A CIA lawyer involved in the agency's Bush-era torture programs is seeking criminal charges against staffers of the Senate Intelligence Committee working on a report deeply critical of the program, a move that California Sen. Dianne Feinstein described flatly as an attempt to "intimidate" the committee.
Calling it a "defining moment for the oversight" of America's intelligence community, Feinstein railed against the CIA's behavior from the floor of the Senate on Tuesday morning. Over half an hour, she outlined how the CIA interfered with the Senate Intelligence Committee's attempts to document the detention and interrogation system that began in 2002. (Update: The full speech is now available.) The intelligence committee wasn't informed of the programs at all until 2006, Feinstein said, and didn't learn that the CIA had destroyed videos of "interrogations" until a 2007 New York Times report was made public. The committee called for a review of cables documenting the torture that had been videotaped, yielding an initial report that Feinstein called "chilling."
Once President Obama came into office and Feinstein assumed the chairmanship of the intelligence committee — which, among other things, provides oversight of the intelligence agencies — the committee approved a full review of the CIA's systems. The committee asked the CIA to turn over all related documents for review, but the CIA insisted the documents be available only in a secure facility controlled by the CIA. Over time, some 6.2 million documents were placed, uncategorized or indexed, on a hard drive in a leased facility in Northern Virginia — a "true document dump" in Feinstein's description. When committee staffers found a document that they wanted to use in the final report, they would print it out or transfer it to the machines they were using to draft the report in that same facility. Eventually, staffers asked for a search tool on the CIA documents, which they got.
Over the course of March, the committee and the CIA have traded accusations about how the document review process was abused. Feinstein's speech was entirely predicated on rebutting claims from the CIA that her staff had somehow illicitly acquired a document critical to their investigation.
In 2010, staffers noticed that files were missing from the CIA-provided dump. The CIA at first blamed contractors and then the White House for the removal. Feinstein insisted that the CIA stop removing documents, which she described as a violation of written agreements between the CIA and the committee. The removal was "the exact sort of CIA interference in our investigation we sought to avoid at the outset," Feinstein said. In May of 2010, the CIA's director of congressional affairs apologized for the document removal.
At some point, the CIA completed an internal review of its interrogation program, a document that Feinstein called the "internal Panetta review," after then CIA-head Leon Panetta. That document, apparently by accident, made its way into the document dump, and was found by staffers using the search tool at some point in 2010. The staffers set a copy aside. There was "no way to know" how it ended up among the documents, Feinstein said. "We don't know if it was provided intentionally by the CIA, unintentionally by the CIA, or provided by a whistleblower," she said.
In December 2012, the committee completed an initial study of the torture program and sent it to the executive branch. The CIA responded, agreeing with some critiques and objecting to others. But, Feinstein noted, the CIA also objected to parts of the review — including parts that stood in conflict to its own internal review.
Noting the disparity, committee staffers moved a copy of the internal review form the CIA facility to the secure Senate committee facility on Capitol Hill. Before doing so, Feinstein insisted, they redacted the parts of the document that the CIA would have redacted had it known about the removal. The reason for removing the document was simple: the CIA had a record of destroying or obfuscating evidence of its programs.
At the end of last year, the committee demanded a copy of the full review, which the CIA refused to provide. In January, CIA director John Brennan called an emergency meeting with the intelligence committee, informing it that CIA staffers had conducted a search of the committee staffers' computers at the offsite facility, computers that "included the committee's own work product and communication." The search, Brennan said, was conducted in response to reports that the committee already had access to the internal review. Feinstein demanded that the CIA cease any further investigation and asked a series of questions about the CIA's behavior to which she's received no response.
The CIA's inspector general began reviewing the CIA's behavior and, according to Feinstein, turned the case over to the Department of Justice to see if laws were violated. Among the possibilities, according to Feinstein: the CIA might have violated the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12333, which prevents the CIA from conducting domestic surveillance.
Apparently in response to that request, the CIA's general counsel filed a crime report against the Senate staffers. Feinstein pointed out that, as counsel to the CIA's counter-terrorism center, the group that conducted the torture, the counsel is "mentioned by name more than 1600 times" in the report draft. "Now he's sending a crime report on Congressional staff — the same staff which details how CIA officers, including the general counsel, provided inaccurate information" on the interrogation program.
She rebutted the arguments against the removal of the document specifically. It was classified similarly to other documents, for example, and wasn't constrained by any non-existent timeframe boundaries agreed to by the committee and the CIA. Nor was there any law against removing the document from the CIA facility.
Feinstein suggested that a declassified version of the report will be made public at some point later this year. If the CIA is attempting to intimidate the staffers who wrote it, it's probably too late.
Update, 11:40 a.m.: Now NSA leaker Edward Snowden has weighed in, in a statement to NBC News.
It's clear the CIA was trying to play 'keep away' with documents relevant to an investigation by their overseers in Congress, and that's a serious constitutional concern. But it's equally if not more concerning that we're seeing another 'Merkel Effect,' where an elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it's a scandal when a politician finds out the same thing happens to them.
That is a pointed reference to Feinstein's prominent role in defending the NSA against the concerns raised by Snowden's leaks. Feinstein's rock-solid backing of the agency wavered when it was revealed that the NSA had spied on the cell phone of German chancellor Angela Merkel.
Update, 11:20 a.m.: In a prescheduled interview with NBC's Andrea Mitchell hosted by the Council on Foreign Relations, Brennan replied to Feinstein's charges. The Guardian provided updates, including quoting Brennan: "There have been many things written, and many things said about the program – some I understand this morning – [and] some are fact, and some entirely fiction."
MSNBC's Adam Serwer quotes Brennan saying that the CIA is "not in any way shape or form trying to thwart this report's progression release."
Brennan on Feinstein's accusation: "Nothing could be further from the truth. we wouldn't do that. that's beyond the scope of reason."— AdamSerwer (@AdamSerwer) March 11, 2014