Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

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In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

John Brennan Trolls Emptywheel Even Before He Prevaricates in Response to Dianne Feinstein

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Screen shot 2013-03-08 at 1.27.57 PMThere’s a lot to be said about John Brennan’s appearance at the Council on Foreign Relations today (video here). I’m actually most interested in Brennan’s refusal, twice, to answer questions about whether the NSA needs to engage in bulk collection.

QUESTION: Good morning. Tom Risen with U.S. News and World Report. I’d like to follow up on some — talk about the intelligence gaps. Edward Snowden, yesterday, said that he’s accused the NSA’s mass surveillance of distracting from pinpointed, credible threats. Do you think from where you sit that there’s been any intelligence gaps in the NSA or the CIA on how they could conduct monitoring or spying better?

BRENNAN: Well, you know, anybody who violates their oath in terms of protecting sensitive classified information really has done a great disservice not just to the country, but also has put the American people at harm. NSA, CIA, and others now are looking at what it is that we need to do to mitigate whatever types of — of gaps that we might now face as a result of — of disclosures, publicly.

So we are trying to stay ahead of the challenge, do what we can, both in the HUMINT and SIGINT, as well as other fronts, working very closely with our intelligence partners. But, you know, distractions, you know, do take away from our focus on the — the substantive functional issues that really deserve our full attention.

[snip]

MITCHELL: And can you [keep our country safe] without the mass collection of metadata?

BRENNAN: You know, there — there are a lot of challenges as that digital domain has changed. You know, you ask five people what metadata means, you know, they’ll have probably five different explanations. Probably three or four of them are going to be totally off the mark. Metadata itself is changing. You know, content, bulk data collection, these are things that, you know, really, you know, challenge the mind as far as, how are you going to ensure that if there is a terrorist in this country and he’s determined to do harm with, you know, a conventional explosive or a, you know, biological or chemical weapon, how are you going to be able to operate at the speed of light so that if you get intelligence you find out where that person is? You know, as I said, memories of 9/11, I think, recede in the smoldering ashes on the Manhattan landscape. [my emphasis]

Brennan first responds to Snowden’s claim by attacking his person, without addressing his claim. He then babbles about the challenge of thinking of bulk data. “Content, bulk data collection, these are things that, you know, really, you know, challenge the mind.” Which is a not very graceful way to dodge the question. But he doesn’t answer the question either time.

Most reporters, however, are focusing on Brennan’s prevarications in response to Dianne Feinstein’s statement today.

Well, first of all, we are not in any way, shape or form trying to thwart this report’s progression, release. As I said in my remarks, we want this behind us. We know that the committee has invested a lot of time, money and effort into this report, and I know that they’re determined to put it forward.

We have engaged with them extensively over the last year. We have had officers sit down with them and go over their report and point out where we believe there are factual errors or errors in judgment or assessments. So we are not trying at all to prevent its release.

As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean, we wouldn’t do that. I mean, that’s — that’s just beyond the — you know, the scope of reason in terms of what we would do.

[snip]

This review that was done by the committee was done at a facility where CIA had a responsibility to make sure that they had the computer wherewithal in order to carry out their responsibilities, and so if there was any inappropriate actions that were taken related to that review, either by CIA or by the SSCI staff, I’ll be the first one to say we need to get to the bottom of it.

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. And he is the one who can ask me to stay or to go.

Golly! We would never do any such thing as spy! And even if we get caught, only the President can make me leave, not the Committee.

But I’m most excited that Brennan chose to troll yours truly to introduce his talk.

Now just over a year ago, I had the privilege of placing my hand on the very first printed copy of the Constitution, a draft edited and annotated personally by George Washington himself that is one of the most treasured items held in the National Archives. With my hand on that document, Vice President Biden swore me in as the director of the Central Intelligence Agency.

I chose to take my oath on that precious piece of history as a clear affirmation of what the Constitution means to all of us at the agency. We have no higher duty than to uphold and defend the rule of law as we strive every day to protect our fellow citizens. Like so many things involving, CIA, though, people read nefarious intentions into my decision to take my oath on an early draft of the Constitution that did not contain the Bill of Rights, our Constitution’s first 10 amendments.

So at the risk of disappointing any conspiracy theorists who might be here today, let me assure all of you that I, along with my CIA colleagues, firmly believe in and honor not only the Constitution, but also the Bill of Rights, as well as all subsequent amendments to our Constitution. I just happen to be guilt of being an ardent admirer of George Washington and of the historical foundations of this great country. [my emphasis]

You’ll recall that I was among the first to point out that John Brennan staged a photo op at his swearing in, and either botched the photo op or unveiled his real beliefs, because he swore to protect and defend a Constitution that includes no First or Fourth Amendment.

Take that Dianne Feinstein! You may have accused John Brennan of violating Articles I, II, and III today. But Brennan’s still responding to me busting him for violating the First and Fourth Amendment.

Robert Eatinger, Lawyer Who Approved Torture Tape Destruction, Tries to Intimidate Senate Investigators

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Dianne Feinstein just gave a barn burner of a speech explaining the CIA/SSCI fight over the Torture Report. There are a lot of details I’ll return to.

But one of the most important issues, in my mind, is the detail that the Acting General Counsel of the CIA, Robert Eatinger, referred the Senate Intelligence Committee investigators to DOJ for investigation. (h/t to DocexBlog for identifying Eatinger) Feinstein correctly interpreted this as an attempt to intimidate her staffers as they complete the investigation.

And, as Feinstein made clear, Eatinger is a key focus of the report. Feinstein revealed that Eatinger (whom she did not name) was named, by name, (if I heard Feinstein’s claim correctly) 1,600 times in the Torture Report.

At least some of those mentions surely describe CIA’s decision to destroy the torture tapes, an act Eatinger sanctioned.

Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes’ destruction but rather concluded there was “no legal impediment” to disposing of them, according to sources briefed on their advice.

Hermes and Eatinger, who only recently were interviewed by Durham, continue to work at the agency and have retained counsel, the sources said.

Feinstein described Eatinger’s key role as the Counterterrorism Center’s chief lawyer (presumably after Jonathan Fredman left). Some things CTC lawyers did were:

  • Approved the use of sleep deprivation before DOJ considered the question
  • Altered the record of the original briefing to Nancy Pelosi and Porter Goss
  • Used a John Yoo freelanced memo as the basis of advice to CIA on torture
  • Collaborated with John Yoo to write a “Legal Principles” document that authorized otherwise unauthorized torture techniques

Lawyers probably associated with CTC also lied about the treatment of Hassan Ghul in 2004.

Eatinger also contributed to a CIA cover-up attempt in a key State Secrets case.

There’s a lot that’s amazing about this story. But I find it particularly telling that a lawyer trying to protect his own ass — trying to hide details of the 1,600 mentions of his name in the Torture Report — has targeted Senate Intelligence Committee staffers.

Update: Given that Eatinger is apparently the person who referred the Senate staffers, it is significant that Feinstein started her speech by raising the torture tape destruction.

The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.

A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence.

After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.

The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed.

John Kiriakou’s Prosecution Is an Important Precedent to CIA – Senate Intelligence Committee Spat

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On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.

The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.

Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.

The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”

A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.

U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.

The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.

[snip]

If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.

[snip]

If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?

Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.

Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)

But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

Read more →

DOJ’s Leaky SCIF Double Standards

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McClatchy’s latest in the CIA-Seante Intelligence Committee fight reports that FBI is now investigating Senate Intelligence Committee staffers for unauthorized removal of classified information from CIA’s SCIF.

The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.

[snip]

The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.

[snip]

The investigation request by the CIA general counsel’s office is one of two criminal referrals sent to the Justice Department in connection with the committee’s 6,300-page report, which remains unreleased nearly 15 months after the panel voted to approve its final draft, according to those familiar with the case.

The second was made by CIA Inspector General David Buckley, they said. It relates to the monitoring by the agency of computers that the committee staff used to review millions of classified documents in the electronic reading room set up inside a secret CIA facility in Northern Virginia, they said.

Wow. This removal of a document from a SCIF containing torture documents sure escalated quickly.

Which is particularly remarkable given DOJ’s past response when torture documents walk out of a SCIF, even their own one.

Recall that sometime between 2005 and 2009, at least 10 and possibly as many as 31 documents critical to discussions over the legality of torture disappeared from the Office of Legal Counsel’s very own SCIF.

Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

Not only did DOJ apparently do nothing about their own leaky SCIF, they took some time to even tell the ACLU about it. What’s a few sensitive torture documents escaping from their SCIFs after all?

But now, when it’s the CIA being compromised rather than the CIA doing the compromising, things quickly escalate to potentially criminal investigations.

DOJ seems to have a remarkably inconsistent standard response when torture documents disappear from SCIFs. I wonder why that is?

If CIA Pwned SSCI’s Segregated Shared Drive, the Torture Report Should Be FOIA-able

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As reader Tom has helpfully reminded me, both Mark Udall’s follow-up questions for Stephen Preston and the CIA’s declaration in ACLU’s FOIA to liberate the Torture Report describe the arrangements CIA required of the Senate Intelligence Committee staffers as they were working on the Torture Report.

Udall described how the CIA insisted on an “unnecessary multi-layered” process that added significantly to the time and cost of the report.

The CIA declined to provide the Senate Select Committee on Intelligence with access to CIA records at the Committee’s secure office space in the Hart Senate Office Building. Instead, the CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff. What role did you play in the decision to employ these unnecessary multi-layered review steps that delayed CIA document production to the Committee at significant governmental expense?

And the CIA declaration emphasizes how SSCI retained complete control over the materials in the Sensitive Compartmented Information Facility in which its staffers had been required to work.

One key principle necessary to this inter-branch accommodation, and a condition upon which SSCI insisted, was that the materials created by SSCI personnel on this segregated shared drive would not become “agency records” even though this work product was being created and stored on a CIA computer system. Specifically, in a 2 June 2009 letter from the SSCI Chairman and Vice Chairman to the CIA Director, the Committee expressly stated that the SSCI’s work product, including “draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee” and “remain congressional records in their entirety.” The SSCI further provided that the “disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee.”

[snip]

Based on this inter-branch accommodation, SSCI personnel used the segregated shared drive to draft the document that is the subject of this litigation. As sections of the report reached a certain stage, the SSCI worked with the CIA information technology and security personnel to transfer these drafts from the segregated shared drive to the SSCI’s secure facilities at the U.S. Capitol complex so that the Committee could complete the drafting process in its workspaces.

Here’s the thing. The purported control SSCI had over the materials in this SCIF is central to CIA’s claim that the Torture Report is not an Agency document and therefore is immune from FOIA.

If SSCI did not have complete control over this material — if CIA could spy on SSCI at will (if, as seems to be the case when viewed in retrospect) — then it guts their argument that the Torture Report is a Congressional document.

If CIA pwned SSCI in that SCIF, then it should make this material (at least the draft reports, before they got moved over to SSCI’s own SCIF) FOIA-able.

So either CIA should be prosecuted for hacking SSCI. Or it should hand over the last draft of the report that resided on servers it felt free to hack into.

Do Senators Collins, King, and Warner Like Being Spied On?

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Over the last few days, I’ve tracked the accusations and counter-accusations between CIA and the Senate Intelligence Committee.

A number of people have asked why, as a way to end this issue, the Committee doesn’t just declassify the entire SSCI Report.

But it’s not so simple as that.

It’s not clear there are the votes to release the Report.

Recall that when the Committee approved the Report back in 2012, the vote was largely split on party lines, with the exception of John McCain, who voted as an Ex Officio member (as Ranking Member of Senate Armed Services Committee) to release the Report. McCain is no longer SASC Ranking member: Jim Inhofe is, and I’m betting he’s not going to vote to release the Report.

There are few other changes in the Committee proper since the report was originally finalized. Martin Heinrich and Angus King have replaced Bill Nelson and Kent Conrad, and Susan Collins and Tom Coburn have replaced Olympia Snowe and Roy Blunt.

And while Heinrich has quickly become one of the better overseers on the Committee, including on torture, it’s not actually clear whether King would vote to release the report. Collins, too, has been reported to be undecided (and her vote would be critical to making this a “bipartisan vote,” now that McCain doesn’t have a vote). There are even hints that Mark Warner wouldn’t vote to support its declassification (though he supported its finalization).

And importantly, King and Collins have been reported to be undecided after the time when, in January, the Committee at least began to suspect they’d been surveilled.

There are, obviously, two different issues (though Saxby Chambliss, at least, sides with CIA on both counts). But there’s been little outcry from the swing votes on releasing the underlying report itself.

Update: h/t to JK for the link to the Collins/King report I was not finding.

Operation Stall

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McClatchy has now posted an update to the tale of the CIA-SSCI spat.

It appears the following happened: Sometime around August, SSCI staffers working on a database at CIA discovered the internal CIA report, started under Leon Panetta, that corroborated the SSCI report. It also contradicted CIA’s official response to the SSCI Report.

Several months after the CIA submitted its official response to the committee report, aides discovered in the database of top-secret documents at CIA headquarters a draft of an internal review ordered by former CIA Director Leon Panetta of the materials released to the panel, said the knowledgeable person.

So having discovered even the CIA disagreed with the CIA’s response, the SSCI staffers took a copy with them.

They determined that it showed that the CIA leadership disputed report findings which they knew were corroborated by the so-called Panetta review, said the knowledgeable person.

The aides printed the material, walked out of CIA headquarters with it and took it to Capitol Hill, said the knowledgeable person.

Mark Udall raised the report in a December hearing. In January, CIA accused SSCI of absconding with the document.

After the CIA confronted the panel in January about the removal of the material last fall, panel staff concluded that the agency had monitored computers that they’d been given to use in a high-security research room at the CIA campus in Langley, Va., a McClatchy investigation found.

In response, the CIA asked DOJ to start an investigation.

Then there’s this weird question about the document. I’m not sure whether the issue is how the document first got included in the database at CIA, or whether it’s how it migrated to SSCI.

White House officials have held at least one closed-door meeting with committee members about the monitoring and the removal of the documents, said the first knowledgeable person.

The White House officials were trying to determine how the materials that were taken from CIA headquarters found their way into a data base into which millions of pages of top-secret reports, emails and other documents were made available to panel staff after being vetted by CIA officials and contractors, said the knowledgeable person.

My favorite part of this passage, though, is that contractors are helping choose with documents CIA’s overseers are allowed to see.

Because contractors should surely have more visibility into what the CIA does than CIA’s overseers, right?

All of which is to say the SSCI busted the CIA for lying in their official response to the Committee. And as a result, CIA decided to start accusing the Committee of breaking the law. And now everyone is being called into the Principal’s office for spankings.

This reminds me of what happened when Gitmo defense lawyers tried to independently identify the identities of their clients torturers. The lawyers got too close to the torturers, which set off a process that ultimately led to John Kiriakou, as the sacrificial lamb, going to jail.

But it seems that this is part of a larger CIA effort to stall. As McClatchy notes, CIA took 3 extra months to provide their initial response to SSCI. Then this erupted 2 months later. It has now been almost 3 months since Udall first revealed the existence of the Panetta report. Which brings us just 8 months away from an election in which the Democrats stand a good chance of losing the Senate, and with it, the majority on the Committee that might vote to declassify the report in defiance of CIA’s wishes. Which may be why Saxby Chambliss is fanning the CiA’s flames for them.

“I have no comment. You should talk to those folks that are giving away classified information and get their opinion,” Intelligence Committee Vice Chairman Saxby Chambliss (R-Ga.) said when asked about the alleged intrusions.

Stall, stall, stall. It’s what CIA did with the OPR report, it’s what they did with the torture tape investigation, and now this.

CIA may well suck at doing their job — getting intelligence that is useful to the country. But they sure are experts at outlasting any oversight onto their real activities.

CIA Hacks Its Overseers

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In January, Ron Wyden and Mark Udall suggested that CIA was hacking into US computers.

Wyden asked (43;04) John Brennan whether the federal Computer Fraud and Abuse Act applied to the CIA.

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Minutes later, Mark Udall raised EO 12333′s limits on CIA’s spying domestically (48:30).

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

It appears the target of this hacking was the Senate Intelligence Committee itself.

The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

[snip]

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

NYT adds that CIA started spying on SSCI after learning it had accessed documents they didn’t want them to.

The action, which Mr. Udall did not describe, took place after C.I.A. officials came to suspect that congressional staff members had gained unauthorized access to agency documents during the course of the Intelligence Committee’s years-long investigation into the detention and interrogation program.

This is effectively the same treatment the CIA extends to Gitmo lawyers and defendants, where it spies to see what they’re saying about its torture methods.

But I bet it will be treated with more seriousness.

Mark Udall: CIA Took “Unprecedented Action” Against SSCI on Its Own Torture Report

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Mark Udall just wrote Obama a sometimes cryptic letter asking him to commit to declassifying the Senate Intelligence Report torture report. In it, he:

  • Asserts a significant amount of what has been declassified about the torture program is “misleading and inaccurate”
  • Asks for more information about what led to the development of the CIA report
  • Asks why the findings of the CIA report were not included in CIA’s (John Brennan’s) response to the torture report
  • Suggests CIA is withholding the final version of the internal CIA report that corroborates many of SSCI’s report (it has provided a draft)
  • Says he will hold Caroline Krass’ nomination to be CIA General Counsel

But I’m particularly interested in this oblique comment:

As you are aware, the CIA has recently taken unprecedented action against the Committee in relation to the internal CIA review, and I find those actions to be incredibly troubling for the Committee’s oversight responsibilities and for our democracy. It is essential that the Committee be able to do its oversight work — consistent with our constitutional principle of the separation of powers — without the CIA posing impediments or obstacles as it is today.

“Unprecedented” is a pretty strong word.

Senator Udall’s office was unable to offer more clarity about this unprecedented action.

Updated: Changed the title because it implied Udall was saying this unprecedented action was about covering up torture, which is more than he said.