CIA: On the Hook

March 13, 2014–“We want this behind us.” Thus said CIA director John O. Brennan during the question and answer session following his Council on Foreign Relations speech on Tuesday. He also said, “We are not in any way, shape, or form trying to thwart this report’s progression, release.” Which begs the question, why hasn’t the CIA declassified the document?

In 2010 the agency shifted blame to the White House, alleging that Obama’s staff had ordered it to remove documents from the Senate Select Committee on Intelligence (SSCI) computers used in the investigation which produced this report (the president’s top lawyer denied that). This time White House cover is not available. The president’s spokesman has said the White House wants the report out too. The Senate intelligence committee certainly does also.

So where is the report?

Returning to the agency after that speech, Director Brennan issued a message to CIA employees. He told them that the agency “tried to work as collaboratively as possible with the committee,” and cited his extensive meetings (arguments–Brennan himself characterized the contacts as “spirited and even sporty”) with SSCI leaders as evidence of that.

Of course, we already know that the CIA had a monitoring team charged with going over every document made available to the investigators, multiple times. Several thousand documents were denied at that level. McClatchy News reports today that 9,400 documents were denied during the early period on executive privilege grounds. It is not clear whether this report refers to the same set of documents the CIA previously admitted removing. If it is, that’s not very good either–it would mean the agency was misrepresenting by two-thirds the amount of material actually extracted. If these are separate reports they indicate the withholding was even more extensive than previously represented. And note–this was separate and independent from the two actions in 2010 when over nine hundred additional documents (or pages) that had already been handed over were removed from the cache that was available to investigators. The CIA’s eventual response to the SSCI investigation would state, “We disagree with the Study’s contention that limiting access is tantamount to impeding oversight.”

The dispute over the 2009 Panetta review document (see “Senator Feinstein Comes Out of the Closet,” March 11, 2014) sheds more light: the CIA has denied this document to its own congressional overseers. Two arguments have ben used to justify that action. One, the pretention this paper was “pre-decisional” and therefore exempt, I dealt with yesterday (“The Family Jewels Crisis,” March 12, 2014). The other is that because the Panetta Review was compiled in 2009 it fell outside the scope of the SSCI inquiry, which was dealing with events up until 2006. This is disingenuous for two reasons. First, the congressional committees have an absolute right to review any CIA document for any reason to do with their oversight function. That Langley makes an issue of “scope” merely demonstrates it is relying upon precise literal interpretations of prior arrangements–which is the antithesis of Brennan’s claim to be working collaboratively. Second, the Panetta review was compiled as a summary of the same documents that were within the purview of the SSCI inquiry. Thus they are derivative of those materials and a legitimate argument can be made that the review should be accessible even within the agreed scope.

Contrast this denial with Brennan’s own actions. In a statement undoubtedly intended to shore up agency morale, the director told his employees “we also owe it to the women and men who faithfully did their duty in executing this program to try and make sure any historical account of it is balanced and accurate.” Director Brennan then proceeded to release to the entire CIA workforce the private letter he had written on January 27 to Chairwoman Dianne Feinstein of the SSCI, disputing the Senate committee’s demand for the Panetta review, claiming “significant Executive branch confidentiality interests” in the document, and alleging a classification breach had occurred.

(Parenthetically, the security marking on this letter is “Unclassified/For Official Use Only,” a grading which in recent years has repeatedly been construed as conveying a degree of secrecy protection, but which Brennan ignored in his release of it, not to mention its status as a private communication. The release of this document had to be for the purpose of providing ammunition to critics of the SSCI inquiry.)

“Balanced and accurate” history? Sounds like Fox News. Let’s take up the matter of the notorious CIA refutation of the Senate’s investigative report, which is also at the center of this dispute. Former CIA general counsel Stephen W. Preston was grilled about this rebuttal in August 2013. These facts came to the surface in Preston’s questions for the record: The CIA response was commissioned by Michael J. Morrell, then the acting director, who had been the second in command of the operations directorate when the rendition and black prison project was initiated. It was Morrell, according to his chief lawyer, who “deemed it impractical to respond on a line-by-line basis.” So the twenty conclusions in the Senate report’s executive summary were farmed out among a response team for a “deep dive.” Each analyst took his subject, reviewed what the SSCI concluded about it, and may have consulted either or both the underlying detailed text and the documents on which the Senate committee had based their conclusions. In other words, in compiling its rebuttal no one at the CIA even read the entire SSCI report.  Preston admitted, “the agency’s response does not constitute an encyclopedic treatment of the SSCI study.”

The reasons the CIA is on the hook today is that it is losing White House support while still being unable to countenance the surfacing of an awesome body of evidence demonstrating its misbehavior–not in the abusive torture program alone but also in the details it furnished the Justice Department for those outrageous torture “opinions,” and in the information it provided to Congress. National security is not the reason Langley won’t release the Senate torture report or its response. This is about Family Jewels.


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