Hina Shamsi

When Hina Shamsi argued before the D.C. Circuit on March 17, 2016, she directed the dispute toward the Senate’s finished report and the instructions for using it. The 6,963-page study had been sent to the President and to the CIA, Defense, Justice and State Departments. Senator Dianne Feinstein wanted officials to learn from it and prevent the conduct it described from recurring.

In her December 10, 2014 letter to President Barack Obama, Feinstein encouraged use of the report “as broadly as appropriate” and contemplated CIA training programs, future guidelines and procedures for executive employees, “as you see fit.” Shamsi had signed the ACLU’s opening brief with Arthur Spitzer and Ashley Gorski as co-counsel. Their argument gave those instructions legal significance: the Senate had delivered a completed institutional product for executive use, and the agencies’ copies had become agency records.

The government relied on an earlier letter, written before the investigation began. It said the Senate had reserved exclusive control over the committee’s work. Shamsi and her colleagues disputed both the reach of that original agreement and its application after the final transfer. The case required the judges to read the two letters together.

A Place to Investigate the CIA

The Senate Select Committee on Intelligence began its detention-and-interrogation study in 2009. Committee staff needed to examine millions of pages of CIA records containing highly classified information, including sensitive identities and operational locations. Before the review could proceed, the committee and the agency negotiated where the work would be done and who would control what investigators produced.

The CIA supplied a secure electronic reading room and a segregated network drive. Senators and staff could examine agency records there while preparing notes, drafts, recommendations and reports. A June 2, 2009 letter provided that committee-generated materials remained congressional records in their entirety. Their disposition and control would lie exclusively with the committee, even after its review was complete.

The CIA was to safeguard those materials as congressional records and notify the committee of outside requests for access. The arrangement protected the Senate’s work inside the agency it was investigating. For the government, it also served a broader oversight interest: Congress needed to exchange confidential material with agencies without automatically making that material subject to FOIA.

Drafting eventually moved from the CIA’s segregated drive to the committee’s secure workspace at the Capitol. Shamsi’s team read the 2009 agreement as protecting work product kept at the CIA facility. In their view, it did not settle the status of a final report completed elsewhere and later delivered to executive officials for their own institutional purposes.

From a Draft for Comment to a Study for Use

In December 2012, the committee approved an initial version and sent a limited number of copies to designated executive officials for comments and proposed edits. The Senate could accept, reject or incorporate their responses. By April 2014, it had approved an updated study and voted to seek declassification and public release of the executive summary, findings and conclusions. The full report was reserved for later treatment.

Editing continued through the year. On December 9, 2014, the declassified public package appeared as Senate Report 113-288, including the executive summary, findings, conclusions and minority views. The full study remained classified. Its thousands of additional pages set out the evidence, agency representations, internal disagreements and history of the CIA program in greater detail.

The next day’s transmittal to the President did not repeat the earlier restrictions. It urged broad use of the completed report within institutions responsible for intelligence policy, detention, law, diplomacy and oversight. Shamsi and her co-counsel contrasted that permission with the limited invitation to comment on a draft in 2012. Officials could now circulate the study for their duties, rely on it and keep it in their systems, they argued; those were powers relevant to control.

Senator John D. Rockefeller IV supported that reading in an amicus brief. He had served on the committee for fourteen years and had worked directly on the investigation, the negotiations for access and the production of the report. He described the 2009 limits as protections needed during evidence gathering. The final transfer, in his account, was intended to let executive agencies assume control and learn from the completed work.

A change in committee leadership produced conflicting instructions. In January 2015, the new chair, Richard Burr, asked for the executive copies to be returned. Feinstein, now vice chair, urged the President to retain the full report in executive systems where appropriately cleared officials could consult it.

What an Agency Record Would Permit

The Freedom of Information Act gives courts authority to order production of agency records that have been improperly withheld. Congress is excluded from the statute’s definition of an agency. A Senate document therefore does not enter the FOIA system simply because an executive agency receives a copy.

Under Supreme Court doctrine, an agency must have created or obtained the material and controlled it when the request was made. The ordinary control inquiry considers the creator’s intent, the agency’s ability to use and dispose of the record, staff reliance on it, and its integration into agency files. With congressional documents, a clear reservation of control receives special weight: the creator’s intent and the recipient’s authority can become decisive.

The agencies unquestionably possessed the report for official purposes. They rejected the ACLU’s request because, they said, possession and authorized use had not given them the Senate’s power over disclosure and final disposition. The government warned that a requester could otherwise obtain a legislative document indirectly from an agency when FOIA provided no way to compel the committee itself.

Shamsi’s argument would have brought the copies into FOIA processing. It would not have required the immediate release of every classified page. Exemptions could still protect covered material, subject to processing and judicial review; reasonably segregable, nonexempt portions would have to be considered for release. She and her colleagues were contesting the threshold that kept the report outside that process altogether.

The Earlier Letter Survives

On May 13, 2016, the D.C. Circuit affirmed dismissal in a unanimous opinion by Senior Judge Harry Edwards. The court held that the full report remained a congressional document outside FOIA. Its analysis began with the specificity of the 2009 agreement: the reservation covered notes, documents, draft and final recommendations, reports and other committee materials, and continued after the investigation ended.

For the panel, that language reached the finished study even though drafting had moved to Capitol Hill. The 2014 instructions permitted broad internal use without surrendering the Senate’s authority over public dissemination. The agencies could consult the report for training and policy while holding it, in the analogy the court drew from earlier cases, as trustees for Congress. Having a copy did not give them unrestricted power to release it, integrate it into their records, return it or otherwise dispose of it as their own.

The committee’s separate declassification decision reinforced that conclusion. It had selected the executive summary, findings and conclusions for public release; there had been no comparable decision for the full report. Rockefeller’s account of the intended transfer and the ACLU’s reading of Feinstein’s instructions did not displace the court’s interpretation of the written reservation.

Burr’s later request for the copies played no part in the holding. Because his letter came after the FOIA request and the filing of suit, the court gave it no weight as evidence of congressional control. The earlier agreement was sufficient.

A separate claim concerning the CIA’s Panetta Review had ended in the district court on deliberative-process grounds. The court accepted CIA evidence that the review consisted of unfinished drafts. Shamsi’s appeal concerned the Senate report; it did not include that separate claim.

Copies Preserved, Other Records Released

Panel and en banc rehearing ended in July 2016. Shamsi then served as Supreme Court counsel of record with Ashley Gorski, Steven R. Shapiro and Arthur Spitzer. They asked when congressional material transferred for official executive use becomes an agency record. The Supreme Court denied review on April 24, 2017, leaving the appellate judgment in place without ruling on the merits. Shamsi continued to urge the agencies holding copies to use them to prevent a repetition of the conduct documented.

Preserving the report required a different set of decisions. President Obama placed a copy among his records under the Presidential Records Act. Orders in Guantánamo litigation preserved additional copies through the Defense Department and a federal court. Most other executive agencies returned theirs at Burr’s request. Retaining those copies did not make them publicly available.

Other ACLU litigation did produce additional records. A separate suit sought documents referenced in or implicated by the public Senate report, and the CIA released more than fifty in 2016. Those disclosures expanded the underlying evidence available to readers; they did not amount to release of the committee’s full study.

Journalist Shawn Musgrave later sought the report directly from the Senate committee and its chair under a common-law right of access. That was a separate lawsuit, with different parties and counsel. The district court dismissed it on sovereign-immunity and legislative-privilege grounds. On June 18, 2024, the D.C. Circuit affirmed under the Speech or Debate Clause’s nondisclosure privilege, which barred the requested discovery and judicially compelled release. The appellate court did not decide the separate sovereign-immunity question.

That holding concerned what a court could compel. It did not make voluntary congressional release impossible. The Senate’s publication page continues to provide the December 2014 public package. At a January 2025 nomination hearing, Senator Ron Wyden asked the prospective Director of National Intelligence whether she would support declassification of the full study.

An Oath in a Familiar Courthouse

Shamsi directs the ACLU’s National Security Project, working where domestic constitutional protections meet international human rights and humanitarian law. Before taking that role, she had worked at Cleary Gottlieb, Human Rights First and the ACLU, and as a senior adviser to the U.N. Special Rapporteur on Extrajudicial Executions. At Columbia Law School, she teaches international human rights advocacy, examining the institutions, tools and strategies through which lawyers seek to enforce those protections.

In a February 2017 essay written while the report petition was still pending, Shamsi recalled returning from Dominica, where she had attended meetings and depositions in a separate case for clients alleging CIA torture. The following morning, before her naturalization ceremony, she reread Langston Hughes’s poem Let America Be America Again.

She took the citizenship oath in a New York federal courthouse where she and her colleagues had argued cases for citizens and noncitizens. “I’d planned to take the rest of the day off to celebrate, but that afternoon, I went back to work,” she wrote.