NEWS

Committee Chair Accuses CIA of Misconduct

By Megan Gates

Sen. Dianne Feinstein (D-CA) charged in a statement today that the CIA violated federal law and undermined Congress’s constitutional right to oversee the actions of the executive branch. Feinstein, chairwoman of the Senate Select Intelligence Committee, spoke for 40 minutes on the Senate floor this morning, addressing allegations that the CIA improperly searched the committee’s computers, which it was using to investigate the agency’s interrogation procedures at its secret Bush-era prison system.

“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,” she said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”

Feinstein used her appearance to “set the record straight” and to “provide a full accounting of the facts and history,” which she said have been distorted by anonymous reports that committee staffers hacked into the CIA.

The Investigation

The CIA’s detention and interrogation program began in 2002, but the Senate Intelligence Committee was not briefed on it until September 2006. After the initial briefing and an article in The New York Times about the program, the committee began researching the program. Those original findings were so “chilling” they prompted a comprehensive review of the CIA Detention and Interrogation Program in March 2009, Feinstein said.

To complete its review, the committee requested documents to “all relevant executive branch agencies, chiefly among them the CIA.” However, former CIA Director Leon Panetta proposed an alternative arrangement, providing millions of pages of operational cables, internal emails, memos, and other documents at a secure CIA facility in northern Virginia.

The committee ultimately agreed to Panetta’s proposal, but insisted on several conditions and protections to secure the integrity of the investigation, including a “standalone computer system” with a network drive that was segregated from the CIA’s network. This network could only be accessed by IT personnel at the CIA who would not be allowed to share information in the system with other agency personnel, unless authorized by the committee.

Along with the establishment of the off-site location, the CIA also insisted on conducting a multi-layered review of every responsive document before handing that document over to the committee. “While we viewed this as unnecessary and raised concerns that it would delay our investigation, the CIA hired a team of outside contractors—who otherwise would not have had access to these sensitive documents—to read, multiple times, each of the 6.2 million pages of documents produced, before providing them to fully-cleared committee staff conducting the committee’s oversight work,” Feinstein said. “This proved to be a slow and very expensive process.”

The CIA eventually began making documents available electronically to the committee staff at the CIA facility in mid-2009. The number of documents quickly became overwhelming and Feinstein described it as a “document dump” that the committee staff had to go through and make sense of. To help with the process, the committee staff asked the CIA to provide an electronic search tool so they could locate specific documents and when the staff found a relevant document, they would often print it or make a copy of the file on their computer so they could find it again.

Missing documents

Beginning in May 2010, the committee staff began to notice that certain documents that had been provided for review were no longer accessible. The staff approached the CIA, who initially denied the documents removal, and then blamed IT personnel for removing the documents themselves without direction. Later, the CIA said that the documents were removed on order of the White House, but the White House denied the allegation.

After a series of meetings, Feinstein learned that on two occasions CIA personnel removed committee access to documents after providing them to the committee—first in February 2010 and later in mid-May 2010.

“This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements,” Feinstein said. “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.”

Feinstein sought to resolve the matter and met with the then-White House counsel, who renewed the commitment, along with the CIA, that there would be “no further unauthorized access to the committee’s network or removal of access to CIA documents” that had already been provided to the committee.

The “Internal Panetta Review”

After Feinstein’s meetings, the committee staff resumed its investigation and during 2010 using the search tool the CIA provided, found draft versions of the “Internal Panetta Review” within the documents that the staff had been given access to. The documents were “no more highly classified” than other information the staff had received for its investigation and appeared to be based on the same information that had already been provided to the committee.

What set the Panetta Review apart, however, was that it analyzed and acknowledged “significant CIA wrongdoing,” Feinstein asserted, adding that “we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.”

As part of its standard process of review, the staff made electronic and printed copies of the Panetta Review to be referenced later. However, after the staff identified and reviewed the Panetta Review documents, access to a majority of them was revoked by the CIA.

The committee continued its work until December 2012 when it approved a 6,300-page study of the CIA’s Detention and Interrogation Program and sent the report to the executive branch for comment.

The CIA provided its response to the study the next year in June 2013 through Director John Brennan, who agreed with some aspects of the study, but disputed and disagreed with “important parts” of it. “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,'” Feinstein said. “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?”

Protective Measures

After noting the disparity between the CIA response to the study and the review, the committee staff securely transported a printed portion of the draft of the "Internal Panetta Review" from the committee’s room at the CIA facility to the secure committee spaces in the Hart Senate Office Building. This arrangement had been agreed to in 2009 between Panetta and the committee.

The committee decided to remove the documents to a Senate facility to protect them and to prevent the CIA from removing them. Then, in late 2013, Feinstein requested in writing that the CIA provide a “final and complete version” of the Internal Panetta Review to the committee, and Sen. Mark Udall (D-UT) echoed the request during an open committee hearing in December. The CIA responded in January 2014 and said it would not provide a full copy of the review.

Shortly afterwards, on January 15, 2014, Brennan requested an emergency meeting to inform Feinstein that “without prior notification or approval,” CIA personnel had conducted a search of the committee computers at the offsite CIA facility. The agency searched the documents provided to the committee, along with the “stand alone” and “walled-off” committee network drive containing the committee’s internal work product and communications.

According to Feinstein, Brennan told her that the search was conducted in response to indications that some of the committee staff might already have access to the Internal Panetta Review. However, Brennan did not ask how the committee gained access to portions of the review or if it had the document at all. Brennan then said that he intended to order an investigation into the committee network to learn more about activities of the committee’s oversight staff.

After the meeting, an allegation surfaced that committee staff members had accessed the Panetta Review through “unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.”

Two days after the meeting with Brennan, Feinstein wrote him a letter objecting to any further CIA investigation because of the separation of powers and constitutional issues. She then followed that letter with another on January 23, listing 12 specific questions about the CIA’s actions, which the agency has refused to answer.

Her questions related to the full scope of the CIA’s search of the committee’s computer network and the legal basis the agency claimed it had to conduct the search in the first place. According to Feinstein, the CIA’s search may have violated the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12333, which prohibits the CIA from domestic searches or surveillance.

After sending the letters to Brennan, the CIA inspector general David Buckley learned of the agency’s search and began an investigation into its activities. He then referred the investigation to the Justice Department because of the possibility of a criminal violation by CIA personnel.

Along with that referral, the acting general counsel of the CIA filed a crimes report with the Justice Department about the committee staff’s actions. However, Feinstein said she did not know the specifics of the allegations and if the department had initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.

Feinstein said that all the staff involved in the matter have appropriate clearances and handled the sensitive material according to established procedures. “I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly,” she said.

“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,” Feinstein said. “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 the final revisions to the report are being made so that parts of it can be declassified and released to the American people,” she added.

Despite the current situation, Feinstein said that she intends to have updates to the committee report completed this month and to move forward on declassification, which the White House has supported publicly and personally.

The CIA did not issue a statement to Security Management about the accusations it's facing, but Brennan was questioned by NBC’s Andrea Mitchell this morning at the Council of Foreign Relations about the CIA’s actions. He denied that the CIA hacked into Senate computers, saying it was “beyond the scope of reason” and that the agency has never attempted to thwart the review process.

“If there was any inappropriate actions taken related to that review…I’ll be the first one to say we need to get to the bottom of it,” he said. “And if I did something wrong, I will go to the president and I will explain to him exactly what I did and what the findings were. He is the one who can ask me to stay or to go.”
 

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