The Fire Behind CIA’s Smoke

March 8, 2013– The Central Intelligence Agency’s defense to charges that it has been spying on Congress is that it was simply investigating mishandling of classified information, a legitimate function. In this rendering all the documents the Senate Select Committee on Intelligence (SSCI) was studying for its review of the CIA torture and black prisons programs were supposed to stay within the room the agency had set aside for the SSCI researchers. Instead, the story goes, an SSCI staffer printed up a copy of one particular document and took it with him to the intelligence committee’s offices on Capitol Hill. The case of the purloined document, we are told, has now been sent to the FBI for further inquiry.

I’d have more sympathy for the agency’s point of view if the context were different. What is problematic here is that the charge against SSCI represents a counterattack by an agency embattled, essentially a political move. If this were football, it would be a goal line defense. More disturbing, this CIA action was not taken in isolation, it forms part of a pattern that stretches back to 2005.

First, consider the specifics of the purloined document. It has now been widely reported that this was a copy of the “Panetta Review.” Leon Panetta was President Obama’s first CIA director and ordered up an internal study of the effectiveness of the agency interrogation program. Panetta wanted to get a feel for the contents of the range of documents the CIA was agreeing to let the Senate access. The review consisted of several different papers and reportedly concluded the project had yielded little of value.

Three things are significant here. First, this was not some low level analyst expressing a personal view, it was a major postmortem done in response to the director’s instructions. Second, because it was a major report it was compiled on the basis of all agency records, thus it represented a considered point of view. Third, the reported conclusions of the Panetta review are markedly at odds with the CIA’s representations to the Senate investigators, who were told the interrogation programs had been very successful–a position the CIA continued to maintain in its response to the completed SSCI investigative report. All of this without informing the Senate committee, its legal overseers, that the Panetta report even existed. —And, it should be added, without the CIA taking the Panetta Report’s conclusions into account in its response to the Senate committee investigations.

(To be facetious for just a moment, what you have is the CIA pretending the Panetta Review did not exist, and later demanding criminal indictment for someone who showed it did. Either the report did not exist, so there is no issue about revelation; or the report did exist, and the CIA is at fault for not bringing it to the attention of investigators.)

You can imagine the consternation an SSCI staffer felt when he encountered the Panetta Review among CIA records. It is understandable that a Senate staffer would think this a crucial discovery and decide the members of the intelligence committee needed to see the full text immediately.

According to McClatchy News, the agency now says a Senate researcher acquired this document early in the SSCI inquiry, and did so by breaching a firewall between the material to which the investigators had access and the larger body of agency records.

The CIA’s latest squirm on the hook is that since the Panetta Review was conducted in 2009 it fell outside the purview of the agency’s agreement with the Senate committee, which was to cover material only up to the point when the black prisons were abolished, which had occurred in 2006. This represents the same kind of literalism and myopia with which Langley deals with outsiders–a review compiled in order to get a sense of the documentary terrain the SSCI was being access to is denied because it was created later. An argument can still be made that the Panetta Review was derivative of the covered documents and therefore should have been available to investigators.

That does not excuse an SSCI violation of rules on the handling of classified material, but it remains an unknown here what precise arrangements the SSCI and CIA had agreed to, and in this case those rules needed to be weighed against the national interest. Moreover, within the CIA a violation of document handling regulations is viewed as an administrative matter, where here it has been referred to the FBI for criminal investigation.

How did the CIA know of the purloined document? An answer to that question is necessary. Until senators began asking questions about the discrepancies between the agency’s official response to the SSCI report and CIA’s internal postmortem on the torture, the only way to have known would have been by tracking the keystrokes, file openings, and downloads on the computers used by SSCI researchers. Here we get to the charge that the CIA was spying on the Congress. The best case from CIA’s side would be that it found out only when SSCI members raised the discrepancy issue, and that it then conducted a standard security review, uncovering the breach. But this data is only recoverable if it was being collected in real time, when the SSCI researchers were on CIA premises. So either way the agency was spying on its overseers.

The latest development here is precisely along this line: a CIA claim that it became aware of the leak when Senator Mark Udall (D-CO) brought up the discrepancies in December 2013, and then wrote President Obama in early January of this year asking that the Panetta Review be officially released. The CIA then searched its computer “audit log” and discovered the breach. This plays both ways–it confirms the CIA was collecting data on the Senate investigators in real time.

One troubling point that remains concerns dating–the claim that SSCI discovered the Panetta Review early in its investigation, the handover of the CIA response to the Senate report in June 2013, then the delay until December 17, when Senator Udall first mentioned the discrepancy between the CIA response and the Panetta Review. During that interval agency officials and SSCI representatives had met for more than sixty hours specifically to talk over their differences arising from the CIA response and the SSCI report. If the Senate intelligence committee had really had the Panetta Review from an early date, surely the matter of CIA internal discrepancies would have come up then. This casts doubt on the CIA claim as to timing.

The CIA Inspector General, David Buckley, has referred the computer monitoring to the Justice Department for its decision on whether to open a criminal investigation.

Now let’s change the lens and look at the Big Picture. The CIA’s attack on Congress today mirrors its unprecedented action in 2007, when it conducted a security investigation against its own Inspector General. Then as now the allegation was leaks, i.e., mishandling classified information, but the context was the release under the Freedom of Information Act of an expurgated version of the IG’s internal inquiry into the CIA torture, which gave the public its first authoritative knowledge of the program. Before that, in 2005, when the CIA project first leaked, agency officials conspired to destroy evidence–the now-notorious videotapes that documented CIA torture. I have made some ascerbic remarks regarding the memoirs by CIA lawyer John A. Rizzo (see “Tone-Deaf CIA Lawyer,” March 1, 2014), but one thing his memoir makes crystal clear was that the tapes were destroyed in the face of clear orders to the contrary. The second Bush administration’s Justice Department dealt with CIA torture with a very light hand, choosing to prosecute only two tangential cases where death had resulted. But the pattern of CIA actions raises the question of how responsive the agency actually was, in supplying evidence both for those cases and for the Justice Department’s investigation of the torture tapes’ destruction.

Meanwhile we still have the fact that the CIA has been sitting on–and is still dragging its feet–not only on release of the SSCI report on CIA torture but on its own response. It is now fifteen months since the senate study was sent to the agency. –And senators on the intelligence committee have been saying that the CIA response itself makes claims regarding the SSCI study that are simply false. The former CIA general counsel, Stephen Preston, who had told senators that the agency’s response to the SSCI study had been “appropriate,” later took pains to distance himself from it. “I did not personally participate in the [CIA] team’s formulation of substantive comments,” he told the Senate Armed Services Committee, “nor did I independently review the factual basis for their findings and conclusions.”

It is difficult to avoid the conclusion that a CIA cover-up is in progress. There is real fire behind this smoke. As I wrote in The Family Jewels these kinds of abuses follow a pattern–and the Central Intelligence Agency is replicating that pattern right now.

(This article was posted originally on March 7, it has been updated to reflect developments of that day.)

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