California Democratic Sen. Dianne Feinstein took to the Senate floor this week to accuse the CIA of violating the law and the Constitution by spying on Senate staffers investigating the agency's Bush-era torture program. But the CIA's alleged search of senate intelligence committee computers wasn't the only thing that prompted her to speak out. It was accusations by a high-ranking CIA official that it was Senate staff who had broken the law.
"I felt that I needed to come to the floor today, to correct the public record and to give the American people the facts about what the dedicated committee staff have been working so hard for, Feinstein said, over the "last several years as part of the committee’s investigation."
In 2009, the Senate intelligence committee began an investigation into the agency's rendition and interrogation program during the Bush administration. The CIA set up a secure workplace for the committee where they would be able to access classified documents provided by the agency, with computers segregated from the main CIA network. According to Feinstein, the CIA and the committee had agreed upon ground rules, which included a commitment by the CIA not to interfere with the committee's inquiry. Only CIA IT staff were supposed to be given access to the committee's computers.
Shortly after the news broke that the CIA may have searched those computers, a counter-accusation began surfacing in the press: That it was Senate intelligence committee staff who had acted improperly by gaining access to documents they weren't supposed to have. All of a sudden, it was the intelligence committee staff who were facing accusations of wrongdoing, for supposedly having "walked out of one of the spy agency’s top-secret facility with classified documents that the CIA contended they weren’t authorized to have."
According to Feinstein, it was one of the CIA's top lawyers, Robert Eatinger, who asked the Department of Justice to look into whether Senate staff had broken the law. The CIA Inspector General has also asked the Justice Department to look into the CIA's conduct.
CIA Director John Brennan, responding to criticism from senators over his agency's alleged spying on Senate staffers, made a point of stating that "the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the executive branch or legislative branch." Brennan has denied "spying" on the committee, but this may be a matter of semantics, as Brennan may simply believe that the CIA's alleged search of the committee's computers was legitimate or justified.
Feinstein called Eatinger's referral "a potential effort to intimidate this staff." According to Feinstein, Eatinger is mentioned several times in the committee's yet to be declassified report.
Eatinger is the same CIA attorney who blessed the destruction of video tapes depicting the torture of suspected terror detainees. Senate staff had every reason to believe history might repeat itself, and that the Agency might seek to destroy materials considered damning.
"Senators and congressmen received their right to access executive branch information from the American people when they were elected," said Vicki Divoll, an attorney who has worked both for the CIA and the Senate intelligence committee. "We gave them the power to access information at the CIA on our behalf, to keep watch on the agency for us. If Congress can't do it, no one can."
While operational details may be kept from the intelligence committee as a matter of policy, according to Divoll, under the law the Senate intelligence committee is entitled to see every document the agency has.
"The Senate intelligence Committee, under current interpretations of its Constitutional powers, is entitled to every document in the CIA's possession," said Divoll. "The documents themselves, however acquired, and whatever their classification level, may be reviewed by Senate staff in the performance of their legislative tasks."
Feinstein alluded to this in her speech.
"Some of the Internal Panetta Review documents—some—contained markings indicating that they were “deliberative” and/or “privileged." Feinstein said. "Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties."
In other words, the CIA doesn't get to keep secrets from the intelligence committee unless the committee allows them to.
"The CIA, and most agencies of the executive branch, frequently reference a vague bundle of privileges -- executive, deliberative, attorney-client -- to support the claim that they can keep information from Congress," Divoll says. "Neither the Supreme Court, nor any lower court, has ever found that any such privilege exists."
The intelligence committee staff participating in the investigation, Divoll said, would have the same clearances as the staff at the CIA. And according to Feinstein, the CIA had removed documents given to the committee at least twice in 2010 and later apologized. In January 2014, Feinstein says Brennan himself informed the committee in that the computers Senate staff were using had been "searched."
A key item at issue is an internal CIA document, referred to by Feinstein as the "Panetta review," which refers to former CIA Director Leon Panetta. Democratic senators on the committee believe the Panetta review contradicts the CIA's rebuttal of conclusions reached by the committee's report on Bush-era torture. The intelligence committee's report is said to be highly critical of the Bush torture program, whose operations Feinstein said were "far different and far more harsh than the way the CIA had described them to us." President Obama declined to weigh in but told reporters Wednesday that he was still committed to declassifying the Senate report's findings.
According to Feinstein, the Panetta review, which was among the more than six million CIA documents provided to the committee for its investigation, was removed from the computers on the intelligence committee's workspace sometime after the CIA discovered Senate staffers had gotten access to it. But there's nothing sinister about cleared committee staff transporting secret documents from one secure place to another.
"There's not a security risk that they have it in the Senate, staff is regularly provided with the means by which they can carry information from place to place," says Mieke Eoyang, a former Senate intelligence committee staffer who now works as a national security analyst at Third Way. "They were writing up a report on said documents, which was the whole point of the investigation."
In the meantime, the CIA is still refusing to turn over the Panetta review, even though the committee has already seen it. "There is no basis in law for the CIA to keep such a document from the committee," says Divoll. "No privilege exists to justify keeping that document from Congress."
Senate staff removing copies of the documents may have violated the ground rules agreed to by the intelligence committee and the CIA. But even if it was a violation--and Feinstein says it wasn't--that's not the same as breaking the law. And according to Feinstein, the CIA's search of the intelligence committee's computers was worse than a simple breach of the ground rules--it was a violation of the law, the U.S. Constitution, and crucially, a threat to the entire oversight structure set up to monitor the massive American national security state.
The full details aren't known yet -- it's possible that the way that the Senate staffers acquired the documents was inappropriate. Feinstein insists that's not true, and the Panetta Review was among the millions turned over to the committee for their investigation. Eoyang said that the possibility that Senate staffers somehow hacked into the CIA's network and stole documents -- material they were legally entitled to see anyway -- is far-fetched.
"They're policy people, not hackers, that's not what they do," Eoyang said. "The suggestion that there's wrongdoing on behalf of the staff here, seems to be pretty weak sauce."