California Senator, Long a CIA Defender, Charges Obstruction of Congressional Oversight

Please join us in calling Senator Dianne Feinstein (202-224-3841 or 415-393-0707) to say thanks and, as we said to her staffer, “keep up the courage” for having spoken out yesterday on the floor of the Senate against the CIA’s spying on Congress and trying to sabotage the oversight efforts of the Senate Select Committee on Intelligence. The particular investigation at issue concerns a report on the “enhanced interrogations” conducted by the CIA in secret prisons from shortly after September 11, 2001, until January 2009.

Here we’ll hand it over to The New Yorker’s Amy Davidson, who posted “Diane Feinstein Calls Out the CIA” online March 11:

This all goes back to the first years after September 11th. The C.I.A. tortured detainees in secret prisons. It also videotaped many of those sessions. Those records should have been handed over, or at least preserved, under the terms of certain court orders. Instead, in November, 2005, a C.I.A. official named Jose Rodriguez had ninety-two videotapes physically destroyed. “Nobody wanted to make a decision that needed to be made,” he told me when I interviewed him in 2012. (He also said, “I really resent you using the word ‘torture’ time and time again.”)

Feinstein, in her speech, said that the C.I.A.’s “troubling” destruction of the tapes put the current story in motion. Michael Hayden, then director of the C.I.A., had offered the committee cables that he said were just as descriptive as the tapes. “The resulting staff report was chilling,” Feinstein said. The committee voted to begin a broader review. The terms were worked out in 2009, and staff members were given an off-site facility with electronic files, on computers supposedly segregated from the C.I.A.’s network, that added up to 6.2 million pages—“without any index, without any organizational structure. It was a true document dump,” Feinstein said. In the years that followed, staff members turned that jumble into a six-thousand-page report, still classified, on the C.I.A.’s detention practices. By all accounts, it is damning.

But, Feinstein said, odd things happened during the course of the committee members’ work. Documents that had been released to them would suddenly disappear from the main electronic database, as though someone had had second thoughts—and they knew they weren’t imagining it, “Gaslight”-style, because, in some cases, they’d printed out hard copies or saved the digital version locally. When they first noticed this, in 2010, Feinstein objected and was apologized to, “and that, as far as I was concerned, put the incidents aside.” Then, after the report was completed, the staff members noticed that at some point hundreds of pages of documents known as the “Panetta review” had also, Feinstein said, been “removed by the C.I.A.”

The Panetta review was the C.I.A’s note to itself on what might be found in all those millions of documents. Apparently, it is damning, too. The six-thousand-page report didn’t rely on it; the report didn’t have to, because it had the documents themselves. The Panetta review became important only after the C.I.A. saw the draft of the committee’s report and fought back. The agency offered a classified rebuttal (again, the report is still classified); publicly, without being specific, it said that the Senate had gotten a lot wrong, that its facts were off, its judgments mistaken. Then, in December, Senator Mark Udall, in an open hearing, said that this was a funny thing for the C.I.A. to say, given that its internal review (the Panetta review) sounded a whole lot like the Senate report. Or, as Feinstein put it this morning,

To say the least, this is puzzling. How can the C.I.A.’s official response to our study stand factually in conflict with its own internal review?

This is where the C.I.A. seems to have lost its bearings and its prudence. As Feinstein noted, there have been comments to the press suggesting that the only way the committee staff members could have had the Panetta review is if they’d stolen it. The pretense for the search of the committee’s computers—where the staff kept its own work, too—was that there had been some kind of security breach. Feinstein says that this is simply false: maybe the C.I.A. hadn’t meant for the Panetta review to be among the six million pieces of paper they’d swamped the Senate with, but it was there. (Maybe a leaker had even tucked it in.) And she made a crucial, larger point about classification:

The Panetta-review documents were no more highly classified than other information we had received for our investigation. In fact, the documents appeared based on the same information already provided to the committee. What was unique and interesting about the internal documents was not their classification level but rather their analysis and acknowledgement of significant C.I.A. wrongdoing.

In other words, there were no particular secrets, in the sense of sources and methods and things that keep us safe. Instead, there was the eternal category confusion of the classifier: that avoiding political embarrassment, and basic accountability, is the same thing as safeguarding national security.

Whose embarrassment? John Brennan was at the C.I.A. when it used torture. During President Obama’s first term, he was in the White House, and got the President’s trust. In his confirmation hearings, he suggested that he had learned something from the Senate report; as director, he has tried to discredit it. Obama had made a decision early on not to pursue prosecutions of C.I.A. officials for torture and other crimes. He gave them a bye. Feinstein herself has been a prominent defender of the intelligence community, notably with regard to the N.S.A.’s domestic surveillance and collection of telephone records. It is bafflingly clumsy of the Agency to have so alienated her.

Feinstein suggested that this was why it particularly enraged her that the acting general counsel of the C.I.A., who had been, she noted, the lawyer for “the unit within which the C.I.A. managed and carried out this program,” had referred her committee’s possession of the Panetta review to the Department of Justice as a possible criminal act. (There is also an investigation of the C.I.A.’s own role.) “He is mentioned by name more than sixteen hundred times in our study,” Feinstein said. (That name is Robert Eatinger.) “And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff”; the people working for her were “now being threatened with legal jeopardy just as final revisions to the report are being made.”

There were crimes, after September 11th, that took place in hidden rooms with video cameras running. And then there were coverups, a whole series of them, escalating from the destruction of the videotapes to the deleting of documents to what Feinstein now calls “a defining moment” in the constitutional balance between the legislature and the executive branch, and between privacy and surveillance. Senator Patrick Leahy said afterward that he could not remember a speech he considered so important. Congress hasn’t minded quite enough that the rest of us have been spied on. Now Feinstein and her colleagues have their moment; what are they going to make of it?

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See also:

•  The New York Times, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry” by Mark Mazzetti and Jonathan Weisman (3/12/14): “A festering conflict between the Central Intelligence Agency and its congressional overseers broke into the open Tuesday when Senator Dianne Feinstein, chairwoman of the Intelligence Committee and one of the C.I.A.’s staunchest defenders, delivered an extraordinary denunciation of the agency, accusing it of withholding information about its treatment of prisoners and trying to intimidate committee staff members investigating the detention program.”

•  The New York Times, “C.I.A. Employees Face New Inquiry Amid Clashes on Detention Program” by Mark Mazzetti (3/4/14): “The Central Intelligence Agency’s attempt to keep secret the details of a defunct detention and interrogation program has escalated a battle between the agency and members of Congress and led to an investigation by the C.I.A.’s internal watchdog into the conduct of agency employees.”

•  And see Rachel Maddow’s March 11 coverage here.

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Photo credit: Detail of photo by Tom Williams/CQ Roll Call/Getty in The New Yorker online.

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