Tuesday, March 11, 2014

Meanwhile, relations are breaking down between the CIA and the Senate Intelligence Committee

I chose the Washington Post article about Senator Diane Feinstein's outraged speech accusing the CIA of breaking into the computers of the Senate Intelligence Committee. The speech, in fact, does much more than that. It airs the sheer fact that the U.S. intelligence community has operated pretty much without oversight since 9/11. Senator Feinstein describes the Senate Committee charged with overseeing the intelligence branches, and preventing abuses, as being blindsided again and again, lied and appalled at revelations when their staff painstakingly pulls together evidence of the torture involved in the "detention and interrogation program."

The resulting staff report was chilling. The interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us.
Senator Feinstein explains the heart of the accusation against the CIA, as well as some background on how difficult the CIA has made the job of investigation:
... we sent a request for documents to all relevant executive branch agencies, chiefly among them the CIA. The committee's preference was for the CIA to turn over all responsive documents to the committee's office, as had been done in previous committee investigations.

Director Panetta proposed an alternative arrangement, to provide literally millions of pages of operational cables, internal emails, memos and other documents pursuant to a committee's document request at a secure location in northern Virginia. We agreed, but insisted on several conditions and protections to ensure the integrity of this congressional investigation.

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta and I agreed in an exchange of letters that the CIA was to provide a, quote, stand-alone computer system, end quote, with a, quote, network drive segregated from CIA networks, end quote, for the committee that would only be accessed by information technology personnel at the CIA who would, quote, not be permitted to share information from the system with other CIA personnel, except as otherwise authorized by the committee, end quote.

It was this computer network that notwithstanding our agreement with Director Panetta was searched by the CIA this past January -- and once before, which I will later describe.

.... In May of 2010, the committee staff noticed that the documents had been provided for the committee -- that had been provided for the committee's review were no longer accessible.

Staff approached the CIA personnel at the off-site 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 White -- 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 page of documents that were removed in February 2010; and secondly, roughly another 50 that 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.


On May 17th, 2010, the CIA's then-director of congressional affairs apologized on behalf of the CIA for removing the documents. And that as far as I was concerned put the incidents aside. This event was separate from the documents provided that were part of the internal Panetta review, which occurred later and which I will describe next.

At some point in 2010, committee staff searching the documents that had been made available found draft versions of what is now called the internal Panetta review. We believe these documents were written by CIA personnel to summarize and analyze the materials that had been provided to the committee for its review. The Panetta review documents were no more highly classified than other information we had received for our investigation. In fact, the documents appeared based on the same information already provided to the committee. What was unique and interesting about the internal documents was not their classification level but rather their analysis and acknowledgement of significant CIA wrongdoing.

To be clear, the committee staff did not hack into CIA computers to obtain these documents, as has been suggested in the press.

The documents were identified using the search tool provided by the CIA to search the documents provided to the committee. We have no way to determine who made the internal Panetta review documents available to the committee. Further, we don't know whether the documents were provided intentionally by the CIA, unintentionally by the CIA or intentionally by a whistle-blower.

In fact, we know that over the years, on multiple occasions, the staff have asked the CIA about documents made available for our investigation. At times the CIA has simply been unaware that these specific documents were provided to the committee. And while this is alarming, it is also important to note that more than 6.2 million pages of documents have been provided. This is simply a massive amount of records.


Our work continued until December 2012, when the Intelligence Committee approved a 6,300-page committee study of the CIA's detention and interrogation program, and sent the executive report to the executive branch for comment. The CIA provided its response to the study on June 27th, 2013. As CIA Director Brennan has stated, the CIA officially agrees with some of our study, but has been reported the CIA disagrees and disputes important parts of it.

And this is important. Some of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA's own internal Panetta review. To say the least, this is puzzling. How can the CIA's official response to our study stand factually in conflict with its own internal review?


There are several reasons why the draft summary of the Panetta review was brought to our secure spaces at the Hart Building. Let me list them: One, the significance of the internal review, given disparities between it and the June 2013 CIA response to the committee study. The internal Panetta review summary, now at the secure committee office in Hart, is an especially significant document as it corroborates critical information in the -- in the committee's 6,300- page study, that the CIA's official response either objects to, denies, minimizes or ignores.

Unlike the official response, these Panetta review documents were in agreement with the committee's findings.

That's what makes them so significant and important to protect.

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 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.

In December, during an open committee hearing, Senator Mark Udall echoed this request. In early January 2014, the CIA informed the committee it would not provide the internal Panetta review to the committee, citing the deliberative nature of the document. Shortly thereafter, on January 15th, 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 off-site facility.

This search involved not only a search of documents provided by the committee by the CIA, but also a search of the standalone 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 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 now have 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.


I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither.

Besides the constitutional implications, the CIA 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.

Days after the meeting with Director Brennan, the CIA inspector general, David Buckley, learned of the CIA's search and began an investigation into CIA's activities. I have been informed that Mr. Buckley has referred the matter to the Department of Justice, given the possibility of a criminal violation by CIA personnel. ....

Weeks later, I was also told that after the inspector general reviewed the CIA's activities to the Department of Justice -- excuse me, referred the CIA's activities to the Department of Justice, the acting counsel general 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 counsel general's referral as a potential effort to intimidate this staff, and I am not taking this 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.

.... The staff members who have been working on this study and this report have devoted years of their lives to it, wading through the horrible details of a CIA program that never, never, never should have existed.

They have worked long hours and produced a report unprecedented in its comprehensive attention to detail in the history of the Senate. They are now being threatened with legal jeopardy just as final revisions to the report and being made so that parts of it can be declassified and released to the American people.

Mr. President, I felt that I needed to come to the floor today to correct the public record and to give the American people the facts about what the dedicated committee staff have been working so hard for the last several years as part of the committee's investigation.

I also want to reiterate to my colleagues my desire to have all updates to the committee report completed this month and approved for declassification. We're not going to stop. I intend to move to have the findings, conclusions and the executive summary of the report sent to the president for declassification as release to the American people. The White House has indicated publicly and to me personally that it supports declassification and release.
So Sen. Feinstein serves notice that hardball pressure will not stop the Senate Intelligence Committee from declassifying its report, or continuing to investigate the CIA, at least. Maybe the committee will take its oversight duties more seriously with the other branches as well, now that they know they can be prey as much as any other target.

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