We've written about former NSA and CIA boss Michael Hayden plenty of times around here, and the guy is practically a caricature of what you'd expect him to be. He defends the intelligence community at all costs, and is quick with baseless insults to anyone who disagrees with him, and also (laughably) seems ill-prepared to be a fortune teller. We've also written about California Senator, and head of the Senate Intelligence Committee, Dianne Feinstein, many times as well -- often watching her make similarly ridiculous claims in defense of the intelligence committee. However, as we've seen over the last few months, the one place where she seems to draw the line is with the CIA and its torture program. Feinstein, normally a staunch defender of the intelligence community, has been battling the CIA over the release of the $40 million, 6,300 page report that shows that the CIA's torture program (which she still refuses to call "torture") went way beyond what was authorized, produced no useful intelligence and resulted in the CIA lying to Congress about the program.
Since the two are normally in lock-step on various issues, it's interesting to see what happens when they differ. On Fox News over the weekend, Chris Wallace asked Hayden about the report, and Hayden pretty explicitly tossed out the ridiculous misogynistic argument that Feinstein was, effectively, too emotional to judge whether the report should be released. While he didn't make that claim exactly, he came about as close as possible to saying it without saying it:
WALLACE: But the report says that more prisoners were abused than we had previously known and that the enhanced interrogation produced little intelligence of significance.
HAYDEN: Yes. I read an article by David Ignatius earlier this week. And he said --
WALLACE: He's a columnist for The Washington Post.
HAYDEN: Right. He said that Senator Feinstein wanted a report so scathing that it would ensure that an un-American brutal program of detention interrogation would never again be considered or permitted.
Now, that sentence, that motivation for the report, Chris, may show deep emotional feeling on part of the senator. But I don't think it leads you to an objective report.
WALLACE: I mean, forgive me, because you and I both know Senator Feinstein. I have the highest regard for her. You're saying you think she was emotional in these conclusions?
HAYDEN: What I'm saying is -- first of all, Chris, you're asking me about a report. I have no idea of its content. No one responsible for that report has spoken a word of this to me, to George Tenet, to Porter Goss, to anyone else that is involved in these events. But it's very hard for me to make a judgment.
Of course, as Amy Davidson at the New Yorker notes, while the Ignatius report does suggest this as potential motivation for Feinstein, it's actually taking a Feinstein quote completely out of context. Rather than it being the motivating factor in creating the report, it was actually Feinstein's response to reading the completed report and arguing that its key findings should be made public. That is, rather than being emotionally motivated to create the report (as Hayden falsely claims), Feinstein realized that the report was so damning that it needed to be made public to stop future CIA torture and abuse.
And, really, can anyone explain what's wrong with suggesting that preventing an "un-American, brutal" torture program from happening again would be a beneficial result? Is Hayden honestly arguing that the US should continue with un-American torture efforts?
Either way, the choice of words by Hayden is deliberate and obnoxious. He's suggesting that a female Senator might be too emotionally driven and fragile to understand the "realities" of war, where people like him -- people who apparently sold out their morals long ago -- make important decisions like when and how to violate the Geneva conventions, torture people and to then lie to Congress about it. Call me crazy, but when it comes to stopping a "brutal" and "un-American" program of torturing people in violation of international law, a little emotion might be a good thing.
While the Senate Intelligence Committee voted to declassify its $40 million, 6,300 page report detailing the CIA's torture regime -- including the facts that it went beyond what was authorized, produced no useful intelligence and then the CIA lied about it all -- three members of the Committee voted against it. Senators James Risch, Dan Coats (though, who knows if he had any idea what he was voting on) and Marco Rubio all voted against declassifying, with Risch and Rubio putting out a statement claiming that the State Department didn't want the report declassified.
The Senate Intelligence Committee today voted to send a one-sided, partisan report to the CIA and White House for declassification despite warnings from the State Department and our allies indicating that declassification of this report could endanger the lives of American diplomats and citizens overseas and jeopardize U.S. relations with other countries. Therefore, we could not support declassification of this product at this time.
This raised some eyebrows, since the Obama administration has consistently said it supported declassification, even as the CIA was fighting it. Still, it's rare that the State Department would actively contradict the White House. However, the Daily Beast now has more details on the State Department's desire to block the declassification:
A senior Senate aide told The Daily Beast that the Rubio-Risch statement referred to a June 2013 classified letter to senators signed by Philip Goldberg, who at the time served as the State Department’s top intelligence official. The warning was in reference to the fact that the report contains information about cooperation with foreign intelligence agencies and the existence of still-undisclosed CIA “black site” prisons in foreign countries where abuses may have occurred.
CIA facilities implicated in the report have allegedly been located in Thailand, Poland, Lithuania, and Romania, sparking public debate and resentment against the U.S. government in those countries. But officials and senate aides said the report contains information on several more locations.
Diplomats representing those countries, aware of their vulnerability to exposure, have been quietly meeting with administration officials and lawmakers urging them to protect the secrecy of those intelligence relationships. Many foreign governments are still angry about the disclosures of NSA spying by leaker Edward Snowden.
To be fair, the article notes that the letter from Goldberg was not cleared nor reviewed by State Department leadership. Thus, it may be seen less as "the State Department" making these comments, and more as the dude who has to deal with foreign spy agencies for the State Department. But, even so, the letter is ridiculous.
There is a semi-legitimate point that the eventual disclosure of what countries helped the CIA torture people will certainly create some troubling diplomatic situations for those countries. But that's not the fault of the disclosure process. It's because (1) the CIA tortured people and (2) those other countries went along with it. Don't like that that will be disclosed? Then maybe they shouldn't have done it in the first place.
The CIA's torture program was a dark moment in American history and we don't get past it by burying it -- and the story of those who helped -- under the rug. It needs to be out in the open. Even Vice President Joe Biden has said exactly that:
“I think the only way you excise the demons is you acknowledge, you acknowledge exactly what happened straightforward,” Biden said. “The single best thing that ever happened to Germany were the war crimes tribunals, because it forced Germany to come to its milk about what in fact has happened.”
To argue that the embarrassment of admitting that we partnered up with other countries in conducting illegal torture means we shouldn't reveal the details at all goes against everything that we're supposed to stand for, in being willing and able to admit our mistakes. It's shameful that anyone at the State Department -- with or without approval from leadership -- would send such a letter, giving cowardly Senators extra cover for not approving the declassification of the report.
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?
