You Are a Lawyer in the Executive Branch

By Wells Bennett
Wednesday, January 21, 2015, 8:24 PM

Correspondence finds its way into your inbox, bearing the signature of the newly-installed Chairman of the Senate Select Committee on Intelligence, Senator Richard Burr.

His letter (per today's New York Times) last week was sent to the White House, and sets forth an unusual request: In it Senator Burr allegedly asks "the executive branch" to return all copies of the Committee's study of the CIA's detention and interrogation practices---meaning, of course, not the declassified and widely-circulated Executive Summary of the study, but the still-classified, Big Kahuna.

The question is how to proceed. Copies of the study, as you know, are in your client's possession precisely because the Committee earlier---under the leadership of its prior Chairman, Senator Dianne Feinstein---transmitted the document to the White House and some three-letter agencies. Further complicating matters is this fact: The study has been sought for some time now, in thus far unresolved litigation brought against the CIA under the Freedom of Information Act ("FOIA"). But the Committee is not subject to that famed statute---as you, and your colleagues in the Justice Department who handling the FOIA case, are also well aware.

So: Do you hand the thing over---and thus risk undermining the FOIA suit, offending a federal court, and causing a public backlash?


Odds are Senator Burr's request likely won't be honored any time soon by the executive branch. And indeed it absolutely shouldn't be, to the extent it seeks materials requested in a pending FOIA action. (And this is not to say there might not be other reasons to brush the letter aside, either; I know counsel in the high-value detainee military commission cases will want to get their hands on the study, given the defense's long-standing desire to litigate the relationship between pre-trial abuse and the possible criminal penalty.  There's also the question of precedent-setting in congressional-executive relations. I would wonder about what the long-run consequences of returning the study to the Committee might be in this respect as well.)

Perhaps we'll learn more from a CIA filing in the FOIA case---which I understand is due to be filed tomorrow.

[This post was updated this morning.]