Torture Logic

The United States District Court for the District of Columbia (Chief Judge Boasberg) granted a Department of Justice motion in a FOIA matter

                                     In the last poem of his “Four Quartets,” T.S. Eliot wrote:

                                     We shall not cease from exploration
                                     And the end of all our exploring
                                     Will be to arrive where we started
                                     And know the place for the first time.

Few litigants know this paradox of journeys as well as the parties here, who, on the heels of a prior dispute in the Second Circuit, return to the same starting point only to find the terrain much transformed.

Back in 2014, The New York Times star reporter Charlie Savage sued the Department of Justice to obtain certain records under the Freedom of Information Act. Their request? Federal Bureau of Investigation interview memoranda as well as reports from former Acting U.S. Attorney John Durham related to the criminal investigation into the Central Intelligence Agency’s rendition, detention, and interrogation program following 9/11 (as well as the Agency’s destruction of videotapes depicting its tactics). In the end, those plaintiffs came up largely empty.

Much has changed since that suit was filed, including the enactment of the FOIA Improvement Act of 2016 and the release of other public records concerning the CIA’s use of torture. In a second bid to secure the same records, The Times and Savage — now joined by another Plaintiff, longtime investigative journalist and author Scott Shane — filed suit in this Court, alleging that DOJ’s withholdings under FOIA Exemption 5 flunk the foreseeable-harm requirement introduced under the 2016 Act and are untenable in light of other relevant information that has already been disclosed to the public. The parties have now cross-moved for summary judgment on those issues, although Justice has since withdrawn its Motion in part as to the withheld interview memoranda. Finding that the disclosure of any portion of the withheld reports would result in foreseeable harm, the Court will grant DOJ’s Motion (as modified). It will return to the interview memoranda once the parties have teed up that issue down the road.

(Mike Frisch)