Accused of Spying on Congress, CIA Director Tap Dances

Nothing about the CIA-Senate squabble looks reasonable.

WASHINGTON, DC - MARCH 11: U.S. Sen. Dianne Feinstein (D-CA) speaks to reporters after finishing a speech on the Senate floor, on March 11, 2014 in Washington, DC. Feinstein who is Chairman of the Senate Intelligence Committee has accused the CIA of secretly removing documents from computers used by the committee. 
National Journal
Major Garrett
March 11, 2014, 5:49 p.m.

CIA Dir­ect­or John Bren­nan denied cred­ible al­leg­a­tions of spy­ing on Con­gress — a fed­er­al crime — leveled by Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein with a clas­sic Wash­ing­ton eva­sion.

“We wouldn’t do that,” Bren­nan said dur­ing an ap­pear­ance be­fore the Coun­cil on For­eign Re­la­tions. “That’s just bey­ond the scope of reas­on in terms of what we would do.”

As might be said in a de­pos­ition, the wit­ness was un­re­spons­ive. Bren­nan wasn’t un­der oath, and this isn’t a full-scale leg­al in­quiry, at least not yet. As any cop or law­yer knows, when someone says they wouldn’t do something, that doesn’t prove they didn’t. And say­ing something is un­reas­on­able doesn’t mean it didn’t hap­pen.

Bren­nan also ad­ded this: “When the facts come out on this, I think a lot of people who are claim­ing that there has been this tre­mend­ous sort of spy­ing and mon­it­or­ing and hack­ing will be proved wrong.”

Note the mod­i­fi­er “tre­mend­ous.” What con­sti­tutes tre­mend­ous in terms of spy­ing or mon­it­or­ing or hack­ing? That’s an eye-of-the-be­hold­er dodge of the cent­ral ques­tion at hand: Did the CIA in­ten­tion­ally in­vade the work com­puters of Sen­ate In­tel­li­gence Com­mit­tee staffers and re­move doc­u­ments rel­ev­ant to the pan­el’s on­go­ing over­sight in­vest­ig­a­tion?

{{ BIZOBJ (video: 4808) }}

Put an­oth­er way: Did the Obama ad­min­is­tra­tion, through zeal­ous and pos­sibly crim­in­al tac­tics, seek to in­ter­fere with the over­sight work of a bi­par­tis­an over­sight com­mit­tee chaired by Fein­stein, a loy­al Cali­for­nia Demo­crat? Is Fein­stein alone? Hardly. Sen­ate Ma­jor­ity Lead­er Harry Re­id backs her “un­equi­voc­ally.” So do rank-and-file Demo­crats.

We are talk­ing crimes and prerog­at­ives here, people. And it’s Demo­crats, not Re­pub­lic­ans, who al­lege that laws may have been vi­ol­ated and prerog­at­ives bull­dozed.

Back to Bren­nan’s “tre­mend­ous” tap dance. Tre­mend­ous speaks to fre­quency, gaud­i­ness, and au­da­city. The is­sue is ever. To para­phrase Jac­queline Susann, once is enough. Break­ing the law is ser­i­ous busi­ness. So is de­bas­ing the sep­ar­a­tion of powers and in­fect­ing ex­ec­ut­ive branch and con­gres­sion­al re­la­tions with sus­pi­cion, doubt, and an­im­os­ity when it comes to na­tion­al se­cur­ity, in­tel­li­gence-gath­er­ing, and over­sight.

The spe­cif­ic al­leg­a­tion, lodged de­lib­er­ately and co­gently by Fein­stein, is that the CIA tried to in­ter­fere with the In­tel­li­gence Com­mit­tee’s in­vest­ig­a­tion in­to en­hanced in­ter­rog­a­tion tac­tics (primar­ily wa­ter­board­ing, but also oth­er rough meth­ods) dur­ing the Bush ad­min­is­tra­tion. The com­mit­tee launched the in­vest­ig­a­tion in 2009 after the CIA ad­mit­ted, un­der duress, that video­tapes of the in­ter­rog­a­tion tech­niques in ques­tion had been des­troyed. The de­struc­tion of these tapes happened over the ob­jec­tions of the Bush White House coun­sel and the dir­ect­or of na­tion­al in­tel­li­gence. (See full timeline here.)

The CIA de­clined to give the com­mit­tee all rel­ev­ant doc­u­ments, in­sist­ing in­stead on hav­ing them re­viewed in a se­cure loc­a­tion in Vir­gin­ia. The com­mit­tee, sus­pi­cious of the ar­range­ment, de­man­ded a stand-alone com­puter sys­tem for re­view­ing doc­u­ments, cables, emails, and memos. The CIA doc­u­ments began ar­riv­ing in mid-2009.

“The doc­u­ments that were provided came without any in­dex, without any or­gan­iz­a­tion­al struc­ture,” Fein­stein told the Sen­ate. “It was a true doc­u­ment dump that our com­mit­tee staff had to go through and make sense of.”

Twice in 2010, once in Feb­ru­ary and again in May, the CIA re­moved doc­u­ments from the In­tel­li­gence Com­mit­tee’s com­puter sys­tem in Vir­gin­ia — the stand-alone sys­tem that was to be walled off from CIA serv­ers. More than 900 pages van­ished. The CIA blamed the White House. The White House coun­sel, at Fein­stein’s in­sist­ence, prom­ised that no fur­ther breaches would oc­cur.

“On May 17, 2010, the CIA’s then-dir­ect­or of con­gres­sion­al af­fairs apo­lo­gized on be­half of the CIA for re­mov­ing the doc­u­ments,” Fein­stein told the Sen­ate, a dis­clos­ure so far un­chal­lenged by the CIA.

File this un­der “bey­ond the scope of reas­on in terms of what we would do.”

In­vest­ig­at­ing fur­ther, com­mit­tee staffers came upon doc­u­ments that formed the basis of what is known as the Pan­etta Re­view, an in­tern­al and ap­par­ently damning CIA as­sess­ment of en­hanced in­ter­rog­a­tion tech­niques ordered by-then CIA Dir­ect­or Le­on Pan­etta. The doc­u­ments were not pro­tec­ted by a high­er level of clas­si­fic­a­tion, and com­mit­tee aides, ac­cord­ing to Fein­stein, used the agreed-upon search tools to find them. How they came in­to the CIA data­base that in­vest­ig­at­ors were sift­ing through, Fein­stein con­cedes, re­mains a mys­tery. Was it in­ten­tion­al, un­in­ten­tion­al, or the work of a whistle-blower who left no di­git­al fin­ger­prints?

What mat­ters is that the CIA, upon dis­cov­er­ing the Pan­etta Re­view pa­per trail was now in the hands of the In­tel­li­gence Com­mit­tee, be­came con­cerned. Ser­i­ously con­cerned.

“At some time after the com­mit­tee staff iden­ti­fied and re­viewed the in­tern­al Pan­etta Re­view doc­u­ments, ac­cess to the vast ma­jor­ity of them was re­moved by the CIA,” Fein­stein told the Sen­ate.

The com­mit­tee con­tin­ued its work and is­sued its re­port, which re­mains clas­si­fied, in Decem­ber 2012. The CIA is­sued a clas­si­fied re­sponse in June 2013, cit­ing nu­mer­ous dis­agree­ments. Curi­ously, some of the CIA’s cri­ti­cism dis­puted com­mit­tee con­clu­sions drawn from the Pan­etta Re­view.

“This is puzz­ling,” Fein­stein noted dryly. “How can the CIA’s of­fi­cial re­sponse to our study stand fac­tu­ally in con­flict with its own in­tern­al re­view?”

Know­ing the im­port­ance of the Pan­etta Re­view, which the In­tel­li­gence Com­mit­tee had por­tions of, those pages were, after elab­or­ate ne­go­ti­ations with the CIA, trans­por­ted to the com­mit­tee safe in the Hart Sen­ate Of­fice Build­ing. There they re­mained un­til Bren­nan told Fein­stein in Janu­ary that the CIA had in­ten­tion­ally searched the com­mit­tee’s com­puters in the Vir­gin­ia “se­cure loc­a­tion.”

Fein­stein said the CIA not only scru­tin­ized CIA-provided doc­u­ments, but it also looked at “the stand-alone and walled-off com­mit­tee net­work drive con­tain­ing the com­mit­tee’s own in­tern­al work product and com­mu­nic­a­tions.”

The im­plic­a­tions of all this? Po­ten­tial vi­ol­a­tions of the Fourth Amend­ment, the Com­puter Fraud and Ab­use Act and Ex­ec­ut­ive Or­der 12333, which pro­hib­its do­mest­ic spy­ing by the CIA.

After Bren­nan’s con­fes­sion to Fein­stein of the spy­ing, the CIA’s in­spect­or gen­er­al, Dav­id Buckley, launched an in­vest­ig­a­tion. Shortly there­after, the CIA’s act­ing gen­er­al coun­sel filed a crimes re­port with the Justice De­part­ment, hint­ing of il­leg­al­ity com­mit­ted by In­tel­li­gence Com­mit­tee staffers. Ac­cord­ing to Fein­stein, the CIA’s act­ing gen­er­al coun­sel, whom she would not name, was a key law­yer in the CIA’s coun­terter­ror­ism cen­ter and ap­pears fre­quently in the com­mit­tee’s in­vest­ig­at­ive re­port. The re­port al­leges this of­fi­cial and oth­ers “provided in­ac­cur­ate in­form­a­tion to the De­part­ment of Justice about the [in­ter­rog­a­tion] pro­gram.”

This has all the pun­gent, ac­rid aroma of a bur­eau­cracy us­ing the threat of pro­sec­u­tion to in­tim­id­ate a Sen­ate com­mit­tee. Fein­stein smells it.

“I view the act­ing coun­sel gen­er­al’s re­fer­ral as a po­ten­tial ef­fort to in­tim­id­ate this staff, and I am not tak­ing this lightly,” Fein­stein said.

Neither should we.

The au­thor is Na­tion­al Journ­al cor­res­pond­ent-at-large and chief White House cor­res­pond­ent for CBS News. He is also a dis­tin­guished fel­low at the George Wash­ing­ton Uni­versity School of Me­dia and Pub­lic Af­fairs.

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