by Major Garrett
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?
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.
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by Major Garrett 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.