In our post about the Senate Intelligence Committee agreeing to declassify the executive summary and major findings of the $40 million, 6,300 page "devastating" report on how the CIA tortured people for no good reason and then lied about it, we noted that there was still a battle over who would handle the declassification process. Senator Mark Udall directly noted that the White House had a choice. It could handle the declassification efforts itself, give it to the director of national intelligence... or give it over to the CIA itself. Guess which choice the White House has gone with? Yup, you guessed it: The CIA itself gets to choose which parts of the report remain secret. Considering the CIA has spent many months attacking the report, declaring that it was misleading and full of errors, it seems rather ridiculous that the Agency itself is in charge of determining what can and can't be released from the report.
While not entirely unexpected, it's good to see that the Senate Intelligence Committee has finally voted to declassify the key parts of the massive 6,300 page report on the CIA's torture program. As we've been discussing for months, this report, which cost $40 million and has been progressing for years, has been the subject of a pretty big fight from the CIA. It was expected that the Intelligence Committee would approve declassifying the executive summary -- which itself runs 480 pages -- along with "20 findings and conclusions" from the report. It seemed clear that the Democrats on the committee would support declassification (and President Obama has supported it as well), though it was unclear if Republicans would. Yesterday, we noted that Republican Senator Susan Collins announced her support for declassification, while also directly calling the CIA's program "torture," -- something that others on the committee have been afraid to do.
What's a bit surprising is that the vote wasn't even close: 11 to 3 in favor of declassifying the report, and even the highest ranking Republican, Saxby Chambliss voted in favor of declassification, though he did so under what appears to be a bit of a protest. His statement about the vote certainly sounds like sour grapes, rather than strong support:
"Today, I voted in favor of sending a portion of this majority report to the executive branch for declassification. Despite the report’s significant errors, omissions, and assumptions—as well as a lot of cherry-picking of the facts—I want the American people to be able to see it and judge for themselves. In addition, this study has been an expensive, partisan distraction that has hindered the committee’s ability to provide oversight of current national security issues, including NSA reforms, cybersecurity, Russia, Syria, and Afghanistan. I hope we can put this behind us and focus on the national security challenges at hand.
While I agree with some of the conclusions in this report, I take strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin. This claim contradicts the factual record and is just flat wrong. Intelligence was gained from detainees in the program, both before and after the application of enhanced interrogation techniques, which played an important role in disrupting terrorist plots and aided our overall counterterrorism operations over the past decade."
Another Republican on the committee, Tom Coburn also called it torture, though he insisted that the CIA did it in "good faith" and voted "present" rather than in favor of declassification.
“I agree that some of the more extreme Enhanced Interrogation Techniques (EITs) could be considered torture, and that in the future this country should not rely on such techniques. Yet, at the time, they had legal sanction. Readers of the report will make their own judgments about how they were implemented. I believe that the CIA acted imperfectly, but in good faith and under great urgency to prevent an attack from a little understood enemy that had brought devastation to our shores."
Feinstein was willing to call it "a stain on our history that must never again be allowed to happen" but refused to call it torture.
Of course, the "fight" is not over yet. There will certainly be a fight over how the declassification is handled and the public won't see the report for many, many months. Senator Mark Udall, who has been a big critic of the intelligence community for a while, has asked that the CIA not handle the declassification itself, knowing that it will over-classify:
"Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself. The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process."
Of course, throughout the past few weeks, more and more details of what's in the report have been leaked to the press (including some more leaks today, which we'll try to write about shortly)...
We've been writing quite a bit about the supposedly devastating $40 million, 6,300 page Senate report that exposes the CIA torture program for being useless -- and (perhaps more importantly) describing in detail how the CIA lied about it to everyone, including Congress. There's been something of an ongoing fight about declassifying the document, with the general thinking being that the Democrats on the Senate Intelligence Committee would likely support declassification, but the Republicans would not. But, as we'd pointed out, despite Intelligence Committee boss Senator Dianne Feinstein's condemnations of the CIA concerning the report, she still couldn't must up the courage to admit that what the CIA was doing was "torture." Instead, it was always the "detention and interrogation program." But, anyone who's looked at it knows exactly what it was: a torture program, almost certainly in violation of the Geneva conventions.
So it's great to see that a Republican Senator (remember, they were supposedly against declassification), Susan Collins, (along with Independent Senator Angus King) not only come out in favor of declassification but to directly call it torture:
We remain strongly opposed to the use of torture, believing that it is fundamentally contrary to American values. While we have some concerns about the process for developing the report, its findings lead us to conclude that some detainees were subjected to techniques that constituted torture. This inhumane and brutal treatment never should have occurred. Further, the report raises serious concerns about the CIA’s management of this program.
[....]
Torture is wrong, and we must make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again.
The CIA's torture program is a shameful moment in American history, and as a country, we cannot deal with it by pretending that it was anything other than what it was. We need to make it clear that it was torture and that it was wrong. Those responsible for the program should be held accountable. But they won't. Instead, the only person in jail... is the guy who blew the whistle on it. If we can't even admit that the torture program was a torture program, then we're bound to go down this road again.
For months now, we've been writing about how the Senate Intelligence Committee is sitting on an apparently devastating 6,300 page report, which cost taxpayers $40 million, looking into the CIA's torture program. As has recently been in the news, this still-classified report has created quite the controversy, as the CIA has been doing everything it can to block its release, including spying on Senate staffers and sending what appear to be trumped up charges against the staffers to the DOJ for investigation.
Every week there are rumors that Senator Dianne Feinstein is on the verge of really pushing to declassify the report, but it never seems to happen. Still, details from the report keep slipping out, including the latest from CBS which shows how all the claims of how the CIA's torture program was instrumental in finding Osama bin Laden are simply untrue and the torture program had little to do with it. On top of that, the Washington Post has more on how the CIA blatantly and explicitly misled Congress and the public about the torture program. Did you see that movie Zero Dark Thirty, which purported to show how torture helped find bin Laden? That was nothing more than CIA propaganda via Hollywood to try to press that story forward. The reality is something different. And something that is quite ugly for Americans: we used torture programs, which almost certainly violated the Geneva Conventions, for basically no benefit at all.
Every "example" used by defenders of the CIA to defend the torture program is apparently debunked in the report. Khalid-Sheik Mohammed -- the 9/11 mastermind who was tortured 183 times and eventually "gave up" the name of the courier, Abu Ahmed al-Kuwaiti, who eventually led to bin Laden? Turns out that he only named him well after all those waterboardings, and never revealed al-Kuwaiti's significance in any meaningful way. Other examples show that the torture program just lead various Al Qaeda officials to repeat what the CIA already knew.
Essentially, they argued, Mohammed, al-Libi and others subjected to harsh treatment confirmed only what investigators already knew about the courier. And when they denied the courier's significance or provided misleading information, investigators would only have considered that significant if they already presumed the courier's importance.
As for the guy who actually revealed the importance of al-Kuwaiti? Yes, he was tortured too, because, man, the CIA really appears to have a taste for torturing people. But he revealed the important information the day before he was tortured.
Meanwhile, the Washington Post details how the report shows that the CIA flat out lied about all of this to pretty much everyone:
“The CIA described [its program] repeatedly both to the Department of Justice and eventually to Congress as getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” said one U.S. official briefed on the report. “Was that actually true? The answer is no.”
One of the key findings was that most of the useful intelligence came via FBI questioning (without torture) prior to the CIA getting their hands on various prisoners who they then tortured. But, in order to continue the torture program, CIA officials took the information that the FBI got via standard questioning and claimed they got it via the torture efforts:
One official said that almost all of the critical threat-related information from Zubaida was obtained during the period when he was questioned by [FBI agent Ali] Soufan at a hospital in Pakistan, well before he was interrogated by the CIA and waterboarded 83 times.
Information obtained by Soufan, however, was passed up through the ranks of the U.S. intelligence community, the Justice Department and Congress as though it were part of what CIA interrogators had obtained, according to the committee report.
“The CIA conflated what was gotten when, which led them to misrepresent the effectiveness of the program,” said a second U.S. official who reviewed the report. The official described the persistence of such misstatements as among “the most damaging” of the committee’s conclusions.
Once again, it appears that the CIA's stonewalling against the release of this report is almost certainly linked to the fact that it's effectively going to portray the CIA as a bunch of torture-hungry war criminals, who still refuse to admit that this morally repugnant program was useless -- and who lied about it to Congress, the DOJ and the American public in order to keep on torturing people. Of course, some of us are old enough that we still remember when the US used to be against torture, in part because of all the years of evidence proving that it was useless in actually getting information out of people. One would have hoped that the US government, and the CIA in particular, didn't need to recreate "experiments" by committing war crimes to reprove what was already known about the effectiveness of torture.
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.
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 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.
