declare and state: 1. I am the Director of the Central Intelligence Agency (CIA) and have served in-thie capacity since 30 may 2006. In my capacity as Director, I lead the CIA_and menace the Intelligence Community's human intelligence end open source collection programs on behalf of the Director of National Intelligence (UNI). I have held a number of positions in the Intelligence Community, including Principal Deputy Director of national Intelligence, from April 2005 to May 2006; Director. Netionel'- Sedurity-AgencI/Chief, Central Security Service Fort george G. Heads, meryland, from March l999 to April 2005; commander of the Air Intelligence Agency and Director of the Joint Command and Control warfare Center, both heedqudrtered at . lump?ht Case Document 270-3 Filed 01/13/17 Page 11 of 77 -- Case Document 46 Filed - 8.0 2 1m. 20. 2007 18.92% Kelly Air Force Base, Texas, from January 1996 to September 1997,- and Director, Intelligence Directorate, ULS. European Command, Stuttgart, Germany, from.May 1993 to October 1995.? 2. I am a four-star general in the United States Air Force_ and have held senior staff_positions at the Pentagon, the National Security Council, and the (LS. .Embassy in Sofia, Bulgaria) as well as serving as Deputy Chief of Staff for united Nations Command and Forces Korea. I entered active duty in 1969 as a distinguished graduate of the Reserve Officer Training Corps program. . 3. I make the following statements based upon'my personal knowledge and information-provided to me in my official capacity. 4. In light of recent events surrounding the destruction- of recordings of the interrogations of detainees formerly in the custody of the CIA, I have issued an order to all CIA personnel to preserve and naintain all documents,_informationr and nevidence relating to: I . A. any detainee held at the united States Naval Base I Guantanamo Bay, Cuba; and 3. any detainee held by the CIA. This order is a continuing obligation that applies to future as well as past and present detainees. Case Document 270-3 Filed 01/13/17 Page 12 of 77 Case Document 46 Filed 02/13/08 Page 19 of 28 DEC. 20. 2007 - . N0. 2492 P. 4- I hereby deelere under penalty of perjury that the . foregoing is true and correct. I Executed this 20th day of Decembet, 2007. General? Michael Hayden, USAF Director -Central Intelligence Agency Case Document 270-3 Filed 01/13/17 Page 13 of 77 Exhibit Case Document 270-3 Filed 01/13/17 Page 14 of 77 Case Document 19-13 Filed 09/16/16 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON AT SPOKANE SULEIMAN ABDULLAH SALIM, AHMED BEN SOUD, OBAID ULLAH, (as personal Representative of GUL RAHMAN), Civil Action No. Plaintiffs, V. JAMES ELMER MITCHELL and JOHN JESSEN, Defendants. DECLARATION OF ANTOINETTE B. SHINER INFORMATION REVIEW OFFICER LITIGATION INFORMATION REVIEW OFFICE CENTRAL INTELLIGENCE AGENCY I. INTRODUCTION I, ANTOINETTE B. SHINER, hereby declare and state: .1. I currently serve as the Information Review Officer for the Litigation Information Review Office at the Central Intelligence Agency or ?Agency?). I assumed this position in January 2016. 2. Prior to becoming the IRO for the Litigation Information Review Office, I served as the IRO for the Directorate of Support for over sixteen months. In that capacity, I was responsible for making classification and release determinations for information originating within the Case Document 270-3 Filed 01/13/17 Page 15 of 77 Case Document 19-13 Filed 09/16/16 Directorate of Support. Prior to that, I was the Deputy IRO for the Director's Area of the CIA for over three years. In that role, I was responsible for making classification and release determinations for information originating within the Director?s Area, which included, among other offices, the Office of the Director of the CIA, the Office of Congressional Affairs, the Office of Public Affairs, and the Office of General Counsel. I have held other administrative and professional positions within the CIA since 1986, and have worked in the information review and release field since 2000. 3. I am a senior CIA official and hold original classification authority at the TOP SECRET level under written delegation of authority pursuant to section of Executive Order 13526, 75 Fed. Reg. 707 (Jan. 5, 2010). This means that I am authorized to assess the current, prOper classification of CIA information, up to and including TOP SECRET information, based on the classification criteria of Executive Order 13526 and applicable regulations. Among other things, I am responsible for the classification review of CIA documents and information that may be the subject of court proceedings or public requests for information under the Freedom of Information Act, 5 U.S C. 552, and the Privacy Act of 1974, 5 U.S.C. 552a. As part of my official duties, it is my responsibility to ensure that any determinations as to the release or withholding of any such 2 Case Document 270-3 Filed 01/13/17 Page 16 of 77 . Case Document 19-13 Filed 09/16/16 documents or information are proper and do not jeopardize the national security. 4. Through the exercise of my official duties, I have become familiar with this case and Defendants James Elmer Mitchell and John ?Bruce" Jessen's (?Defendants?) Motion to Compel Pursuant to Federal Rule of Civil Procedure 45 (?Defendants' Motion to Compel"). The purpose of this Declaration is to address several issues relevant to the CIA's production of documents in response to Defendants? Tbuhy (united States ex. rel. Tbuhy v. Ragen, 340 Ufs. 462 (1951)) request and non?party document subpoena, served on CIA through counsel on June 28, 2016, that were raised in Defendants' Motion to Compel. For the Court's convenience, I have divided the remainder of this declaration into two sections. Section II addresses the burdens the CIA must undertake to search for documents responsive to Defendants? Touhy request and Subpoena for the production of documents. Section explains the additional burdensome line?by?line classification review process that the CIA will need to conduct following the identification of responsive documents. II. THE SEARCH FOR RESPONSIVE RECORDS 5. On June 28, 2016, Defendants served upon the Department of Justice On behalf of the CIA, a Touhy request and subpoena for the production of documents, seeking, 3 Case Document 270-3 Filed 01/13/17 Page 17 of 77 Case Document 19-13 Filed 09/16/16 inter alia, ?all decuments relating to? 29 broad categories of information, over a period of 15 years, in the possession of the CIA. 6. After analyzing the 29 individual requests in Defendants' Touhy request and subpoena, the CIA identified its principal and most complete repository of information related to the former detention and interrogation program, as the Agency records system most likely to contain records potentially responsive to the document requests. 7. is a stand-alone electronic computer database created in part to facilitate investigations into the former detention and interrogation program. contains millions of highly classified documents, including emails, memoranda, and 1 other sensitive records containing classified and compartmented information about intelligence sources and methods; pseudonyms and true names of Agency personnel, assets, and liaison, officers; and details about liaison relationships. It was also the primary repository the Senate Select Committee on Intelligence utilized to conduct its multi?year detention and interrogation study. I 8. Due to the highly classified and sensitive nature of the documents contained within this records system has purposely been decentralized and compartmented to limit personnel access and to enhance its physical security. As a 4 Case Document 270-3 Filed 01/13/17 Page 18 of 77 Case Document 19-13 Filed 09/16/16 result, fewer than ten CIA employees and/or contractors are currently aesigned to search for documents contained within the system; however, this group is also responsible for other duties and numerous search activities. Thus, these requests are prioritized depending on the exigency or need for the information, such as ongoing or time sensitive intelligence matters. Every query of for records or information must go through this small cadre of experienced subject matter experts, who help determine the best search terms to use to locate the requested information. This small team must run every search of required by CIA and other government agencies, whether for litigation or other mission-related purposes. 9. The assigned subject matter experts conducted several searches designed to find documents responsive to Defendants} requests. Because of the breadth of Defendants' requests, the subject matter experts conducted searches for documents containing any references to Defendants or Plaintiffs. These searches utilized a variety of search terms, including both the Plaintiffs' and Defendants' names and identifiers, both individually and in combination. Those .searches are continuing and more than 35,000 potentially responsive documents have been located. Case Document 270-3 Filed 01/13/17 Page 19 of 77 Case Document 19-13 Filed 09/16/16 10. With respect to any potentially responsive documents located within a more time-consuming review process must then take place. Each document must be reviewed by the assigned subject matter expert to ensure that it is referencing the correct individual who was the target of the search. This process is to ensure that the document is potentially responsive and that only those persons with a ?need to know" the information receive it and to prevent sensitive classified? information about another person or intelligence matter from being inappropriately distributed. The process of reviewing documents to determine if they refer to the correct individual often requires careful and time?consuming review. For example, each Plaintiff in this case has several Arabic names and aliases, some of which are quite common Salim Abdullah), thereby multiplying the number of documents that must be reviewed due to various spelling and transliterations of common Arabic names. Next, the documents must be reviewed to ensure that a potentially responsive document is not a duplicate of another document already identified earlier in the review. This first?line review is cumbersome and burdensome, as many of these documents are and there are many duplicate documents within thus it is not uncommon for these reviews to take several days for even very limited search strings with limited results. By contrast, given-the large volume of potentially 6 Case Document 270-3 Filed 01/13/17 Page 20 of 77 Case Document 19-13 Filed 09/16/16 Iresponsive documents at issue in this case, it was recently estimated that one dedicated subject matter expert can review no more than approximately 1,000 documents fer responsiveness per week. At this rate, a review of the approximately 35,000 potentially responsive documents in this case would take approximately 35 man-weeks to complete. These burdens would be exponentially greater if, as I understand Defendants have requested, the CIA had to conduct searches for persons Other than the Plaintiffs and Defendants, such as other detainees or CIA personnel who participated in the former detention and interrogation program. I 11. Once this first?line review process is complete, the documents are set aside for review by Department of Justice attorneys to determine if the documents are responsive to the subpoena, thus beginning an additional layer of review. Due to the fact that contains many extremely sensitive documents, all of the potentially responsiVe documents are required to be initially treated with special storage and handling restrictions. This means, among other things, that the DOJ reviewers must acquire clearances appropriate to both enter the facility in which the documents are housed and to be permitted to use the stand-alone computer terminals within that facility to view the highly classified documents. This authorization process for DOJ's Andrew Warden alone, who already 7 Case Document 270-3 Filed 01/13/17 Page 21 of 77 Case Document 19-13 Filed 09/16/16 had appropriate seCurity clearances to access the facility, took over two weeks to complete. THE CLASSIFICATION REVIEW PROCESS 12. Once the DOJ reviewers determine which of the potentially responsive documents are responsive to the document requests, CIA officers then conduct a line-by?line classification review of each document, identifying whether any classified information can be declassified and released. In addition to the classification review, the CIA and DOJ also must conduct a privilege review to determine if the documents are -protected (in whole or in part) by one or more of the fellowing privileges and protections, in addition to the state secrets privilege: deliberative process privilege, attorney-client privilege, attorney work product doctrine, confidential informant privilege, or law enforcement privilege, among others. 13. This classification review is necessary because while over time, much information about the CIA's former detention and interrogation program has been officially declassified and publicly released, other information about the program remains highly classified. Determining whether certain information remains classified, and if so at what level of classification, can turn on subtle nuances, carefully parsed distinctions, and the context of given proposed disclosure. Case Document 270-3 Filed 01/13/17 Page 22 of 77 Case Document 19-13 Filed 09/16/16 14. The information about the program that remains classified can be divided into several categories. For example, information concerning the operation or location of any overseas' detention facilities, including the name of any country in which the detention facility was located, remains highly classified. The same is true of information regarding any foreign liaison' service's cooperation in administering or hosting any aspect of the program, from the capture and transfer of individuals, to. foreign liaison participation in any debriefing or interrogation sessions. This category also includes any names or identifying information about any foreign liaison services. 15. The liaison agreements under which the CIA works with these foreign governments require that the CIA not expose the existence of the relationship or the intelligence or assistance that was provided as part of the former detention and interrogation program. Should the identities of these foreign intelligence services or the countries in which they are located become part-of the public record, there is a high likelihood that certain liaison services will cease or restrict their current and future cooperation with the CIA. This in turn could cause irreparable damage to the CIA's ability to continue to collect valuable intelligence in those countries which might prove vital to our national security. Case Document 270-3 Filed 01/13/17 Page 23 of 77 Case Document 19-13 Filed 09/16/16 1 16. Also remaining highly classified is information regarding personnel or contractors involved in the former detention and interrogation program, including names, pseudonyms, physical descriptions, names of companies, or any other identifying information. This protection is due to grave concern for these individuals? physical safety and that of their families, should their names or identities become known to terrorist elements either in the United States or abroad, as well as the important national security interest in obtaining new personnel or contractors in the future. 17. The intelligence field is one in which disclosure of a discrete piece of information by itself may be innocuous, but its release in conjunction with other, seemingly harmless bits of information may result in the disclosure of sensitive information that could harm national security. Therefore, the classification review of documents must be thorough and exacting. In reviewing highly sensitive documents pertaining to the former detention and interrogation program, in which many prior releases of information have been made, it is often necessary to analyze considerable material beyond the particular documents reSponsive to the document request in order to ascertain whether a particular word, phrase, or sentence has been previously declassified or remains classified and/or privileged. The review of this additional material, which in IO Case Document 270-3 Filed 01/13/17 Page 24 of 77 Case Document 19-13 Filed 09/16/16 the case of the former detention and interrogation program is quite voluminous in nature, adds additional time, potentially several days, to each document review. 18. Responsive records retrieved from also often contain sensitive information from more than one CIA component. The originating component of each piece of information is uniquely knowledgeable about the kind of disclosures that could, for example, jeopardize specific intelligence sources or methods, and is therefore best qualified to determine what damage, if any, to the national security reasonably could be ?expected to result from an unauthorized release of the information. This review is critical because the Significance of one item of information often depends upon the knowledge of other items of information, the value of which cannot be considered without expertise from subject-matter experts who have knowledge of the entire landscape. For that reason, responsive documents potentially need to be referred to multiple CIA compOnents having equities in the documents, and potentially to other federal agencies that may have equities represented in the documents. 19. Upon referral, these entities must also conduct a line-by-line classification review to determine whether any information is properly exempted from disclosure. Many of the relevant CIA components' subject matter experts are also tasked Case Document 270-3 Filed 01/13/17 Page 25 of 77 Case Document 19-13 Filed 09/16/16 with mission-critical duties such as collecting, analyzing, and preparing intelligence for distribution to policymakers, and taking time away from those duties to conduct classification reviews pulls intelligence officers from the central focus of their mission for days or weeks at a time. 20. Once all reviews have been completed, individuals in my office must then incorporate all entities' recommended .redactions as appropriate into one final copy of each document. 21. Once this final copy is prepared, a senior classification review takes place, with a subject matter expert IRO reviewing each document line-by?line once again to confirm that the proposed redactions are correct and that the information being released is both unclassified and not subject to any relevant privilege. 22. Additionally, the review of classified material related to such a highly sensitive topic may in some cases require coordination with senior CIA officials as to whether the release of the information at issue reasonably could be expected to cause identifiable damage to the national security. These judgments cannot be made solely by rather, they must be made by senior officials who are actively involved in the conduct and management of intelligence collection or analytical activities. Such officials are often called upon to respond quickly to international crises and pressures, and therefore 12 Case Document 270-3 Filed 01/13/17 Page 26 of 77 Case Document 19-13 Filed 09/16/16 1 cannot, as a practical matter, instantly devote diSproportionate time and effort to all civil litigations where the CIA is a non- party without consequent damage to intelligence activities, which are this Agency?s primary responsibility. 23. The burdens of this review process are enormous. For example, the CIA released twelve documents responsive to Defendants' Touhy request on September 2, 2016. For this production alone, which did not even require the front line review process discussed above by the staff because the documents were appended to a CIA report released previously in response to a Freedom of Information Act request, the initial line-by-line classification review of the documents by my office took seven days, followed by the senior review conducted by the subject matter expert IRO, which took an additional seven days. Following that two week classification review process, review by OGC attorneys took an additional week. At that rate of review, and assuming that the IROs proCessing these documents do nothing else while this review is ongoing, the classification review and i processing of even 1,000 documents would take approximately 250 weeks to complete. And this does not take into account the fact that my office performs a wide spectrum of work on other litigation matters with pending deadlines, or the significant responsibilities of the subject matter expert IRO and the other intelligence offices we must rely on to complete the work. [3 Case Document 270-3 Filed 01/13/17 Page 27 of 77 Case Document 19-13 Filed 09/16/16 24. My office is not sufficiently staffed to devote personnel to work full-time solely on this litigation, in which CIA is not a party. Each officer in the Litigation Information Review Office maintains a full portfolio of other litigation matters with documents to review and court-ordered deadlines to meet, spanning a full range of criminal, civil and FOIA cases, including those in which the CIA is a named party. Similarly, the one subject matter expert IRO assigned to conduct senior reviews of documents related to the former detention and interrogation program is also assigned to'a variety of additional detainee?related matters and cases that require extensive classification review, including several ongoing matters that require review of approximately 30,000 pages of documents at the same time. 25. For all of the foregoing reasons, searching for responsive documents and then conducting a line-by-line classification review of potentially thousands of pages of documents responsive to a broad array of document requests over a span of 15 years, for a civil case in which CIA is not even a party, is an incredibly burdensome undertaking for both this office and this Agency. Case Document 270-3 Filed 01/13/17 Page 28 of 77 Case 2:16-mc-000360LQ Document 19-13 Filed 09/16/16 I hereby declare_under penalty of perjury that the foregoing is true and correct. Executed this day of September 2016. . .- Antoinette B. Shiner, Information Review Officer Litigation Information Review Office Central Intelligence Agency 15 Case Document 270-3 Filed 01/13/17 Page 29 of 77 Exhibit [IbouummWE-B Filled way/1157 WBOMRW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ACLU and ACLU Foundation, Plaintiffs, Civil Action No; 13?1870 (JEB) V. CENTRAL INTELLIGENCE AGENCY, et al., Defendants. DECLARATION or NEAL HIGGINS DIRECTOR, OFFICE OF CONGRESSIONAL AFEAIRS CENTRAL INTELLIGENCE AGENCY I, NEAL HIGGINS, hereby declare and state: - l. I am the Director of the Office of Congressional Affairs at the Central Intelligence Agency or ?Agency?). I joined the CIA in June 2013 after working for the Senate Select Committee on Intelligence or ?Committee?), where I served as a senior adviser to Senators Bill Nelson and Martin Heinrich, regional monitor for the Persian Gulf, and budget monitor for the Federal Bureau of Investigation. Prior to joining the SSCI staff, I served as Senator Nelson's legislative director. Earlier in my career I worked as a member of the trial team prosecuting Slobodan Milosevic and as an associate attorney at the law firm of Sullivan Cromwell LLP. cease Momma-B mamman 2. As Director of the Office of Congressional Affairs, I am the principal advisor to the Director of the CIA on all matters concerning relations with the Congress. My responsibilities include ensuring that the Congress is kept fully and currently informed of the Agency's intelligence activities via timely briefings and notifications, responding in a timely and complete fashion to congressional taskings and inquiries, tracking and advising on legislation that could affect the Agency, and educating CIA personnel about their responsibility to keep the Congress fully and currently informed. One of the congressional oversight committees with which I regularly interact in this capacity is the SSCI, which authored the document described below. 3. Through the exercise of my official duties, I am familiar with this civil action and the underlying Freedom of Information Act request. The purpose of this declaration is to explain my understanding of the creation and history of the document at issue in this litigation: the current i version of the full 6,963-page report authored by the SSCI concerning the former detention and interrogation program i (the ?Full Report"). To provide context, this declaration also discusses the Executive Summary as well as the Findings and Conclusions of the study (the ?Executive Summary?). FFIIEEHCDIZIJSIH WM7 4. As I explain in more detail below, the SSCI ?approved? drafts of the Executive Summary and Full Report (collectively, the ?Study?) in December 2012 and transmitted copies of both documents to the Executive Branch for comment. After the CIA submitted its comments, the SSCI made changes and decided in April 2014 to send an updated version of the Executive Summary -- but not the Full Report to the President for declassification. The SSCI made additional changes to the Executive Summary and Full Report during the declassification process and publicly released a redacted, declassified version of the Executive Summary in December 2014. 5. The statements in this declaration are based on my personal knowledge and information made available to me in my official capacity. SpeCifically, these assertions are drawn from my own interactions with the SSCI, consultations with other CIA officials, a review of the relevant documentary record, and other information made available to me in my official capacity. I. Plaintiffs? FOIA.Request 6. By letter dated February 13, 2013, plaintiffs requested ?disclosure of the recently adopted report of the Senate Select Committee on Intelligence relating to the CIA's post-9/ll program of rendition, detention, and interrogation." A true and correct copy of this letter is attached hereto as Exhibit A. WEED-13 H-TIGIHOJIMW WM 7 7. The Agency responded by letter dated February 22, 2013, and advised plaintiffs that the requested report was a ?Congressionally generated and controlled document that is not subject to the access provisions? and, accordingly, the CIA informed plaintiffs that it could not accept the request. A true and correct copy of this letter is attached hereto as Exhibit B. This lawsuit followed. 8. The SSCI continued to make changes to the Full Report during the pendency of this lawsuit. The Agency now has at least three different versions of the Full Report in its possession: a December 2012 version, a Summer 2014 version, and the final December 2014 version. 9. Plaintiffs submitted a new FOIA request on May 6, 2014 seeking ?the updated version of the Senate Select Committee on Intelligence?s Report.? A true and correct copy of this letter is attached hereto as Exhibit C. The Agency has not issued a substantive response to that request. The plaintiffs amended their complaint on June 5, 2014, to seek the release of the ?Updated SSCI Report.? The Agency has interpreted this to refer to the most current and final version of the Full Report the December 2014 version. I understand that the plaintiffs are no longer seeking the Executive Summary. Dm??g? Filed 01/23/15 Page 54mg 7 II. Initial Drafting of SSCI work Product 10. In its congressional oversight role, the SSCI advised the CIA in March 2009 that it planned to conduct areview of the former detention and interrogation program? At the outset, the SSCI requested access to broad categories of CIA documents related to how the program was created, operated, and maintained, which would form the basis of review. Due to the volume and the highly sensitive and compartmented nature of the classified information at issue, the CIA determined that in order to properly safeguard classified equities, the review of Agency records would need to take place at CIA facilities. 11. Following discussions with the Committee, the CIA and SSCI reached an inter-branch accommodation that respected both the President?s constitutional authorities over classified information and the Congress?s constitutional authority to conduct oversight of the Executive Branch. Under this accommodation, the CIA established a secure electronic reading room at an Agency facility where designated SSCI personnel could review these highly classified materials. In addition, the created a segregated network share drive at this facility that allowed members of the Committee and staffers to prepare and store their work product, including draft versions of the Full Report, in a secure environment. Emmi/21:14:57 W?fd? 7 12. 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 if those documents were stored on a CIA computer system or at a CIA facility. Specifically, in a June 2, 2009, letter from the SSCI Chairman and Vice Chairman to the Director of the CIA, the Committee expressly stated that the 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 explained that the ?disposition and control over these records, even after the completion of the Committee's review, lies exclusively with the Committee.? As such, the Committee stated that ?these records are not CIA records under the Freedom of Information Act or any other law? and that the CIA ?may not integrate these records into its records filing systems, and may not disseminate or copy them, or use them for any purpose without prior written authorization from the Committee.? Finally, the SSCI requested that in response to a FOIA request seeking these records, the CIA should ?respond to the request or demand based upon the understanding that these are congressional, not CIA, records." The full passage reads as follows: ?iw W136f0?87 7 Any documents generated on the [segregated shared drive], as well as any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee and will be kept at the Reading Room [at an Agency facility] solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the Committee's review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law. The CIA may not integrate these records into its records filing systems, and may not disseminate or copy them, or use them for any purpose without authorization of the Committee. The CIA will return the records to the Committee immediately upon request in a manner consistent with [security procedures outlined elsewhere]. If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records. A true and correct copy of this letter is attached hereto Ias Exhibit D. 13. 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 their work product 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 secure facilities at the U.S. Capitol complex so that the SSCI could complete the drafting process in its own workspace. Dmum??hf239=? Filed Pm 36101?7 14. CIA understands that the SSCI made changes to its work product following the transfers. Thus, it is the Agency?s understanding that the draft versions of the Full Report and Executive Summary that SSCI approved in December 2012 do not reside in the CIA facility described in the preceding paragraph. Nonetheless, the restrictions governing the SSCI's initial work product have informed how the CIA has treated versions of the work product in the Agency's possession. SSCI's Treatment of the Full Report A. December 2012: Approval and Transmission of the Initial Draft 15. On December 13, 2012, the SSCI decided in closed session to ?approve? a draft of the Study both the Executive Summary and the Full Report -- and transmit it to the Executive Branch for review. The SSCI Staff Director notified the CIA and other federal agencies of the decision by e-mail that evening. He indicated that his staff would transmit a ?limited number of hard copies? of the Study to the White House, the Office of the Director of National Intelligence, the CIA, and the Department of Justice for review. He also noted that his staff would provide copies of the Study only to specific individuals identified in advance to the Chairman. The Staff Director?s e-mail indicates that these limitations on dissemination and access were imposed pursuant to ?the motion adopted by the Committee.? A true and correct copy of this e-mail (with appropriate redactions) is attached hereto as Exhibit E. 16. Soon thereafter, the CIA provided the Committee with a list of Agency officers who would review the Executive Summary and Full Report on behalf of the CIA. The Committee approved access for these individuals for the limited purpose of providing comments in response to the Study. The CIA subsequently conducted a thorough review of the Study and drafted a response, a process that necessitated increasing the number of officers who had access to the Full Report or portions of the Full Report. However, access to that version of the document remained confined to authorized CIA personnel with the requisite security clearances and a need?to- know, and for the limited purpose of assisting the Agency in its interactions with the SSCI with respect to the Study and the Agency?s response.1 B. April 2014: Decision to Send the Executive Summary to the President for Declassification 17. The SSCI revised the Executive Summary and Full Report after considering the comments. The SSCI then met in closed session on April 3, 2014, to determine the proper disposition of those documents. The Committee ultimately 1 In addition, a small number of Agency personnel have reviewed portions of the Full Report for the limited purpose of assessing the proper classification of its contents or responding to FOIA requests. mews mammary peggeeszamm decided to approve the updated versions and to send the Executive Summary to the President for declassification and eventual public release. My understanding is that the Committee did not approve declassification or release of the Full Report. 18. Because the April 3, ?014, decision was made in closed session, the exact text of the motion approved by the Committee is not publicly available. But it is clear from the public statements of SSCI members that the Committee did not decide to declassify or release the Full Report. For example, the SSCI Chairman noted in a press release announcing the April 3 decision that the Full Report would be ?held for declassification at a later time.? A true and correct copy of the press release is attached hereto as Exhibit F. The Chairman later explained in her foreword to the Executive Summary that she ?chose not to seek declassification of the full Committee Study at this time? because ?declassification of the more than six thousand page report would have significantly delayed the release of the Executive Summary.?2 C. December 2014: SSCI's Release of the Executive Summary 19. The SSCI and the Executive Branch had many discussions after April 2014 regarding the Executive Summary, and the SSCI continued to edit the document in light of those discussions. 2 A copy of the Chairman's foreword is available on the SSCI website: 10 mama 93999140301437 It is my understanding that the SSCI also made conforming changes to the Full Report as it updated the Executive Summary. 20. When the SSCI and the Executive Branch concluded their disCussions, the Director of National Intelligence declassified a partially redacted version of the Executive Summary. The SSCI then publicly released the Executive Summary, along with minority views and the additional views of various Committee members, on December 9, 2014. To the best of my knowledge, that was the last official action of the full Committee in connection-' with its study of the detention and interrogation program. IV. The CIA's Treatment of the Full Report 21. In addition to the December 2012 draft, the SSCI Chairman transmitted at least two updated versions of the Full Report to the President and other agencies. The CIA received an updated version in the summer of 2014 and another updated version in December 2014. The December 2014 version is considered the final version of the Full Report. 22. All three versions of the Full Report are marked TOP SECRET, with additional access restrictions noted based on the sensitive compartmented information contained in them. The Full Report discusses-intelligence operations, foreign relations, and other classified matters at length and in great detail. 23. The Agency has used the Full Report only for limited reference purposes. When the SSCI provided the CIA with a copy. 11 Document 39013 P?ggazmow 7 of the Full Report in December 2012, it did so for the sole purpose of allowing the Agency to review the document and provide comments. Indeed, the Committee placed express restrictions on dissemination of the Full Report. The CIA accordingly gave only a limited number of officers access to the December 2012 version of the Full Report for the limited purpose permitted by the SSCI: as a reference used when preparing the response. 0 24. Access to the subsequent versions transmitted in the summer of 2014 and December 2014 has been even more controlled by CIA, and their use by CIA has been limited to reference purposes. I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of January 2015. Director Office of Congressional Affa' Central Intelligence Agency 12 DDouumeh239-3 Filed 0112311157 Pamef?afi?? Exhibit A thaas Hummg midway Mai F. 30/3 Mai? lithium; "com" tumor February I4, 2013 lnfoxmation and Privacy Coordinator Central Intelligence Agency Washington, DC. 20505 Fax: 703.613.3007 To the Information and Privacy Coordinator: in?m 5m mm? The accompanying POM Request was submitted in hunt-copy fomat'as an ovcmi'ght parcel. via USPS on Fcbmary 13, 2013. At I I :07 311,233,655?; X1 this morning.) receivodvan electronic notice ?'om the USPS that a delivery- at tat-1m (tut had been CW but ?tted 31 the mailing address. A ?15? representative at the CIA's FOIA hottine informed me that a member 9 . 55" yow team watt soon? pick up the parcel the pest of?ce holding it. In the meantime. please accept this Fax vcrsion of the Request as a substitute - $5 hag-mt and bcgin processing immediately. Zac? $11 Levine "5 . int-"5v we in? mm ram ?Rf? gut American Civil Libem'cs Union Foundation [25 Broad Street 18th Floor New York, NY [0004 Tel: 212.284.7322 Fax: 212.549.2654 Email: ztevine@aclu.org . sf; 1? - rfr? '52" jig-?pugL Slz?ll?" (lumen powwow- rm 7 nominal in: wow Mn If tiara {anon ii? when-1:? mums .- ?ei?l? . ?(Vane neuritis. ?j {in-(M mama H??dmmg Pam fv February 13. 2013 Information and Privacy Coordinator Central Intelligence Agency Washington. D.C. 20505 FOIA Requester Service Center O?ice of Freedom of Information 1155 Defense Pentagon Washington, DC 20301-1155 Of?ce of lnt?onnotibn grams and Services. U.S. Deparunent of State Washington, D.C. 20522-8100 Carmen L. Mullen, Chief of Su? Of?ce of Information Policy US. Department ofJustice 1425 New York Avenue, NW, Suite 11050 Washington, 20530-0001 Re: To Whom It May Concern: This letter constitutes a request (?Inquest?) pursuant to the Freedom of Information Act S. 954552 e! 569.. and various relevant implementing regulations, see 32 CPR. 1900 (Central . Intelligence Agency); 23 C.F.R. 16.1 (Deparunent ofJustice); 32 cut. 286 (Department ofDefense): and 22 171. I0 e! seq. ODepa?ment The Request is submitted by the American Civil, Liberties Union and the Mneriean Civil Liberties UnionFoundalion (together, the or the 'Ihc Amen?een Civil Liberties Union is a non-pro?t, 26 U.5.C. 9 50l(o)(4) mmbership organization that educates the publie about the civil liberties implications of pending and pronosed state and federal logislltio . provides analysis of pending and proposed legislation. directly lobbies legislatws, and mobilize: its members to lobby their legislators. The American Civil Liberties Union Foundation is a separate 26 U.S.C. I 1 - paa7 Wt 39013 559931395? more; We? elm uni?es we :?Mln?tou seek the disclosure of?the recently adopted report are: K. . Senate Select Committee on Intelligence relating to the ClA?s post-9H] program of rendition, detention, and interrogation (the The Senare Select Committee on Intelligence voted on Thursday; December 13, 2012.10 approve a report detailing the ?ndings of its three-year investigation of the rendition. detention, and interrogation program in the years alter 9/11. According to the SSCI chairperson. the Report?which totals nearly 6,000 pages?is ?the most de?nitive review" to be conducted of the program, including the Agency ?5 use of so-called ?enhanced interrogation techniques.? Sec. Benjamin Wines. Senate Intelligence Committee Interrogation Report ApproWBut N01 Released, Lowforc", Dec. 14, 2012, http://bitJy/th wvf; Natasha Lennard; Senate-Approved CM Term-e Report Kept Under Wraps, Salon, Dog. 14, 2012, Scott Shane. Senate Panel Approves Findings Critical of Detainee Interrogatr?a N. Times. Dec. 13, 2012?. http:/InytimstdeRk; Carrie Johnson, Report Orr CM [mgrrogorion metres Revives Torture Debate, NPR. 980.13, 2012, Mark Rosenball. Senator: to Vote on Probe Interrogation Program/Routers. Dec. 6, 2012;. Committee, and Senator Carl 1min, Chairmen. Senate Armed Services Committee. Apr. 27, 2012, http://l .uaa.gov/1Kjkq0. The Report is of clear end enonnous public importance. The American public has a right to know the ?ll! truth. based on a conrprehensive government investigation. about the torture and other abusive treatment of detainees authorized by ot?cials at the highest levels of our government. and organizatiorrs in civil rights and civil liberties cases. educates the public about civil rights and civil liberties issues across the country. provides analyses of pending and proposed legislation. directly lobbies legislature. and mobilizes the American Civil Liberties Union '3 members to lobby their legislators 2. ?w?wwmv?mmaee Document 39013 mammals; According to members, the Report pins to rest-claims that the: -- use of torture led to the cepmre of'Osamu bin Laden, a topic that continues? to generate public debate; The Committee chairperson, Senator Feinsteim. has said?based on her familiarity with the Committee?s investigation-? that ?none of [the evidence that led to bin Laden] came as a remlt of harsh - - interrogation practices.? Scott Shane-and Charlie Savage, Bin Laden Raid Revives Debate on Value of Torture, NY. Times, Maya, 2011. Mark Hoscnbail, Exclusive: Sen-ate Probe Finds Little EvidenceofE?'ective ?Torture, Reuters, Apr. 7, 2012. Release of the Report is ?iercfore critical to ensure timely public access to a congressional investigative report of historic signi?cance. . Other o?icinl investigative reports have been made available to the public; . . same mm.? for example. the Senate Armed Services Committee Report, which feminism.? concerned the Department of Defense?s involvement in detainee abuses, was released in full in April 2009. The Report likewise ought to be released. Wm Requester: seek disclosure ofthc recently adopted report on the rendition, detention. and interrogation program in the years following l. With respect to the form cfproduction, see 5 U.S.C. we request that the Report be provided electronically in a mu-swchablc, Static-image format (PDF), in the best image, quality in the agency?s possession. H. mm on, We request expedited processing pursuant to 5 and 32 CPR. 28 C.F.R. 32 CPR. and 22 CPR. There is a "compelling need? for these records. as de?ned in the mono and regulations. because the interrnation requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public. about action! or alleged government nativity. 5 -U.S.C. see also 32 C.F.R. 28 CPR. 32 CPR. '22 GER. . In addition, the records sought relate to a ?1):an new: Story of general public intercs 32 CPR. (providing for expedited processing when ?the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity?); see also 32 C.F.R. 22 0.3.12. mew 5.2. Witty-elm. ?sane: ?fe ?autonomouOrganization primarily engaged in . disseminating irribmulim in order to inform lite public abom actual or alleged government activity. The ACLU is ?primarily engaged in disseminating information" within the meaning of the statute and relevant regulations. 5 32 28 CPR. 9' 32 62.17.11. 22 GER See- ACLU v. Dep 't of mm; 321 Supp. 2d 24. 30 n5 2004) (?nding that a non-pro?t, public-interest group that "gathers information of potential interest to a segment of the public, uses its editorial skills to turn- the raw material into a distinct work, and distributes that work to an audience? is ?primarily engaged in disseminating information" (iota-rial citation omitted?: see also Leadership Conference on Civil Rights v. Gomales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (?nding Leadership Conference?whose mission is ?to serve as the site of record for relevant educate the public [and] promote e?'cctive civil rights laws??-to be ?Primarily engaged in the dissemination of requests include: a paper newsletter distributed to approximately 450.000 people; a bioweeldy electronic newsletter distributed to approximately i 134:; 300,000 subscribers; published regions, books. pamphlets, and fact sheets; - 'i a Widely read biog; heavily visited websites. including an accountability a .3 microsite. and a video series. The ACLU also regularly issues press releases to call attention to documents obtained through FOIA requests. as well as other breaking news.? ACLU attorneys an": interview frequently for news stories about 2 See. eg. Release, American Civil Liberties Union, Documents Show FBI Monitored- Bay Area Occupy meenr, Sept. M. 20 l2. Press Release. American Civil Liberties Union. F014 Doc-?mean Show FBI Using "Mosque Outreach Intelligence Gathering, Man. 27, 2012, Press Release, American Civil Liberties Union. FOM Doctrinal: Show FBI Illegally Press Release. American Civil Liberties Union. POM Documents from Show Racial Pro?ling, Oct. 20. 2011. pro?ling; Press Release. Arncricnn Civil Liberties Union. Documents Obtained by ACL Show Sentiment: dimmigra?on Delainaat is Widespread National Problem, Oct. 19. 4 ?frmeiaimm?mwmo?a Damon 29913 m?amonzgiplgg ?(1.7 {2:2 documents released through ACLU mm requests} The ACLU website speci?cally includes features on information about actual or alleged government activity obtained through For example, the ACLU maintains an onl? ?Torture Database.? at . compilation of over 100,000 docmnents that allows researchers and the public to conduct sophisticated searches of FOIA docmonts relating to government policies on rendition, detention, and interrogations The . ACLU also maintains a ?Torture webpage containing commentary about the ACLU's FOIA request. press teleases. and analysis ofthc 01A documents.? ('I'h'at webpage also note: that the ACLU, in collaboration with Columbia University Press, has published a book about the docmnants obtainied' through FOIA. Sea Iameel Ja?'cr& Amrit Singh, Administration of Torture: A Documenting? Record from Washington to Abu Ghralb andBayand (Columbia Univ. Press 2007)). Similarly. the webpagc about the Office ofLegal Counsel torture memos oblained through FOIA contains commentary and analysis of the 201 Pm: lichen Auction Civil says-loin. 3 Sec. Carrie Johnson, Delay. in-Releasblg CIA Report fa Sougkc Jurloebap Warm More Jim to Review 10 'c Flnd'ngt on Dcldimre Marmot. Wash. Post, June 20. 2009 (quoting ACLU Mattel-near Ami-it Singh); Peter Finn Julie Tate. CM Mistaken -- on 'Ht?gh- Value'Dctelncq 0mm?: Shown Wash. Post. June 16. 20091quotlng ACLU. unlit attorney Ben Winner); Scott Sham. (.th Force Ditch-mare: by (11.4.. N.Y. Times, June 2009 [quoting ACLU National Security Ptojeot director Jamel lame); Joby Wanick, Like F815 CM liar UsedSmer lam, Wash. Post, Jan. 25, '2008 (quoting ACLU staff attorney Melissa Goodman}. Lhunl; and org/torturefoia. 7 5 . . 3 meme elm-Linuxreggae?aaWFJEB WWI-3 FIRMW @g?gm I addition to websites, the ACLU has produced an in?depth television series on civil liberties, which has included" analysis and explanation of infomation the ACLU has obtained through FOIA. sought for commemial use, and the Requesters plan to dism?nate the . infonmtion disclosed as a result of this Request to the public at no. cont.a B. The record saught is urgently needed to the public about actual or alleged government activity. The SSCI Report is urgently needed to inform the public about . actual or alleged government activity; moreover, this document relates to 9? breaking news story of general public interest. Speci?cally, rendition. detention and interrogatim program and its emanation of abusive techniques between 2002 and 2009. See 32 C.F.R. 23 CPR. 320.113. zesmxaxnxn); 22 can. 171.com). - interest in the conduct of the CIA Mother executive agencies with respect to individuals seized. detained, and intenngeted for techniques. Congress's investigation sets font: the most comprehensive account to date of what happened and why. and it is imperative" that its Over the past year. national news stories have highlighted the siyti?cance ot'the investigation for the public record. in the tun-up to the cammittee vote In: December, a host ofaniclea and editorials were published emplmizing how important it is for the Repon to be made public. See, 3.3.. Ed Pilkington. Senate Under Pressure to Release Mammoth Report on CIA Interrogation, The Guardian Dec. 13, 2012. http://bitly/VEChZh US Senate Panel to Vote on CIA Interrogatinm Report, APP, Dee 11, 2012. http://bitJyIZOnhlA; Carolyn In addition to the national ACLU lattices, there are :3 ACLU a?iliue and national chapter of?ces leaned throughout the uniled States and Puerto Rico. These of?ces in disseminate ACLU material to local midents. schools. and organizations through a variety ofmeans. including their own websites. publications. and newsletters. Further. the ACLU makes archived materials available at the American Civil Liberties Union -: . . I . r. em ?primes nW;Mqu1?u 4 fsamRJEB mono magnum mgmb?w we!? Lochhead. Dianne Femiein Torture Report May Con?ict with Bin-Laden Movie, SFGateBlog, Dec. 11. 2012. hum/Ibiuy/USWXPI; Matt Bewig. Senate Report an CIA Tornoe Remain Secret. Al-lGov. Dec. l0. Jim Kouri. Senate Democrats Urge Probe obe! Interrogations During Bush Yuan; Examiner. Dec. 7. 2012,?- . http://exmm/TZTQuk; Mark Hosenball. Senator: to Van: on Probe ofCM-y Interrogation Program. Reruers. Dec- 6, 2012, Editorial. Our View: Snuwe, Committee Should Release Torno'c Report. Portland Pros: Herald, Nov. 23, 20l2, http://biLIy/RYanf. For the past several weeks. nationwide media outlets have continued to can for the Report?s public release. emphasizing its m?cal importance. See, eg. Mark Hosenbal?l, CIA Nominee Hod Derailed Knowledge of "Enhanced Interrogation Techniques, Reuters, Jan. 30,. 2013. .. Man Sledge, John Brennan Nomination Seen .4: Opening to Push for CM, Tamrre Report Release, Huf?nglon Post. Jan. 8, 2013?, Cenor Does- it Matter (Nona Brennan was Complieii in Illegal TWA The Atlantic. Jan. 8, 2013, http://bitJyquxuSu; Adam Serwer, Oborna '5 CIA Pic]: to Face Qm?ans. on Torture, Mower Jones, Ian. 8. 2013, The contents of the Report will inform urgent and ongoing debate about the CIA interrogation program. The SSCI Report provides ?the public with a. comprehensive narrative of how torture i ns?inurmed itself into- us. policy,? a narrative that "is of more than historical interest? as the nation?s. lawmakers move forward. Editorial, Free the Tarmre Report, LA. Times, Apr. 27, 2012, See also Scott Shane. No Charges Filed on Harsh Tactics Used by the (.1le NY. Times, Aug. 30, 20-12, http:/lnytims/RUZNRX; Mark Hosenball. Exclusive: Senate Probe Find: Lillie Evidme ?Torture, Reuters. Apr. 27, 20? 2, http://reum/IImeH; Marcy Wheeler, Righi an Cue. the Counter-- Argument to the Torture Apology Comes Out, Empty Wheel. Apr. 27, 2012, Expedited pmcessing- should be gamed. n1. 5 Waiver or; HE 'gtion of ?g es .4. Release ofihe record is in ?republic interest We request a waiver of search, review. and reproduction fees on the era that disclosure of the requested mood is in the public interest because it is likely to. contribute signi?cantly to the public understanding of the United States government?s opemrions or activities and is not primarily in the commercial. interest of the requester. U.S.C. 32 CPR. 28 CPR. 16.11.00; 32 CPR. and 22 CPR. 171.17. meets?! 'ltji": almtt?mummu - 10131487 mamas @9525? The Report will signi?cantly contribute to public ing of the govemment's operations or activities. Moreover, disclosure is not in the commercial interest. Any information . obtained by the ACLU as result-of this POI-A request wii-l 'be available to the public at no cost. See 32 C.F.R. 28 C.F.R. 16.1 mg); 32 can. 286.2803: 22 can. 171.17. Thus, a fee waiver would ful?ll Congtess?s legislative intent in mending FOIA See Judicial Watch Inc. v. 30mm, 326 F.3d-1309, 13 12 (D.C. Cir. 2003) gress amended FOIA to ensure that it be liberally construed in favor ol?waivers for noncommercial requesm.? (internal quotation marks and citation unlined?; OPEN [Government Act of 2007.__ Pub. L. No, 110475, 2. 121 Stat. 2524 (?nding that "disclosure. not secrecy, is the dominant objective of the Act." quoting Dep ?t of Air Force v. Rose, 425 US. 352. 361 (1992)). B. The ACLU quali?es as a represemmivc ofthe news media. A waiver of search and review fees is warranted because the ACLU qualifies as a ?hpresentative of the new media? and the SSCI Report is. not sought for commercial use. 5 U.S.C-. see - also 32 C.F.R. 1.90010sz?: 7.8: GER. 16.1100; 32 C.F.R. 22 C.F.R. 171.17. Accordingb'. fees associated with-the processing 01" this request should be "limited to reasonable standard chases for document duplication.? The ACLU meets the statutory and regulation-de?nitions of a "representativeof the news media? because it is an ?entity that gathets information oi'potentiui interest to a segment of the public. uses its editorial skills to tum the raw mntetials into a distinct work, and dism'bmes that work to an audience." 5 U.S.C. see also Nat ?1 Sec. Archive v. Dep ?r ofDejf, 880 F.2d 1381, 1387 (DC. Cir. 1989); qf.? Am. Civil Liberties Union v. Dep of Justice. 321 F. Supp. 2d . monumenmn Flinn Wan/lat Warm ?Mi 95; it emu civil}. uncut? ?32. to be a "representative of the news media.? Sen. Women ?s Action Network v. Dep '1 ofDefeme, No. (MRK), 2012 WL 3683399. at ?3 (D. Conn. May 14. 2012). See also Am. Civil Liberties . . Union of Wash v. Dep't ofJusllce, No. 2011 WL 887731.?? . at ?10 (WD. Wash. Mar. 10,2011.) (?nding ACLU of Washington to bee . ?frepresentative of the news media?), reconsidered in part rm other grounds. 2011 WL 1900140 Wash, May 19, 20! Pursuam to applicable statute and regulations, we expect a determination regarding exp: 'ted processing within ten (10) calendar days. See 5, 32 28 32 C.F..R. 22 GER. If the reques: is denied in whole or in part, we ask dint you justify all withholding: by reference to speci?c exemptions to the FOIA. We also ask that you release all segregable portions material. We reserve the right to appeal a decision to Withheld any information or to deny a waiver of fees. Please ?lmish the applicable records to: Mimi-:badolahi American Civil Liberties Union 125 Broad Street intellectuals them the country becameol'melr political views. or met-lions. In addition. the Donn-lent ct? Defense did matching: the ACLU fees associated with IA request: submitted by the ACLU in April 200 June 2006, February 2006, and October 2003. The of Justice did not charge the ACLU has associated with request: submitted by the ACLU in November 2007, December 2005. and December 2004. Finally, three separate agencies?the Federal Bureau of Investigation, the Ollie: of Intelligence Policy and Review. and the Office of Information and Privacy in the Department of Justice?did not charge the ACLU fees associated with a POM request submitted by the ACLU in August 2002. 9 mama ?0600324556133 ?59969?53?m37. ?91911? .0 minim tam-memes 18th Floor New York, NY 10004 you for your prompt attention to this matter. I heroby certify that the fore my knowledge and going is true and correct to the best of belief. See 5 10 Mitra Ebadolahi American Civil Liberties Union Foundation 125 Broad Sweat 18th Floor New York, NY I 0004 Tel: 212.284.7305 Fax: '2 102.549.2654 Email: mebadolahi@aclu.org Wt 29013 F??aobal??w Exhibit CBaS?l??aswlomeRIElB Wtw? mums? may 22 February zeta Ms. Mitre =Ebadolah?i Amer?'can Civil Liberties Union Fonndation 1?25 Bread Street, New York, NY 10004 Reference: F-2013-00829 Dear Ms. Ebadolahi: This is a ?nal-response to your 13 February 2013 Freedom of Information Act; (F 01A) request. submitted on behalf of the American Civil Liberties Union Your request was received in the of?ce of the .mfomation and Privacy Coordinator on I . 1-4 February 201.3, and sought ?the disclosure of the-recently adopted report of the Senate-g Select Committee on Intelligence relating to? the post-9m program of rendition, - detention, and interrogation (the Ywhave requested a Cengressionally generated and controlled document that as I . not subject to the access provisions, Therefore, the Agency cannOt accept your] Sincerely, Michele Meeks lnfonnation and Privacy Coordinator W393 meoamsw may Exhibit tum ant 39013 00.61 9181 699: . EBEB 10:7335133oa7 Fae 11 112014015130 LEGAL DEPARTMENT May 6, 2014 Information and Privacy Coordinator Central Intelligence Agency Washington. D.C. 20505 FOIA Requester Service Center Of?ce of Freedom of Information . 155 Defense Pentagon Washington. DC 20301-1155 Of?ce of Information Programs and Services, Department of State u. I . torn rt, D.C. 20522-8100 NV it: :3 Carmen Mullen. Chief of Staff 3 At'l LI one Of?ce Of Information Policy I - ell-tens no amounts DcPamnem o:l?Justicc 51th HFRMAN 1425 New York Avenue, .W., Suite 11050 mm" Washington. DC. 20530-0001 Mint-m; women i curative warn-"m 7 "-imv um I Re: Re tUndor Free 0 oilno atio Act! rmiwmu ed'tedP cessin no; To Whom It May Concern: This letter constitutes a request (?Requ st") pursuant to the Freedom of information Act 5 US. . 552 6! 59?, and Various relevnnt implementing regulations, see 32 . 1900 (Central Intelligence Agency); 28 C.F.R. 16.1 (Dep en: oflustiee); 32 C.F.R. 286 (Department of Defense); and 22 C.F.R. 171. I 0 ct seq. of State). The Request is submitt by the American Civil Liberties Union and the American: CiVil Lib 63 Union Foundation (together, the or the ??tequcsters?T The American Civil Liberties Union is a non-pro? membenhip organization that educates the public about 9 civil libeniea implications of pending and proposed suite and federal legislation, pro cs analysis of pending and proposed legislation, directly lobbies legislators, and mo ilizce it: membent to lobby their legislators. The American Civil Liberties Union Found: ion is a separate 26 U.S.C. 26 9 501(c)(4) 1 0 UNCLASSIFIED - WEEDJB ?alumni. UNCLASSIFIED P.3111 Requesters seek the disclosure of the . rated Vet's] on of the Senate Select Committee on report,. .. of the CIA is Detention and Interrogation Program (the ?Revised Re. See Letter from Sen. Dianne Feinstein to President Barack Obama Apr. 2014), http://bitJy/OKvaw (describing the ReviSed eport). Ct. in March 2009, the Senate Select Co a 'ttee on Intelligence or ?Committee?) began an investig ?un into the ClA's post-9n I program of rendition, secret detention, torture, and other cruel], inhuman. and degrading treatment of detainees. In the . urse of its investigation. . the SSCI reviewed six million pages of gov . ent records documenting ?mm mm ?mm the treatment of detainees in CIA custody. 'l'h intent was to omen t-ouuomon produce ?a detailed, factual description of he interrogation techniques were used, the conditions under which detain - were held. and the intelligence that was?or wasn't?gained - the pregnant.? Joint Statement from Senator Dianne Feinstein, Oh man, Senate Intelligence Committee, and Senator Carl Levin. Chairman Senate Anhcd? Services Committee (Apr. 27, 20122012. the SSCI comp] its Study of the CM ?3 Detention and Interrogation Program, Which. . ans more than 6,000 pages, includes 35,000 footnotes, and cost $40. -'llion to produce (the ?initial Report"). On December 13, 2012, the . SCI formeliy adopted the Initial Report. See S. Rep. No. 1 13-7, at 13 l: . 22, 2013). The $801 subsequently disseminated the Initial Report to Executive Branch agencies. After reviewing comments by the - and minority views of Committee Republicans, the SSCI made Chang to the Initial Report, which led to the adoption ofthe Revise Report. On April 3, 2014, the SSCI voted to -- the ?Findings and Conclusions" and ?Executive Summary" of the Revised Report to the Executive Branch for deelnssit?eation review. are Press Release. Sen. Feinstein, Intelligence Committee Votes to assify Portions of Study (Apr. 3. 2014), in her transmittal letterio President Oberon. SSCI Chainmn Senator Fein in stated that the Revised Report should be viewed as ?the antho? "tative report on. the ClA's actions,? and that she would be transmitting the Revised Report to appropriate Bxecuti ve Branch agencies. See er from Sen. Feinstein to President Obamn, http://bitJy/OKvaw. 501(c)(3) orgmilzatitm that provides legal free of charge to individuals and in civil rights and civil liberties cases, .ucntes the public about civil rights and civil liberties issues across the country, and vldes analyses ot'pending and proposed legislation. UNCLASSIFIED UNCLASSIFIED TD: 7636133687 P. 4111 The Revised Report is. of clear and on nnous public importance. The American public has a right to know the ?ull truth, based on a comprehensive government investigation, ab ut the torture and other abusive treatment of detainees authorized by -?'icr'als at the highest levels of our government. The Revised Report is it cial part?of the historical record on the United States? abusive inter-reg ion practices. as well as current and future public discussion about the lA?s treatment of detainees during the administration of Preside George W. Bush. Indeed, President Obarna urged the Committee to co Jon: the Revised Report and send it to the Executive Branch for deelas i'lication, ?so that the American people can understand what happen din the past, and that c'an help guide us as we move forward." Jennifer pstein, Barrack Obama Weighs in on Senate-CM Flap, Politico, Mar. NM, eproS L. . I muunntruu According to Senator Feinstcin, the Re ised Report ?exposes brutality that stands in stark contrast to our val cs as a nation. .It chronicles a stain on our history that must nev . again be, allowed to happen.? Press Release, Sen. Feinstein, lntelli once Committee Votes to Portions of CIA Study, ov/lleOkt. In addition to chronicling the detention and torture 1" detainees, the Revised Report ?raises serious concerns about the CIA - management" of its detention and torture program. Press Release, - ens. Susan Collins and Angus King, Collins, King Announce Support or Declassi?cation of intelligence Committee Report on CIA Detenti -n at Interrogation Program (Apr. 2, 2014), http://l .use.gov/l kws9vl. . A really, the Revised Report ?concludes that the spy agency repeatedly niisl Congress, the White House, and the public about the bene?ts" of th ClA's torture program. David S. Joachim, Senate Panel Votes to Rave Report on 0.1.21. . Interrogations, N.Y. Times, Apr. 3, 2014, http: Inytims/leejlaR; see also Letter from Sen. Mark Udall to PresidentBar . Chemo, Mar. 4, 2014, http://bitJy/ lhwpU9p (noting that ?much oil?w at has been declassi?ed and released about the Operation, management I. effectiveness of the ClA?s Detention and Interrogation Program is ply wrong. These inaccuracies are detailed in the 6,300 page Cor: . ittee Release of the Revised Report is theref- critical to ensure timely public access to a congressional investigative r-ort of historic signi?cance. For much of the last decade, the . gality and wisdom of the ClA?s practices, as well as the resulting harm .. individuals? human rights, our nation's values, and our national security, h-r ve been matters of intense and ongoing public debate. A fair public dcbat of these issues must be informed by the Revised Report. Other of?cial nvestigrrtive' reports have been made available to the public: for example, he Senate Services Committee Report, which concerned Department of UNCLASSIFIED CIVII UNION relmomon - emcee Domentzewag-Fi??; UNCLASSIFIED Defense's involvement In detainee abuses, released in full in April 2009. The 8301's Revised Report likewise to be released. Rem 'eruc - Requesters seek diseloeure ot? the SSC '3 recently revised report on the rendition, detention, and interrogati . 11 program in the years following 9/11. With respect to the form ofproductio - see 5 U.S.C. we request that the Revised port be provided electronically in text-searchable, static-imam format (PDF), in the best image quality in the agency?s possession. w-li tionfor ro'. We request expedited processing puts to 5 U.S.C. 552(a)(6)(E) and 32 CPR. 28 CPR. 16.501); 32 C.F.R. and 22 LIFER. 17'! .1203). Th is a ?compelling need" for these records, as de?ned in the Statute and eguletions, because the information requested is urgently needed by organization primarily engaged in disseminating information in order 0 inform the public about actual or alleged government activity. 5 0.3. . see also 32 C.F.R. 28 C.F.R. 1 .1 32 C.F.R. 22 CPR. In addition, the records sought relate to a ?breaking news StOl'y of general pub ic interest." 32 C.F.R (providing for expedited proee sing when ?the information is relevant to a subject of public _ency concerning maetual or alleged Federal government activity?); rec to 32 CIR. 22 C.F.R. 171 . 28 CPR. A. The ACLU is an organization marily engaged in disseminating information in? or er to irmmn the public about actual or alleged gover ,enr activiot The ACLU is ?primarily engaged in (it. eminating inforhtation" within the meaning of the statute and relevant ulations. 5 32 :28 C.F.R. 32 22 .F.R. 5 17-1 See ACLU v. Dep 't quusrlce, 321 F. Supp. 2d 24, ?t 21.5 (0.0.0. 2004) (?nding that a non-pro?t, public~interest group. at ?gathers infonnation of potential interest to a segment of the public, its editorial skills to turn the raw material into a distinct work, and stributes that work to an audience" is ?primarily engaged in dissemin - information? (internal citation omitted?; see also?Leader-shgy Con/ere ce on Civil v. . Grimmer, 404 F. Supp. 26 246, 260 (D.D.C. Leadership 4 UNCLASSIFIED . 13 Flag?63551537 I 7 mm Mummzm CO 61 91 8 1 GWWM HEB UNCLASSIFIED T0: 7-35133937 Conference~whose mission is ?to serve as and up-to-the-minuto civil rights news and i- "disselninate? information regarding ch .ri? educate the public [and] promote e??ective oi ?primarily engaged in the dissemination of i so site of record for relevant i -'rmatiou? and to . ts and voting rights to rights laws??to be . mention?). Dissemination of about a activity is a critical and substantial eornponen to educate the public and promote the protection of civil liberties. The regular means of disseminating and editorinlizing information 1 requests include: a paper newsletter distribute people; a bi-weekly electronic newsletter dis 300,000 subscribers; published reports, books pamphlets, and fact sheets; a widely read biog: heavily visited websites. i cl riding an accountability micrositc, . a video series. The ACLU also mgularly issues press . leases to call attention to documents obtained through FOIA requests, a well as other breaking- news.2 ACLU attorneys are interviewed frequ ntly for news stories about documents released through ACLU FOIA req ests. 3 See, Release. American Civil Liberties Union. Bay Arm ()ccupy Movement, Sept. 14. 20i2, http://ww Release, America-n Civil Liberties Uni oil, POM rs Show FBI Using "Mosque ()urreach "far Intelligence withering, Mar. 27, 2012, - Press Release. American Civil Liberties Union. POM Docnm . Show FBI Illegally Collecting Intelligence Under Guise of "Community Out each, Dec. I. 2011, Press Release, Ant" ricon Civil Liberties Union, FOM Documents/ram Uncomtimmnol Rac' I Pro/fling. Del. 20, 20! l. show-unconstitutionai-recial- pro?ling; Press Release, American Civil Liberties Unto Documentr Obtained by ACLU Show Sexual Abuse aflmmigmllon Detainees is Widesp ad National Problem, Oct. 19. 2M 1, his-prisoners- Pret- Relc-ae, American Civil Liberties Union. New Evidence ofAbrme at Bagram Un Disclosure About Prison. Says ACLU, June 24, 2009. - :Ilw tunnelling/notional- iI-disciowre-nbout-prison- says-ad u. Sec. tag. Carrie Johnson, Delay in Releasing CIA Ian Is Sought; Juries Dep Want: More Time ro Review 10' '3 Findings on Detainn i ?anneal, Wash. Post, June 20, 2009 (quoting ACLU mffuttomoy Amrit Singh); Peter an it Julie Tate, CM Mistaken (m High-Value ?Dezm'ner. Document Show, Wash. Post June I6. 2009 (quoting ACLU staff attorney Ben Winter): Scott Shane, Lawsuits Force lcclorwar by C124, N.Y. Times, June to, 2009 (quoting ACLU Niitionnl Security -rojcet director Jumeel Jat'fer); Joby Wnrrick, Like FBI. CIA Has Used Secret ?Lellers.? ash. Post. Ian. 25, 2008 (quoting ACLU staff attorney Melissa Goodman). I acumen: Show FBI Monitored .nciu.orglnodel36742; Press 5 mezmaeseo-WB DDonumehQBQ-Ji 'C06191816Cng:53 man: Aut?lca? cam ?stunts craze-t ?attribution UNCLASSIFIED TU: 7836133607 The ACLU website speci?cally inc! about actual or alleged government octiirity ained through FOIA.4 For example, the ACLU maintains an online ?To re Database." a compilation of over 100,000 FOIA doctrinen that allows researchers and the public to conduct sophisticated searches 0 .FOIA doctunents relating to government policies on rendition, detentio and interrogation? Another example is the ?Mapping th portal, which analyzes, compiles. and makes available to th public records obtained through the FOIA requests for info ation about the racial and ethnic "mapping" of American communi es. From the Mapping the FBI portal, users can search the FOIA docurn ts by state and subject matter in addition to accessing detailed com um and: analysis about the records and government activities. Beyond bsites, the ACLU has produced an in-depth television series on civil liberties, which has included analyses and explanation of informal on the ACLU has obtained through The ACLU plans to analyze and dissc last: to the public the information gathered through this Request. record requested is not sought for commercial use, and the Requester plan to disseminate the information disclosed as a result of this Reque t. to the public at no cost.? 8. The record sought is urgentbl eded to inform the public about acmal or alleged gotten: err! activity The Revised Report is urgently needed 0 inform the public about actual or alleged government activity; morcov this document relates to a breaking news story of general public interest, peci?cally, the ClA?s rendition. detention and interrogation program nd its authorization of abusive techniques alter September 2001. ee 32 C. FR. 28 C.F.R. 32 .F.R. 22 See, tag, iamuect; national-securitylbegam-foiu; r'es2007l01Lhtn1l'. in addition to the national ACLU oil?ces, them are 5 ACLU af?liate and' national chapter ollices located throughout the United States and one Rico. These o?lces Further disseminate ACLU material to local residents. so is. and organizations through a variety of means. including their own websites, pablica one, and newsletters. Further, the AC LU makes archived materials available at the Ant lean Civil Liberties Union Archives at Princeton University Library; UNCLASSIFIED WWI-WEB W?m? WWE7 C061918l639=53 FROM: AHFNCAN LIIERTIES UNION UNCLASSIFIED T0: 703613389? We make this Request to ?rtther the pdbl?ic?s understanding of the program and the role of senior o?icials in conceiVing of and authorizing the use of abusive interrogation te hniques in the wake of September 'l l. 2001. The public, has and con ues to manifest an abiding interest in the conduct of the CIA and other ive agencies with respect to individuals seized, detained, and in rrogated for countenetrorism purposes. While U.S. intelli ence officials have acknowledged that the CIA used harsh and . ~ive interrogation techniques. Congress?s investigation sets fo - the most comprehensive account to date ol?what happened and why, an it is imperative that its ?ndings be made public. over the past eighteen months, nation news stories have highlighted the signi?cmee of the SSCI inves gation for the public record. In the run-up to the Committee 'vot?e the Initial Report in December 20l 2, a host of articles and editoria were published emphasizing how important it. is for the results of the investigation to be made public. See. Ed Se rate Under Pressure to Release Mammoth Report an CM Inter-regatta The Guardian (U .K.). Dec. 13, 20 l2, http://bitJyNEChZJ; Carolyn ehheed, Dianne Feirwtein Torture Report May Con?ict With Bin Laden ovie. SF Gate Bing. Dec. II, 2012, Matt Bewig. Se ate Report on CM Torture Techniques May Remain Secret, AllGov, Dec. 0, 2012. Jim Konn', Senate Dem crate Urge Probe Interrogations During Bus/z Years, Examiner. . 7, 2012, Mark iioscnball, Sena: rs to Vote on Probe afClA Interrogation Program, Reuters, Dec. 6. 2012, Editorial, Our View: Snowe. Committee Shoal Release Torture Report, Portland Press Herald, Nov. 23, 2.012, http://bit iy/RYant?. Similarly. during the weeks leading up and following the Committee?s declassi?cation vote, t'ralionwide= edia outlets have continued to emphasize" the critical importance 1' the Revised Report. See, e.g. Bradley Klapper, Feinstetn Asks Whit House to Edit Torture Report, Associated Press, Apr. 8, 2014, http://b t.ly/lkerBl; David S. Joachim, Senate Pane! Votes to Reveal Report (ILA. Interrogations, NY. Times, Apr. 3, 2014, http://nytims/leejla. ;Aii Watkins. Marisa Taylor, David Lightman, Senate Panel Finds CIA Illegally Interrogated Terror Suspects A?er Apr. 3, 014. lgnutius,A 7?0er :1 Debate Bennett Congress and the CIA. Wash. Post, Apr. 1. 201 Marisa Taylor David LigJ-itman, CIA 's-Harsh Interrogation Tactics More Widespread Than Thought. Senate Invest: 'ators Found; MeClatohy, Apr. 1, 2014, http://bitJy/llunoXPY; Greg Mil er. Adam Goldman, Ellen Nukashima, CIA Misled on Interrogation Program, Senate Report 7 UNCLASSIFIED moumneh?39=? Filed QMBIWW 176' (3051913153954 FROM: UNCLASSIFIED 70:7035133997 Says, Wash. Post, Mar. 31, 2014, http://wapo. iecujNM; Bradley Klapper, Senate Report: Torture Didn '1 Lead 0 Bin Laden. Associated Press, Mar. 31, 2014, http://bitJy/liSZDOt; 0.1.11. (0 Share 113 Report on Interrogatloht, http://nylims/i The contents of the Revised Report wi debate about the CIA interrogation program. provides "the public with a comprehensive n? Mazzetti, Senate Ark: .Y. Times, Dec. 17,. 2013. inform urgent and ongoing Revised Report 've of how torture insinuated itself into US. policy," at narrative hat ?is of more than historical interest" as the nation's lawmakers Free the Torture Report. LA. Times, Apr. 27, http://latms/ImBMZ9. - 'Anemcm CIVIL tinnitus omen FBUNBAIIUN A A. Release ofthc- record is in the We request a waiver of search, review, - BXpodited processing should be grant: . move forward. Edited-a], 2012. no lie interest reproduction fees on the grounds that disclosure of the requested 1' ord is in the public interest because it is likely to contribute signi?cantly of the United States government?s operations primarily in the commercial interest of the 3'2 C.F.R. and 22 CPR. 17l.l7. The Revised Report will signi?cantly understanding of the government's operations the public understanding activities and is not ester. 5 U.S.C. 28 C.F.R. 16.1106; 32 ntribute to public activities. Moreover, disclosure is not in the commercial in ereSt. Any information obtained by the ACLU as a result of this FOIA the public at .no cost. See 32 CPR. 1900.13 16.1100; 32 22 C.F.R. Thus, a fee waiver would ?xl?ll Congrc mending See Judicial Watch Inc. v. . (D.C. Cir. 2003) (?Congress amended FOIA to construed in favor of waivers for nonconunerei quotation marks and citation omitted?; OPEN Pub. L. No. 110-175, 2. 121 Stat. 2524 (?ndir secrecy, is the dominant objective of the Act,?q v. Rose. 425 us. 352, 36! (1992)). equest will be available to 28 cm. 71.!7. s?s legislative intent :in 'sartl, 326 F.3d 1309, 1312 nsurc that it be liberally (internal Government Act of 2007, 13 that ?disclOsure, not voting Dep 'l of A ir Force UNCLASSIFIED - h? 0061 9181 B. The ACLU qualifies as a representative ofrhe news media. A waiver of search. and review fees is warranted because the ACLU quali?es as a ?representative of the Report is not sought for eonune'rcial use. 5 also 32 C.F.R. 5 190002000): 28 C.F.R. 22 can. 171.17. Accordingl processing of this request should be ?limited reasonable standard charges for document duplication." The ACLU meets the statutory and re tlatory de?nitions ol?a ?representative ot?the neWs media" because it is an ?entity that gathers infermation of potential interest to segment the public. uses its editorial skills to turn the raw materials into a istinct work, and distributes that work to an audience." 5 0.8-. umou also Nor '1 Sec. Archive v. 'afDq/I, 880 1989); of." Am. Civil Liberties Union v. Dep 'r 24, 30 [3.5 (D.D.C. 2004) (?nding "primhrily engaged in disseminating informat ?teprescntative of the news media? for the san reasons that it is ?primarily engaged in the dissemination of rotation.? See Elec. Privacy 1m. Ctr. v. Dep't of Deaf10-15 (D.D.C. 2003) (?nding non-profit interest grou that disseminated an electronic newsletter and published books a "representative of the news media" 1' or purposes).7 indeed, to be a ?representative of the news media." Network v. Dep ?r ofDe?mse, No. (MRK), 2012 WL 3683399, at *3 (D. Conn. May 14, 2012); see (so Am. Civil Liberries Union of Wash. v. 'r of erice, No. CD 21181;, 2011 WL 887731, at 10 (W.D. Wash. Mar. 10, 2011) (?nding A LU of Washington to be a ?representative of the news media?), reconsid ed in pan an other grounds, 201i WL 1900140 (W.D. Wash. Ma l9, 2011). AHEIECAN (IVIL Pursuant to applicable statute and regul '-ons, we expect a detennination regarding expedited processing ?thin ten calendar days. See 5 U.S.C. 32 C. .R. t} 28 United States' targeting kil Ihe Department ofJosriee I'w ling program. In June 2013, snorted a fee waiver to the A documents relating to standards govtzming intelligence interpretation ofen executive order. Since at least 20.02, Ovemment agencies. range); from the Department of the Navy to the Department ot'C trimercc have granted the ACLU fee waivers In connection with its POM requests. WW UNCLASSIFIED T0: 7335133907 13.18/11 media" and the Revised .C. see .1100; 32 CPR. . fees emaciated with the - see 2d 1381, 1387 (DC. Cir. 321 F. Supp. 2d blic interest group to be The ACLU is a ACLU recently was held . Women ?3 Action it. pending to requests are 20w, the State Department Nalionll Security Division of .U with respect to a request for lleetion and the Division's 9 UNCLASSIFIED - 0 R128 W8m13?-' C0 61 91 8 6 UNCLASSIFIED TD: 7835133687 C.F.R. 32 C.F.K 286.4600); 22 If the request is denied in whole or in 811, we ask that you justify all withholdings by reference to speci?c exe ptions to the FOIA. We also ask that you release all segregable ponio of otherwise exempt material. We reserve the right to appeal a decis to withhold any information or to deny a waiver 'of fees. Please ?nish the applicable records to: Ashley Gould American Civil Liberties Union . I 125 Broad Street as 18th Floor New York. NY 10004 Thank you for your prompt attention this matter. lhereby certify that the foregoing is and correct to the best of my knowledge and belief. Sec 5 .S.C. 55 18th Floor New York, NY 10004 . Tel: 212.284.1305 Fax: 212.. 549.2654 Email: ag Ptski@aclu.org to, UNCLASSIFIED ceasanaamomemzms WNW-B @3537me Exhibit - . .U yr lull.?- ?1 pr . . ?leu?zm ?Mn; ., . . Whomuamwimlhm'wmm . ?If? mmwma? . 5 . ?hm WW. mmWiqu? ?lml by? I WW . mahthoomllimdmm? I lie: qtgdummwomidm??hm ?W?m hummgg.MMuM-Wg3 Manama ofmfomudn?m?nh?d??rmm Wyatt-CIA. r: . . . . - - my Wins imam .. mmwa?'mm . 1 alumna-whim so m?bm?dwk mlip?sr?v?imo??b Meat @013 Pagge?fbph? 7 Exhibit Mummw? WW7 PEgge?5?b0W7 . of I In. of Cmum van-tonal alum. lamp"; g. Inn-.1- tc?h-na- a. mulbbm?- - wmwwuom Mmdowmenzco?enband abdomen: CIASSIFIGATIQN: UNCLASSIFIED :nn- .m-hm - . .M ?44 amusemmwmam moons IMCIA. m. wmumumm inaassmm?themn?on. m. Ga?d Grannls A - ?enate' Saba Comminu on Intelligence 4 mm . UNCLASSI ED I mil-sin. gm. Ceaselmasumzwm Wt?? ?wmmw WWMW Exhibit Williams mummy Flagge47fiabil87 United States Senator Dianne Feinstein Apr 03 2014 Intelligence Committee Votes to Deelassi? Portions of CIA Study Washington?Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) released the following statement a?er the committee voted to declassify the executive summary and conclusions of its landmark report on the Detention and Interrogation Program: ?The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority?s ?ve-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees. ?The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ?This is not what Americans do. ?The?report also points to major problems with management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shews why oversight of intelligence agencies in a democratic nation is so important. "?The release of this summary and conclusions in the near future shows that this nation admits its errors, as painful as they may be, and seeks to learn from them. It is now abundantly clear that, in an effort to prevent further terrorist attacks after 9/11 and bring those responsible to justice, the CIA made serious mistakes that haunt us to this day. We are acknowledging those mistakes, and we have a continuing responsibility to make sure nothing like this ever occurs again. ?The full 6,200-page full report has been updated and will be held for declassification at a later time. ?1 want to recognize the tireless and dedicated work of the staff who produced this report over the past five years, under trying I circumstances. They have made an enormous contribution. I also thank mamas W7 Hammonm the senators who have supported this review from its beginning and have ensured that we reached this point.? Background The report describes the Detention and Interrogation Program between September 2001 and January 2009. It reviewed operations at overseas CIA clandestine detention facilities, the use of so-called ?enhanced interrogation techniques? and the conditions of the more than 100 individuals detained by CIA during that period. The executive summary, ?ndings, and conclusions?which total more than 500 pages?will be sent to the president for declassi?cation review and subsequent public release. President Obama has indicated his support of declassi?cation of these parts of the report-and CIA Director Brennan has said this will happen expeditiously. Until the declassi?cation process is complete and that portion of the report is released, it will remain classi?ed. The Senate Intelligence Committee initiated the study of Detention and Interrogation Program in March 2009. Committee staff received more than 6 million pages of materials, the overwhelming majority of which came from the CIA, but also included documents from the Departments of State, Justice and Defense. Committee staff reviewed CIA operational cables, memoranda, internal communications, photographs, ?nancial documents, intelligence analysis, transcripts and summaries of interviews conducted by the CIA inspector general while the program was ongoing and other records for the study. In December 2012, the committee approved the report with a bipartisan vote of 9-6 and sent it to the executive branch for comment. For the past several months, the committee staff has reviewed all comments by the CIA as well as minority views by committee Republicans and made changes to the report as necessary to ensure factual accuracy and clarity. Permalink: ic/indexcfm/ZO 4/4/scnate- interrogation?study Case 1:08-cv-01207-RCL Document 270-4 Filed 01/13/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ABD AL-RAHIM HASSAIN MOHAMMED AL-NASHIRI, Petitioner, v. BARACK H. OBAMA, et al., Respondents. ) ) ) ) ) ) Civil Action No. 08-cv-1207 (RCL) ) ) ) ) ) ) [PROPOSED] ORDER Upon consideration of Respondents’ Motion for Partial Reconsideration and Clarification, Respondents’ motion is hereby GRANTED and the Order dated December 28, 2016, is VACATED. It is further ORDERED that Respondents shall preserve all evidence, documents and information, now or ever in Respondents’ possession, custody, or control, relating to the Petitioner in this case. This includes, but is not limited to: 1. Central Intelligence Agency (“CIA”) Report prepared between 2012 and 2014 in response to the Senate Select Committee on Intelligence’s “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (2014), and 2. All documents referenced or otherwise relied upon in the two above mentioned reports. IT IS SO ORDERED. Date: ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE Case 1:08-cv-01207-RCL Document 270-5 Filed 01/13/17 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ABD AL-RAHIM HASSAIN MOHAMMED AL-NASHIRI, Petitioner, v. BARACK H. OBAMA, et al., Respondents. ) ) ) ) ) ) Civil Action No. 08-cv-1207 (RCL) ) ) ) ) ) ) [PROPOSED] ORDER Upon consideration of Respondents’ Motion for Partial Reconsideration and Clarification, Respondents’ motion is hereby GRANTED and the Order dated December 28, 2016, is VACATED. It is further ORDERED that Respondents shall preserve and maintain all evidence, documents, and information, now or ever in Respondents’ possession, custody, or control, relating to the torture, mistreatment, and/or abuse of individuals who have been detained at Guantanamo Bay, as well as all evidence, documents and information, now or ever in Respondents’ possession, custody or control, relating to the Petitioner in this case. This includes, but is not limited to: 1. Central Intelligence Agency Report prepared between 2012 and 2014 in response to the Senate Select Committee on Intelligence, “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (2014) (hereinafter “SSCI Report”); and 2. All documents referenced or otherwise relied upon in the two above mentioned reports. Case 1:08-cv-01207-RCL Document 270-5 Filed 01/13/17 Page 2 of 2 IT IS SO ORDERED. Date: ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE