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Top CIA Lawyer Involved in Torture Program Requested DoJ Investigate Senate Staffers Working on Torture Investigation

Sen. Dianne Feinstein (Screenshot from CSPAN broadcast)

Senator Dianne Feinstein, chair of the Senate Select Committee on Intelligence, delivered a statement on the Senate floor this morning. It highlighted the role the CIA had played in interfering and even intimidating members and staff of the committee, who have worked on a 6,300-page study of the agency’s detention and interrogation program which involved torture.

Over the past week, there have been allegations in the press that Senate staffers took documents without proper authorization and in response the CIA acting general counsel referred allegations of misconduct to the Justice Department for a criminal investigation. There also have been reports of CIA personnel spying on computers that were being used by Senate staffers.

“I have grave concerns that the CIA’s search [of committee computers] may well have violated the separation of power principles embodied in the United States constitution including the speech and debate clause. It may have undermined the constitutional framework essential to effective oversight of intelligence activities and any other government function,” Feinstein declared.

The search may have also “violated the 4th Amendment, CFAA as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

Feinstein admitted staff had taken a copy of an internal review by former CIA director Leon Panetta, which the committee believes was “written by CIA personnel to summarize and analyze the materials that had been provided to the committee for its review.”

“At some point in 2010, committee staff searching the documents that had been made available found draft versions” of the review.” And, “The Panetta review documents were no more highly classified than other information we had received for our investigation,” she added.

Because of disparities between this internal review and a CIA response to the committee’s study provided to Senate, the committee viewed the review as significant. It corroborated “critical information” that “the CIA’s official response either objects to, denies, minimizes or ignores.” To protect the document from being destroyed staff moved a copy of a portion of this review to the Hart Senate Office Building.

The transportation of portions of the internal review was done lawfully, according to Feinstein. Information that the committee agreed to redact—the names of non-supervisory CIA personnel and the locations of CIA detention sites in countries. Staffers did a declassification review like the CIA would have done if reviewing the documents.

“No law prevents the relocation of a document in the committee’s possession from CIA facility to secure committee offices on Capitol Hill,” Feinstein declared.

This was necessary to the committee because they were well aware of the fact that the CIA had “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,” she said.

The Senate intelligence committee requested a final and complete version of the internal review at the end of last year, but the CIA informed senators in January that they would not be providing it to the committee because of the “deliberative nature of the document.”

It is for this action that the acting counsel general of the CIA filed a crimes report with the Justice Department.

“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 it lightly.”

Feinstein described how the top legal officer of the CIA may suffer from a conflict of interest:

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 1600 times in our study and now this individual is sending a crimes report to the DoJ 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 info to the DoJ about the program.

In the course of committee efforts to complete this torture study and finalize it so it could be declassified, the CIA conducted unauthorized searches of computers staffers were using. The CIA also removed documents, which they were supposed to be able to access.

Back in 2009, the committee requested all documents from the CIA related to the investigation but Panetta “proposed an alternative arrangement to provide 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.”

The committee agreed to this if staffers were given a “standalone computer system” with a network drive segregated from CIA networks. This network “would only be accessed by information technology personnel at the CIA who would ‘not be permitted to share information from the system with other CIA personnel except as otherwise authorized by the committee.'” Yet, Feinstein stated, “It was this computer network that notwithstanding our agreement with director Panetta was searched by the CIA this past January and once before.”

The committee also asked the CIA to “provide an electronic search tool so they could locate specific relevant documents for their search among the CIA produced documents just like you would use a search tool on the internet to locate information.”

“When the staff found a document that was particularly important or might be referenced in our final report, they would often print it or make a copy of the file on their computer so they could easily find it again. There are thousands of such documents in the committee’s secure spaces at the CIA facility,” Feinstein added.

Earlier this year, Brennan requested an “emergency meeting” to explain to Feinstein and Sen. Saxby Chambliss, vice chairman of the intelligence committee, that CIA personnel had, without prior notification or approval, conducted a “search” of the committee’s computers at the offsite facility in northern Virginia. “This search involved not only a search of documents provided to the committee but also a search of the standalone and walled off committee network drive containing the committee’s own internal work product and communications.”

Nobody at the CIA asked members of the committee or staff if the committee had access to the internal review or how it had been obtained. Feinstein stated the CIA simply took it upon themselves to search the committee’s computers without aksing any questions about why they had the review in their possession.

Unnamed officials proceeded to repeat allegations anonymously in the press about how documents had been obtained by staffers through “unauthorized or criminal means,” perhaps to include “hacking into the CIA’s computer network.” Feinstein made clear this was not the case. A “search tool” used without any objections from the CIA had been used to find and access all documents.

According to Feinstein, the “CIA’s search determined that committee staff had copies of internal review on committee staff’s shared drive and accessed them numerous times.” Brennan ordered “further forensic investigation of the committee network to learn more about activities of the oversight staff.”

Feinstein objected to this activity as a violation of the separation of powers and asked Brennan in January to describe the full scope of the CIA’s search of the computer network and to explain “who had authorized and conducted the search and what legal basis the CIA claimed gave it authority to conduct the search.” Brennan and the CIA refused to provide any answers.

This conduct by the CIA comes as the CIA has tried to finalize the report by giving proper consideration to the CIA’s response and objection to conclusions. The problem the CIA has is that it wants its version of the facts, which are not entirely true, to be incorporated and the Senate intelligence committee has fought the agency.

In May 2010, Feinstein recalled, “committee staff noticed that documents that had been provided for committee 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 themselves without direction or authority. And then the CIA stated that 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.”

Twice during the production of the torture study CIA personnel “electronically removed committee access to CIA documents” that had been provided to the committe. In February 2010, around 870 documents were removed and in May 2010, about 50 were removed.

“This was the exact sort of CIA interference in our investigation that we sought to avoid at the outset,” Feinstein declared. And she went to the White House and obtained a “renewed commitment” from the White House counsel and CIA that “unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee” would no longer occur.

But then the internal Panetta review that committee staffers had found on the computer system disappeared. Once again, the CIA was removing documents in violation of agreements that had been made.

Feinstein defended staffers, who are now being threatened with “legal jeopardy just as final revisions are being made so that parts” of the study “can be declassified and released to the American people.” She called the release important to
“ensure that an un-American brutal program of detention and interrogation will never again be considered or permitted.”

She made clear that the committee has “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 whistleblower. 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 aware 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 documents have been provided.

And Feinstein concluded, “The recent actions that I have just laid out make this a defining moment for the oversight of our intelligence committee. How Congress and how this will be resolved will show whether the intelligence committee can be effective in monitoring and investigating our nation’s intelligence activities or whether our work can be thwarted by those we oversee.”

Full transcript of Feinstein’s floor speech on CIA interference and intimidation of committee staff working on torture study here.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."