Earlier this week, we pointed out that many in the press had fallen for CIA Director John Brennan's "non-denial denial" over Senator Dianne Feinstein's accusations that the CIA had improperly searched the network over Senate Intelligence Committee staffers who were researching the CIA's torture program. Even more incredibly, later that same day, Brennan released the letter he had written Feinstein back in January, which actually confirms basically everything she said.
John Brennan, who has been CIA director for a year, quickly denied Feinstein's accusation on Tuesday.
He did no such thing. He denied that the CIA had "hacked" the Senate staffers, which is not what Feinstein had said at all. In fact, she explicitly stated that the CIA did not hack anyone. Instead, she said that they had improperly searched the computers, which is exactly what Brennan admitted to her in his letter, which he then released to the public.
Here's the crux of Feinstein's accusation:
Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a "search"—that was John Brennan's word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the "stand alone" and "walled-off" committee network drive containing the committee's own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee's computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA's unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA's computer network.
And here's Brennan admitting exactly that:
Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and reviewed audit data to determine whether anyone had accessed the files, which would have been unauthorized.
Is it really too much to ask the press to accurately report what Feinstein and Brennan said?
Since the Senate spying scandal story came out last week, and then went into overdrive this week with Dianne Feinstein's public statement on the details, her counterpart in the House, Rep. Mike Rogers (a staunch defender of the intelligence community) had remained mostly quiet. He finally did an interview in which he actually admits that if the CIA broke the law, "that would be a pretty horrific situation and would destroy that legislative-CIA relationship." Relationship? Then there's this nugget, where he suggests that the CIA isn't out of control and Congressional oversight is working great:
"We shouldn't taint the whole agency. The agency is well-overseen, lots of oversight, and they're doing some really incredible work to protect the United States of America."
Well-overseen? Lots of oversight? Right. So, soon after he does this interview, McClatchy releases a story about how the CIA (with support from the White House) has been withholding thousands of documents from the Senate Intelligence Committee who is investigating the CIA's torture program. This is in relation to the report that created this scandal, the supposedly scathing report that condemns the CIA for going even further in torturing people than previously reported and revealing that the torture produced no useful intelligence. And that's without knowing what's in these other documents.
The White House has been withholding for five years more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation into the now-defunct CIA detention and interrogation program, even though President Barack Obama hasn't exercised a claim of executive privilege.
In contrast to public assertions that it supports the committee's work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records, a McClatchy investigation has found.
How's that "oversight" looking now? When the CIA can just hang onto the really embarrassing stuff just because it wants to, you no longer have "oversight." You have an agency that is free to coverup whatever it would like.
As the scandal over the CIA spying on Senate staffers charged with oversight of the CIA deepens, it's now come out that the White House was fully aware that the CIA was pushing forward with a criminal complaint against those very same staffers and did nothing to stop it. It's been reported that the White House is standing strongly behind the CIA on this one, and that report confirms some of the serious Constitutional/separation of powers questions that have been raised over this incident.
Having the White House be supportive of the CIA not only spying on its overseers, but then (even more ridiculously) filing a criminal complaint against those same staffers for doing their job speaks volumes about how this White House views Congressional oversight of its giant spying machine. It views it with contempt. It only reinforces how the claims that have been stated repeatedly over the past few months that there is plenty of oversight of the intelligence community are completely hogwash.
Yesterday, after Dianne Feinstein went public with the details of the CIA spying on Senate Intelligence Committee staffers who were compiling a supposedly "devastating" report on the CIA's torture program, CIA Director John Brennan (who has been fighting hard against the release of the report) gave a non-denial denial. Later, he sent an "unclassified" memo to all CIA staffers which is being reported as an attempt to boost morale within the Agency.
However, along with that letter to staff, Brennan also (and more importantly) released his January letter to Feinstein following the in-person meeting the two had had concerning the spying allegations. This document is really Brennan trying to tell spin his side of the story. In his telling, this is entirely about the CIA's belief that there had been a security leak. Brennan notes that Feinstein had asked him to provide the full internal "Panetta review" of the same documents that the CIA had handed over to the Senate staffers, and which we now know more or less confirms their findings (and shows that the CIA -- Brennan in particular -- likely lied to the Senate in response to the Senate report). However, later comments from the Senate Intelligence Committee (Mark Udall in particular) made Brennan and others recognize that the Committee had already seen the report (they hadn't -- they'd seen a draft of it) and the CIA didn't believe that was appropriate, leading (he claims) to the search of the Intelligence Committee's walled off network to try to figure out how the "security breach" had happened.
As I relayed to you and Vice Chairman Chambliss during our I5
January meeting, I recently received information suggesting that
sensitive CIA documents that were the subject of a pending request
from the Committee may have been improperly obtained and/or
retained on the SSCI staff side of a CIA local area network, which
was set up exclusively for the Committee's RDI review and which
contains highly classified information. Consequently, I asked for
a meeting with you and the Vice Chairman as soon as possible to
share that information and to discuss the need for a review of the
system in order to assess what happened. As we know, both branches
have taken great care to establish an accommodation regarding the
Committee's access to Executive branch information on the RDI
program, and we need to ensure that what is shared is as agreed
between the branches. At the same time, and most importantly, if
the integrity of our network is flawed, we must address the
security problem immediately.
During our 15 January meeting, I explained how it came to our
attention that these documents were on the SSCI staff side of the
network. As I indicated, recent statements made by Committee staff
suggested they had in their possession a document that you
requested in a 26 November 2013 letter. In your correspondence,
you asked for "several summary documents" from what you termed an
"internal review" of the CIA RDI program initiated by Director
Panetta that purportedly came to conclusions similar to those
contained in the Committee's study on the RDI program. Senator
Udall made a similar reference to, and a request for, these
materials during the open hearing on Caroline Krass's nomination to
be the CIA's General Counsel. Senator Udall repeated his request
for these documents in a 6 January 2014 letter that he wrote to the
President. In response, I explained to both you and Senator Udall
that these requests raised significant Executive branch
confidentiality interests and outlined the reasons why we could not
turn over sensitive, deliberative, pre-decisional CIA material.
These documents were not created as part of the program that is the
subject of the Committee's oversight, but rather were written in
connection with the CIA's response to the oversight inquiry. They
include a banner making clear that they are privileged,
deliberative, pre-decisional CIA documents, to include attorney-
client and attorney work product. The Executive branch has long
had substantial separation of powers concerns about congressional
access to this kind of material.
CIA maintains a log of all materials provided to the Committee
through established protocols, and these documents do not appear in
that log, nor were they found in an audit of CIA's side of the
system for all materials provided to SSCI through established
protocols. Because we were concerned that there may be a breach or
vulnerability in the system for housing highly classified
documents, CIA conducted a limited review to determine whether
these files were located on the SSCI side of the CIA network and
reviewed audit data to determine whether anyone had accessed the
files, which would have been unauthorized. The technical personnel
conducting the audit review were asked to undertake it only if it
could be done without searching audit data relating to other files
on the SSCI side of CIA's network. That review by IT personnel
determined that the documents that you and Senator Udall were
requesting appeared to already be on the SSCI staff side of CIA's
local area network and had been accessed by staff. Only completion
of the security review will answer how SSCI staff came into
possession of the documents. After sharing this information with
you and explaining that I did not know how the materials would have
appeared on the SSCI staff side of the network, I requested that
you return any copies of these highly sensitive CIA documents
located either in the Committee reading room at the CIA facility or
in the Committee's own offices. You instructed your staff director
to collect and provide to you any copies of the documents. I
informed you that I had directed CIA staff to suspend any further
inquiry into this matter until I could speak with you.
Of course, as Feinstein pointed out in her speech, the document which Brennan seems to think the Senate staffers must have grabbed illegally was actually given to them directly by the CIA. And, to be clear, this letter actually more or less confirms what Feinstein claimed despite Brennan's bogus denial. The specific issue was that Brennan had the CIA scan the Senate staffer's supposedly private network to determine if they had access to this document in the CIA's supposed search for a security breach. Here's the key admission:
Because we were concerned that there may be a breach or
vulnerability in the system for housing highly classified
documents, CIA conducted a limited review to determine whether
these files were located on the SSCI side of the CIA network and
reviewed audit data to determine whether anyone had accessed the
files, which would have been unauthorized.
While Brennan is arguing that this is all perfectly reasonable in search of the security breach the CIA believed had occurred, that's not even close to accurate. Given the role of the Senate Intelligence Committee, being in charge of oversight of the CIA, and more specifically, these staffers directly investigating the CIA's torture program and producing a report highly critical of the CIA, Brennan had to know that any search of the staffers' network would be a massive breach. His attempt to cover it all up and make it sound reasonable actually does the opposite. If Brennan was truly concerned, it seems that the appropriate move would have been to have gone to Feinstein before conducting that search and raising his concerns.
Meanwhile, many in the press are parroting the false claim that Brennan denied Feinstein's accusations, when his actual words confirm it.
On Tuesday morning, Senator Dianne Feinstein finally got angry about the intelligence community, revealing much of the back story behind the CIA spying on Senate Intelligence Committee staffers who were investigating the CIA's torture program from the early 2000s. About an hour after her speech, CIA director John Brennan was set to give an interview to NBC's Andrea Mitchell at the Council on Foreign Relations, and of course, she asked about Feinstein's claims, leading Brennan to do what the intelligence community does best: give an answer that appears to say one thing, while really saying something entirely different, and never actually answering the question. Here's exactly what he said:
Andrea Mitchell: First of all, the topic of the morning, which you have addressed here. You said that you want to get the interrogation and detention past practices behind you. But Senator Feinstein today went to the floor. She said she did this reluctantly, that she has been dealing with you privately trying to resolve this since January and only went public today because of events, because of the referral from the inspector general of the CIA to Justice because a lawyer in CIA had referred a crimes report separately accusing the Senate of going in improperly into CIA computers.
Her claim in this scathing speech, frankly, was that the CIA has hacked into the Senate Intelligence Committee staff computers to thwart an investigation by the committee into those past practices. She also alleges that the Panetta-era report was very similar to the Senate’s conclusions about those past practices, but that you were involved in that era in the program itself and that CIA currently was trying to thwart the full review of the harshness of the detention and interrogation practices. Can you respond to that?
John Brennan: Yes. Well, first of all, we are not in any way, shape or form trying to thwart this report’s progression, release. As I said in my remarks, we want this behind us. We know that the committee has invested a lot of time, money and effort into this report, and I know that they’re determined to put it forward.
We have engaged with them extensively over the last year. We have had officers sit down with them and go over their report and point out where we believe there are factual errors or errors in judgment or assessments. So we are not trying at all to prevent its release.
As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean we wouldn’t do that. I mean that’s just beyond the -- you know, the scope of reason in terms of what we would do.
First of all, note that he is the one who is describing it as "hacking into." But that's not at all what Feinstein alleged. In fact, she said she gave her speech, in part to dispel the claims in the media that the CIA had "hacked" into their computers. Instead, the issue was that the CIA had simply been looking into what the Senate staffers had access to and what they'd been doing with it -- and also that they'd been "deleting" files that those staffers had previously been given access to. The agreement between the CIA and the Senate Intelligence Committee had been that the CIA would not interfere with the investigation, and it seems quite clear that they did that.
But instead of responding to that claim, Brennan just says "well, we didn't hack their computers." He then went on, as he did last week, to imply that the Senate staffers themselves were somehow the problem here, and that the Justice Department may find they violated the law.
But, of course, the media isn't known for its ability to handle nuance, and many interpreted Brennan's non-denial denial exactly the way he intended them to interpret it: as a denial of what Feinstein claimed, even though he said nothing of the sort. First Look Media's Dan Froomkin looked at the way different media outlets covered the story, noting that Politico, the NY Times, Reuters and the Wall Street Journal all misleadingly claimed that Brennan denied Feinstein's allegations. The Associated Press and the LA Times, on the other hand, actually informed their readers of Brennan's word games. The AP stated: "He denied that the CIA 'hacked' into the computer network in remarks on Tuesday but did not address the question of a search" (though I've found other versions of the AP report that don't have that qualification, and instead suggest Brennan denied Feinstein's claims). The LA Times gave the most accurately worded description of Brennan's statements, noting that Brennan "offered carefully worded remarks that did not dispute the actions Feinstein said had taken place, but did deny that they constituted 'spying' on the Senate."
In looking at some other sources, I see the International Business Times actually took on the issue, directly asking whether or not Brennan denied Feinstein's claims and concluding that Brennan's "statements have been vague enough to avoid addressing specific accusations by Feinstein," and further pointing out that Feinstein never actually accused the CIA of hacking, so the response was clearly misleading. That article goes so far as to highlight that "Brennan’s language, then, is somewhat troubling, as it doesn’t address exactly what he and the CIA have been accused of...." Furthermore, that report notes that in a later interview, when asked directly about the CIA deleting files, "Brennan didn’t comment on it directly, instead assuring that the matter is being dealt with." Kudos to the IB Times.
That's about the best I've seen from any of the larger "mainstream" news outlets. Time Magazine quotes Brennan out of context to imply that he's actually addressing Feinstein's allegations, rather than dancing around them -- and even worse, it did so in two separate articles. ABC News also pretends that Brennan denied Feinstein's claims even though he did not. The Boston Globe also claims Brennan's denial was about Feinstein's allegations, rather than Brennan's own made up "hacking" standard.
The Voice of America amazingly gets the story wrong on both ends. First, it claims that Feinstein said the CIA "hacked" the staffers' computers, when she explicitly stated it wasn't a hack. Second, it claims that Brennan said the CIA "did not improperly search lawmakers' computers" when he very carefully did not deny that particular claim.
All in all, if you're not following the story closely (i.e., reading the actual source materials), it appears that the vast majority of the mainstream press absolutely misled its readers in implying that Feinstein said the CIA hacked her staffers' computers and that Brennan then denied her allegations.
There’s been a lot of greatcommentaryalreadyabout the brouhaha between the Senate and the CIA regarding Senator Dianne Feinstein's allegations that the CIA has, in essence, spied on the activities of the Senate’s intelligence oversight committee. I just want to add a few thoughts.
First, it's fair to wonder why the Senate is calling its own inquiry a report on the CIA's "detention and interrogation program." Feinstein herself acknowledges her staff members have been "wading through the horrible details of a CIA program that never, never, never should have existed." A horrible program that should never have existed? Does that sound like detention and interrogation... or like torture and imprisonment?
In fact, the word "torture" appears not once in Feinstein's remarks. Think of the linguistic dexterity required to deliver a 12-page-speech about a CIA torture program and a Senate investigation into that program without even once mentioning the word torture! It would be like me writing this blog post without once mentioning the name "Feinstein." I wouldn't know how to do it, and I'm almost in awe of the propagandists who do.
Second, it was a little weird to hear Feinstein describe the "need to preserve and protect the Internal Panetta Review," if only because "preserve and protect" is the language the Constitution mandates for the President's oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." It's almost as though some people think an obligation to protect secrecy is as important as an oath to defend the Constitution.
Third, so much security! "[T]he committee staff securely transported a printed portion of the draft Internal Panetta Review from the committee's secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building." I couldn't help remembering this:
Fourth, if Senator Feinstein really is as outraged as she says, and really wants the Senate's report on the CIA's imprisonment and torture program to be declassified, all she needs to do is introduce the report into Congressional proceedings. She would have full immunity via the Constitution's speech or debate clause, and there's even precedent -- Senator Mike Gravel did precisely this with the Pentagon Papers in 1971. Or Senator Lindsey Graham, who says Congress "should declare war on the CIA" if the spying allegations are true (wouldn't an actual Congressional declaration of war be refreshing?), could do the same. Maybe the Senators are slightly less outraged than they profess?
Fifth, and most insidiously, note that the overseers of this country are still peddling the notion that torture is merely a policy choice, and not a crime. In this regard, Feinstein said, "if the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted."
No. If Feinstein or anyone else is serious about ensuring America never again engages in institutional torture, it is imperative that the Justice Department (it's gotten so hard not put square quotes around that phrase) investigate who ordered what Feinstein calls "an un-American, brutal program... that never, never, never should have existed" (hint: this would not be hard); to prosecute those people; and to imprison them if they are found guilty of violating America's lawsagainst torture. Anything else is implicit and unavoidable acknowledgment that torture is not a crime, merely a policy choice with which Dianne Feinstein happens to disagree. And the notion that merely persuading people that torture is bad is the right way to prevent it from happening again is illogical, ahistorical, and, as Feinstein might put it if she were thinking a little more clearly or had slightly different priorities, unAmerican, too.
Earlier today, we wrote about Senator Dianne Feinstein's justified anger over the CIA "spying" on the Senate Intelligence Committee staffers as they went about putting together a massive (and apparently incredibly damning) report condemning the CIA's torture program. Having now watched the whole video of her speech, as well as read the transcript, there's a lot more here to discuss. You can watch the speech yourself if you'd like, or read the full transcript, which we've embedded below:
Apparently, some of the concerns actually stem from an earlier incident, from back in 2010, during which the CIA deleted access to a bunch of documents that it had previously given to the committee staffers. This came after an initial fight over whether or not the CIA would interfere with the staffers' efforts. The Intelligence Committee eventually agreed with the CIA's request that the research work be carried out on the CIA's premises, but only after the CIA promised not to interfere and to leave the staffers alone. The staffers requested lots of documents, and the CIA did a full pure data dump on them, just handing over piles and piles of documents with no context at all. Basically, it appears the CIA sought to bury the staffers in bullshit, hoping to hide many of the important bits. In response, the staffers asked the CIA to provide an electronic search engine, in order to go through the electronic documents. Also, to keep things organized, the staffers would regularly make local copies and/or print out key documents so they could more easily organize them and keep track of them. Based on this, they noticed that some documents that had initially been available "went missing" in 2010:
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.
Apparently, this snafu was settled quietly between the intelligence committee and the CIA, with the CIA promising not to do it again.
Now, as we've been pointing out, and which was revealed by McClatchy and the NY Times last week, this latest fight is focused mostly on a draft of an internal review by the CIA of the torture program, conducted for then director Leon Panetta. Feinstein reveals some more key details about this document. First, it appears that Panetta more or less ordered the CIA to conduct what appears to be a "shadow review" of the very same documents that were being handed over to the Senate staffers. The report, as noted, appears to come to the same basic conclusions about the CIA's torture program (i.e., that it went to insane lengths and produced absolutely nothing in the way of useful intelligence). This internal review also contradicted the CIA's "official response" to the Intelligence Committee's own report.
Here's where it gets a bit trickier. When current CIA director John Brennan was asked for the full internal report, rather than the draft that the staffers had, there appears to have been a freakout at the CIA, because no one had intended for the intelligence committee to see the report, either as a draft or final report. The CIA appears to have believed that Senate staffers got access to the report illegally (hence the CIA's request that the staffers be investigated for illegal activity). Feinstein denies all of this and notes that the draft report was among the many documents provided in the data dump -- in what now looks like an accident by the CIA folks (and some contractors) in charge of compiling the data dump for the intelligence committee. The staffers "found" this document by using that search tool, which they'd asked the CIA to provide.
Feinstein goes on to reject the claims made by the CIA and CIA supporters that (1) the staffers should have known not to read the documents since they were marked "deliberative" or "privileged" and (2) that they somehow "mishandled" those classified documents by printing them out and bringing them to the Senate. As she notes, both of those claims make little sense. On the classification:
As with many other documents provided to the committee at the CIA facility, some of the Internal Panetta Review documents—some—contained markings indicating that they were “deliberative” and/or “privileged.” This was not especially noteworthy to staff. In fact, CIA has provided thousands of internal documents, to include CIA legal guidance and talking points prepared for the CIA director, some of which were marked as being deliberative or privileged.
Moreover, the CIA has officially provided such documents to the committee here in the Senate. In fact, the CIA’s official June 27, 2013, response to the committee study, which Director Brennan delivered to me personally, is labeled “Deliberative Process Privileged Document.”
We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties.
That takes care of that. On the question of mishandling the documents, the argument is not quite as strong, but still quite reasonable. Yes, it does appear that staffers did not follow the exact process for removing the documents -- in that they were supposed to first review it with CIA staffers, but the reasoning here is not so crazy. The review process was supposedly just so that the CIA could make sure that names of key people or details of operations weren't revealed. The staffers made sure that all such info had been redacted before moving the document -- and, of course, they recognized that this document was a bit of a smoking gun for the CIA in that it appeared to confirm that Director Brennan had been lying to the committee. Taking it to the CIA to review would be an odd move -- especially for staffers tasked with oversight of the CIA itself. Even more important, the staffers noticed that, like back in 2010, that draft review document suddenly "disappeared" from their computer system, despite the previous promises that the CIA wouldn't do that any more (also, she points out that the CIA had previously destroyed early evidence about their torture program). So they made the entirely reasonable decision to make a copy and store it in the Senate:
When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.
As I have detailed, the CIA has previously withheld and destroyed information about its Detention and Interrogation Program, including its decision in 2005 to destroy interrogation videotapes over the objections of the Bush White House and the Director of National Intelligence. Based on the information described above, there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.
Now, the Relocation of the Internal Panetta Review was lawful and handled in a manner consistent with its classification. No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee offices on Capitol Hill. As I mentioned before, the document was handled and transported in a manner consistent with its classification, redacted appropriately, and it remains secured—with restricted access—in committee spaces.
Now that brings us to the latest "fight." In late 2013, after the intelligence committee had seen that draft report, it had requested the final report from the CIA. That set off alarm bells in the CIA when they realized that the committee knew such a report existed, leading to a freakout and further "searching" the staffers' supposedly private computers and networks:
Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.
As I have described, this is not true. The document was made available to the staff at the offsite facility, and it was located using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation.
Of course, as Julian Sanchez points out, from this description, it certainly appears that the CIA was collecting "just metadata," and, as you may recall, Feinstein has been at the forefront of arguing that no one should care about the NSA's activities, because it's just metadata. Kinda funny how perspective shifts when it's your metadata being discussed. Suddenly, it becomes a constitutional issue:
Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.
[....]
Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
And yet that doesn't apply when the NSA spies on all Americans? Yes, Feinstein is absolutely right to be angry about this. It is an astounding breach of protocol, and given that it's the Senate Intelligence Committee's job to oversee the CIA, it appears to be quite a brazen move by the CIA to effectively undermine the Senate's oversight. It's just too bad she doesn't see how the very same things she's angry about concerning her own staff apply equally to everyone else.
There's one other issue in the speech that should be highlighted as well. She notes both of the referrals (that we've previously discussed) to the DOJ: the request to investigate the CIA's activities, and the CIA's tit-for-tat response asking for an investigation into the staffers' access and removal of the draft Panetta review. Feinstein also points out that the person at the CIA who filed the crimes report against her staffers at the DOJ was heavily involved in the torture program the report condemns, and certainly suggests that the move is much more about intimidating Senate overseers:
Weeks later, I was also told that after the inspector general referred the CIA’s activities to the Department of Justice, the acting general counsel of the CIA filed a crimes report with the Department of Justice concerning the committee staff’s actions. I have not been provided the specifics of these allegations or been told whether the department has initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.
As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.
Once again, it's worth noting that these are the very same folks that, just weeks ago, Feinstein was insisting would never abuse their positions because they're professionals. She said that on January 19th. That was just four days after CIA Director Brennan had told her about how the CIA had conducted the almost certainly illegal search on her own staffers.\
And, of course, this is the point that many of us have been making all along to Feinstein and other kneejerk defenders of the intelligence community. No matter how "professional" they are, they're still human. And given situations where their own jobs may be threatened, they're going to do what they do, and that often leads to serious abuses, like the ones that now have Feinstein so angry. That's why we're so concerned by her lack of real oversight of the intelligence community for years, as well as the rather permissive attitude that both Congress and the courts have taken for years to the intelligence community, by insisting that they only do what they do for the purposes of "national security." I'm curious what kind of "national security" reason the CIA has for spying on the very staffers who were investigating the CIA's torture program?
This morning, Senator Dianne Feinstein finally got angry over the abusive practices of the intelligence community that she oversees as head of the Senate Intelligence Committee. Historically, of course, Feinstein has used her role of "oversight" to actually do everything possible to protect and defend the various intelligence organizations. However, as we've been discussing, Feinstein has wanted to declassify and publish an apparently devastating $40 million 6,300 page report detailing how the CIA's torture program was a complete disaster. The CIA has been fighting hard against this, and in the last few weeks, it came out that the CIA also spied on Senate staffers who were working on the report, after they'd uncovered an internal CIA document that corroborated the big report, and which showed the CIA had lied to the Senate. The CIA has hit back trying to blame the staffers for "illegally" taking a classified document, but that argument rings hollow.
Feinstein is apparently quite furious about all of this and let loose this morning about the CIA, claiming that they not only spied on the staffers, but secretly removed documents from the computers the staffers were using. She directly claimed that the CIA "may have undermined the constitutional framework" of Congressional oversight. That's not a charge one throws around lightly.
Besides possible constitutional violations, Feinstein said the CIA may also have violated the Fourth Amendment, various federal laws and a presidential executive order that bars the agency from conducting domestic searches and surveillance. She said she has asked for an apology and recognition that the CIA search of the committee's computers was inappropriate, but, "I have received neither."
While this confirms much of what was reported last week, it's noteworthy that Feinstein is speaking out about it. To date, she has tried to avoid saying much about this whole debate publicly, but it appears that the issue has finally boiled over. As we noted last week, having the CIA spy on its Senate overseers (and potentially tampering with their computers to remove documents) is an incredible overreach.
Of course, wasn't it just less than two months ago that Feinstein claimed that the intelligence community would never abuse its powers, because they were made up of professionals whose activities are "strictly vetted"? Perhaps she'll now go back and admit that perhaps she shouldn't be so trusting of the intelligence community when they're spying on everyone else, beyond just her staffers.
Earlier this week, we wrote about the accusations that the CIA was spying on Senate staffers on the Senate Intelligence Committee as they were working on a massive $40 million, 6,300-page report condemning the CIA's torture program. The DOJ is apparently already investigating if the CIA violated computer hacking laws in spying on the Senate Intelligence Committee computers. The issue revolved around a draft of an internal review by the CIA, which apparently corroborates many of the Senate report's findings -- but which the CIA did not hand over to the Senate. This internal report not only supports the Senate report's findings, but also shows that the CIA has been lying in response to questions about the terror program.
In response to all of this, it appears that the CIA is attempting, weakly, to spin this as being the Senate staffers' fault, arguing that the real breach was the fact that the Senate staffers somehow broke the rules in obtaining that internal review. CIA boss John Brennan's statement hints at the fact that he thinks the real problem was with the way the staffers acted, suggesting that an investigation would fault "the legislative" branch (the Senate) rather than the executive (the CIA).
In his statement on Wednesday Brennan hit back in unusually strong terms. “I am deeply dismayed that some members of the Senate have decided to make spurious allegations about CIA actions that are wholly unsupported by the facts,” Brennan said.
“I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the executive branch or legislative branch,” Brennan continued, raising a suggestion that the Senate committee itself might have acted improperly.
A further report detailed what he's talking about. Reporters at McClatchy have revealed that the Senate staffers working on this came across the document, printed it out, and simply walked out of the CIA and over to the Senate with it, and the CIA is furious about that. Then, in a moment of pure stupidity, the CIA appears to have confronted the Senate Intelligence Committee about all of this... directly revealing that they were spying on the Committee staffers.
Several months after the CIA submitted its official response to the committee report, aides discovered in the database of top-secret documents at CIA headquarters a draft of an internal review ordered by former CIA Director Leon Panetta of the materials released to the panel, said the knowledgeable person.
They determined that it showed that the CIA leadership disputed report findings that they knew were corroborated by the so-called Panetta review, said the knowledgeable person.
The aides printed the material, walked out of CIA headquarters with it and took it to Capitol Hill, said the knowledgeable person.
“All this goes back to what is the technical structure here,” said the U.S. official who confirmed the unauthorized removal. “If I was a Senate staffer and I was given access to documents on the system, I would have a laptop that’s cleared. I would be allowed to look at these documents. But with these sorts of things, there’s generally an agreement that you can’t download or take them.”
The CIA discovered the security breach and brought it to the committee’s attention in January, leading to a determination that the agency recorded the staffers’ use of the computers in the high-security research room, and then confirmed the breach by reviewing the usage data, said the knowledgeable person.
There are many more details in the McClatchy report, which I highly recommend reading. And, yes, perhaps there's an argument that Senate staffers weren't supposed to take such documents, but the CIA trying to spin this by saying it was those staffers who were engaged in "wrongdoing" is almost certainly going to fall flat with Congress. After all, the intelligence committee is charged with oversight of the CIA, not the other way around. "You stole the documents we were hiding from you which proved we were lying, so we spied on you to find out how you did that" is not, exactly, the kind of argument that too many people are going to find compelling.
Of course, the CIA may still have one advantage on its side: there are still some in Congress who are so supportive of the intelligence community itself that even they will make excuses for the CIA spying on their own staff. At least that seems to be the response from Senate Intelligence vice chair Senator Saxby Chambliss, one of the most ardent defenders of the intelligence community he's supposed to be watching over. When asked about all of this, he seemed to be a lot more concerned about the staffers supposedly taking "classified" documents than about the CIA spying on those staffers:
“I have no comment. You should talk to those folks that are giving away classified information and get their opinion,” Intelligence Committee Vice Chairman Saxby Chambliss (R-Ga.) said when asked about the alleged intrusions.
Earlier today we covered reports of the CIA spying on the Senate Intelligence Committee as it tried to prevent the committee from releasing a supposedly "devastating" report about the CIA's torture program. That was based on a NY Times article. It appears that reporters at McClatchy were digging into the same issue and rushed out their version, which includes more details, including the fact that the CIA's inspector general has already asked the DOJ to investigate the situation.
Also, the McClatchy report ties this spying by the CIA back to some questions that Senators Ron Wyden and Mark Udall had asked John Brennan back in January. We had written about it at the time, noting that the two were clearly hinting at something having to do with the CIA spying on Americans, but it wasn't entirely clear where the questions were coming from. Reading the questions now, in light of the report of what the CIA was doing, makes the story a hell of a lot clearer. Here was Wyden's exchange with Brennan, concerning whether or not the CFAA -- the federal "anti-hacking" law -- applies to the CIA itself:
Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?
Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.
Wyden: How long would that take?
Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–
Wyden: A week?
Brennan: I think that I could get that back to you, yes.
We had thought it was a slightly odd question, since the CFAA clearly states that it "does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States." But, that's because we figured that Wyden must be talking about how the CIA was running an "authorized investigation." However, if it was illegally examining the Senate Intelligence Committee staffers' computers, that clause almost certainly doesn't apply -- meaning that the CFAA certainly could now apply. We've put a request to find out if Brennan ever did get back to Senator Wyden.Update: Brennan did reply and admitted that, yes, the CFAA does apply to the CIA, which may explain why the DOJ is now involved in this issue....
Then there's Senator Mark Udall's question to Brennan, which we assumed was connected to Wyden's. Again, in light of the new revelations, that seems likely to be the case as well:
Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?
Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.
I guess he meant "except and until we're scared shitless that you're going to expose how ridiculous, useless and illegal our torture program was."
The McClatchy report also details how the CIA accomplished this. Apparently, it had insisted that the Intelligence Committee staffers who were investigating the torture program had to work on computers at the CIA's headquarters, to make sure that classified information didn't leave the building:
The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.
I have to imagine that if you're folks at the CIA, knowing that the computers were in the same damn building, it was just too damn tempting not to go spy on them. After all, the situation was that the CIA had this internal study, which is apparently also fairly devastating and (worse) which showed that the CIA lied to the Intelligence Committee. Furthermore, it appears that the CIA had worked hard to make sure the Intelligence Committee never saw that study. Then, suddenly, in December, Senator Udall claims to have that study -- and the CIA has no idea how he got it. Given who they are, it must have been just way too tempting not to then spy on those computers in their own building. Of course, that further highlights a point we've been making for quite some time. Spies are human too -- and the temptations to abuse their power will always be there. The idea that they're immune to abuse, as put forth by some (including Senate Intelligence boss Dianne Feinstein) is just laughable. And this story just further supports that claim.
