CIA may have broken law, undermined Constitution, Sen. Feinstein charges

McClatchy Washington BureauMarch 11, 2014 

— The chairwoman of the Senate Select Committee on Intelligence charged Tuesday that the CIA may have broken the law and violated the Constitution by secretly infiltrating computers used by her staff to assemble a scathing report on the spy agency’s now-defunct detention and interrogation program.

“The CIA just went and searched the committee’s computers,” said Sen. Dianne Feinstein, D-Calif.

Feinstein unleashed her stunning charges in an address on the Senate floor that lifted the veil on an extraordinary power struggle over the release of the report that has been raging behind the scenes for months between the CIA and the panel, created in 1976 to oversee U.S. intelligence organizations after a series of domestic spying scandals.

“The CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution,” Feinstein said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.”

In addition, she said CIA intrusions into her staff’s computers also may have breached the Fourth Amendment’s bar on illegal searches, a law prohibiting computer fraud and a 1981 presidential order that greatly restricts the agency’s authority to spy on American citizens.

CIA Director John Brennan denied Feinstein’s allegations after a speech to the Council on Foreign Relations marking his first year at the helm of the spy agency.

“Nothing could be further from the truth. I mean, we wouldn’t do that,” Brennan said. “That’s just beyond . . . the scope of reason in terms of what we’d do.”

Denouncing the CIA’s use of waterboarding and other harsh interrogation techniques during the Bush administration as an “un-American, brutal program,” Feinstein said the resolution of the battle would determine the ability of her committee to be an effective watchdog over the CIA and other U.S. intelligence agencies.

“The recent actions that I have just laid out make this a defining moment for the oversight (powers) of our Intelligence Committee,” Feinstein said. “How this will be resolved will show whether the Intelligence Committee will be effective in monitoring and investigating our nation’s intelligence activities.”

Many experts, including former U.S. military commanders and officials, have condemned as torture the use of the harsh techniques in the interrogations of suspected terrorists in secret CIA “black site” prisons overseas. The Bush administration and the agency contend the methods were legal, although it has emerged that the CIA used some techniques before the program underwent a Justice Department legal review.

Brennan denied that the CIA was trying to impede the release of the committee study, contending that 15 months after the panel approved the report, it still hasn’t been given to the agency to vet before a public release.

“We are not in any way, shape or form trying to thwart this report’s . . . release,” he said.

In a Jan. 27 letter to Feinstein, Brennan acknowledged that the CIA conducted “a limited review” of the staff computers in response to a “breach or vulnerability” in an agency computer network that allowed her staff to obtain documents that he contended they were not authorized to have.

The staff’s access to the documents “raises significant concerns about the integrity of a highly classified computer system and whether the protocols developed between the (committee) and the CIA in relation to CIA files are being followed,” Brennan wrote.

The letter was attached to an email _ both of which were obtained by McClatchy _ that Brennan sent on Tuesday to the CIA workforce in an apparent move to explain the agency’s side of the scandal.

“The CIA wants to put the rendition, detention and interrogation chapter of its history behind it,” he said in the email.

White House spokesman Jay Carney declined to discuss the dispute in any detail.

“What I can say is that you saw the CIA director say today that if there was any inappropriate activity by CIA, he would, of course, want to get to the bottom of it, and certainly the president would agree with that,” Carney said.

In her speech, Feinstein contended that on several occasions beginning in 2010, the CIA blocked access to separate sets of documents and then removed them after they’d already been obtained by the committee staff.

In the first instances _ in February and mid-May 2010 _ CIA officials misled the committee in claiming that the White House had ordered them to block her staff’s access to two batches of documents totaling more than 900 pages, she said.

“When the committee approached the White House, the White House denied giving the CIA any such order,” she said.

Feinstein leveled her charges a week after McClatchy first reported the allegations that the CIA secretly monitored computers used in researching and compiling the committee’s 6,300-page study of the agency’s detention and interrogation program at a secret CIA-leased facility in Northern Virginia.

In a separate report also confirmed by Feinstein, McClatchy disclosed that Democratic staffers printed out and took back to their secure space on Capitol Hill a copy of an internal CIA review. She and other Democratic senators assert the internal review proves that the CIA misled the committee in disputing key findings of its study.

“To say the least, this is puzzling,” said Feinstein. “How can the CIA’s official response to our study stand factually in conflict with its own internal review?”

Feinstein said that CIA Inspector General David Buckley had referred the CIA’s computer searches to the Justice Department “given the possibility of a criminal violation by CIA personnel.”

Shortly after the referral was made, she said, the acting CIA general counsel filed a “crime report” with the Justice Department “concerning the committee’s staff’s actions,” which she decried as a “potential effort” at intimidation.

She went on to point out that from mid-2004 until President George W. Bush halted the interrogation program in 2009, the same CIA lawyer was the main legal adviser to the agency unit that oversaw the program.

Feinstein apparently was referring to the agency’s senior deputy general counsel, Robert Eatinger. The CIA declined to confirm the identity of the individual to whom Feinstein was referring.

The CIA lawyer “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,” she said. “The acting general counsel himself provided inaccurate information to the Department of Justice about the program.”

Feinstein defended her staff, saying they’d broken no laws in printing out and taking the internal CIA review out of the CIA facility and placing it in a safe in their high-security office in at the Senate.

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

The study, which cost $40 million, took four years to complete and entailed a review of 6.2 million pages of top-secret CIA operational cables, reports and other documents, concluded that the agency’s use of harsh interrogation techniques produced very little intelligence of any value, according to lawmakers who’ve read it.

The program didn’t reveal the information that enabled the CIA to pinpoint Osama bin Laden’s suspected hideout in Pakistan at which the al Qaida leader was killed by Navy SEALs in May 2011, they’ve said.

Moreover, the study found that the agency misled Congress, the Bush administration and the public about the usefulness of the interrogation techniques, they’ve said.

Under an arrangement with the CIA, the committee staff was provided with “a stand-alone computer system” to review CIA-approved documents to which only agency technicians would have access. The technicians were barred from sharing any information from the network with other CIA officials without the committee’s permission, she said.

The blocking of the staff’s access in February and May 2010 to documents to which they’d already been given access constituted the first of what Feinstein said were several secret searches of their computers by the CIA.

The matter was settled when the committee received assurances from the CIA and the White House that “there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee,” she said.

Later in 2010, the staff found a draft summary of the internal review, which had been ordered by then-CIA Director Leon Panetta, using a search engine provided by the CIA to scour a database into which contractors dumped millions of top-secret documents after reviewing them numerous times to ensure that they were related to the study and weren’t covered by executive privilege, she said.

How the draft summary of the review got into the database remains unknown, although Feinstein suggested it may have been put there by a whistleblower.

She denied reports in some publications that quoted unidentified U.S. officials who suggested that committee staffers “hacked” through a firewall into a CIA network to obtain the draft Panetta review. She also rejected contentions that the committee wasn’t entitled to some parts of the draft even though they were marked “privileged” and “deliberative.”

The Senate’s top legal adviser determined that “Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties,” she said. “So we believe we had every right to review and keep the documents.”

The Panetta review consisted of summaries of the documents provided to the committee compiled by a separate team of CIA officials, some of whom also included their own analysis of the contents of the materials.

“What was unique and interesting about the internal documents was not their classification level but rather their analysis and acknowledgment of significant CIA wrongdoing,” Feinstein said.

Panetta ordered the review after determining that no records were being kept of the contents of the documents, U.S. officials have said. They’ve denied that the review represented a formal examination of the interrogation program, downplayed its importance, and said that the reviewers’ analyses were personal observations that weren’t subjected to the agency’s formal evaluation procedures.

The staff decided to print out the draft Panetta review and take it to Capitol Hill because the CIA had “previously withheld and destroyed information about its detention and interrogation program,” Feinstein said, referring to the agency’s destruction over the objections of the Bush administration of videotapes of interrogation sessions.

“There was a need to preserve and protect the Panetta review in the committee’s own secure spaces,” she said. “The relocation of the internal Panetta review was lawful.”

On Jan. 15, she said, Brennan requested an emergency meeting with her and Sen. Saxby Chambliss, R-Ga., the committee vice chairman, to inform them that “without prior notification or approval, CIA personnel had conducted a search – that was John Brennan’s word – of the committee’s computers.”

In his letter to Feinstein, Brennan said that the CIA conducted its “limited review” of the committee’s computers after Feinstein wrote a Nov. 26, 2013, letter to the CIA asking for “several summary documents” from an “internal review” of the interrogation program.

Sen. Mark Udall, D-Colo., then revealed the existence of the Panetta review documents at a public hearing at which he also demanded the material, while committee staffers made statements suggesting they already had the documents, Brennan wrote.

The CIA didn’t find the materials listed among the documents it provided to the committee staff nor were they on the CIA’s side of a shared database.

“Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review” to determine if the Panetta review material was on the committee’s segregated network, he wrote.

CIA technicians scoured computer logs restricted to only the Panetta review material, Brennan said, and the scan revealed that documents Feinstein and Udall were seeking “appeared already” to be on the committee’s network.

In their Jan. 15 meeting, he wrote, Feinstein said that she was “not aware that the committee staff already had access to the material.”

Feinstein was roundly praised by Democratic senators and prominent human rights and civil liberties groups for her speech. It was a marked contrast to criticism of her defense of the National Security Agency’s bulk collection of Americans’ communications data.

“I commend Chairman Feinstein for speaking so forcefully in defence of the indispensable role that Congress plays under our Constitution in overseeing the executive branch and in particular the intelligence community,” said Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee. “Chairman Feinstein described a troubling pattern of interference and intimidation by the CIA that raises serious questions about possible violations of the Constitution and our criminal laws.”

DCIA Letter to Sen. Feinstein

Lesley Clark and Michael Doyle of the Washington Bureau contributed.

Email: jlanday@mcclatchydc.com, awatkins@mcclatchydc.com, mtaylor@mcclatchydc.com.

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