Senate staffers took secret CIA papers years before agency realized
By JONATHAN S. LANDAY, ALI WATKINS AND MARISA TAYLOR | McClatchy Washington Bureau | Published: March 8, 2014
WASHINGTON — Democratic staffers of the Senate Intelligence Committee obtained classified documents at the center of a bitter struggle with the CIA some three years before the agency determined that the materials had been spirited out of a secret facility and demanded their return, according to U.S. officials.
The officials cited the timing of the discovery in contending that the CIA didn’t actively monitor computers used by the staffers to compile a report on the agency’s secret detention and interrogation program, but instead had to go back and scour security logs kept on all classified systems.
The alleged unauthorized removal of the documents, which is being investigated by the FBI, triggered the unprecedented battle over the authority of the committee, which was created in 1976 to oversee U.S. intelligence organizations in the wake of a series of domestic spying scandals. And what also remains unknown is what secrets about the controversial interrogation program might be contained in the documents now in dispute.
The CIA’s refusal to provide the documents to the committee, several Democratic senators contend, is evidence that the agency has been trying to stymie the release of a potentially damning report.
Some people familiar with the matter have defended the committee staffers’ action as arguably within the legal and constitutional authority of the CIA’s congressional overseers, and they questioned the decision by the agency’s Office of General Counsel to seek a criminal investigation.
“A concern is the appearance that DOJ (the Department of Justice) could be used as a way to intimidate committee members into being less aggressive,” said a congressional attorney who has closely followed the controversy. “The practical effect is everyone on the committee begins reconsidering how much pressure they should bring to bear on the agency.”
The congressional attorney is not on the Intelligence Committee and requested anonymity because of the sensitivity of the matter.
Separately, the CIA Inspector General’s Office asked the Justice Department to open a criminal investigation into what committee staffers viewed as the unauthorized monitoring of the computers they used inside the CIA facility in which they reviewed the highly classified materials underpinning their report.
It couldn’t be learned if such a probe is underway. The Justice Department, the FBI, the CIA and the committee declined to comment.
The tug-of-war over the documents has stoked considerable uncertainty over whether the public will ever get to read any parts of the top-secret 6,300-page report on the CIA’s use during the George W. Bush administration of waterboarding and other harsh interrogation methods on suspected terrorists held in secret overseas “black site” prisons. The program was ended in 2006.
The study broadly concluded that the techniques — which many experts and governments condemn as torture — produced little valuable intelligence, according to statements by lawmakers who have read the findings.
The study also determined that the agency misled the White House, Congress and the public about the usefulness of the information.
The CIA and the Bush administration hold that the techniques were legal, and the CIA disputed some of the findings in the official response it submitted to the committee in June. President Barack Obama has called waterboarding “torture.”
Under an agreement with the CIA, the Intelligence Committee staff was required to access millions of emails, reports, operational cables and other top-secret documents related to the program in an electronic reading room inside a secret agency facility in Northern Virginia.
The materials were first reviewed by a team of CIA officials and contractors. They logged and dumped materials that they had cleared on the other side of a firewall in a database accessible by the committee staff, explained a U.S. official, who requested anonymity because he wasn’t authorized to discuss the matter on the record.
Former CIA Director Leon Panetta convened a separate team of CIA officials to review and summarize all of the documents that had been provided to the Senate after finding that “there wasn’t a good accounting” of the actual contents of the material, said the U.S. official.
The creation of the summaries stopped in 2010 after Attorney General Eric Holder appointed a special counsel to determine whether there were grounds for any prosecutions related to the detention and interrogation program, the official said. No criminal cases were ever launched.
As early as 2010, the staffers somehow gained what the U.S. official described as unauthorized access to the top-secret Panetta review summaries that were stored on a computer network on the CIA’s side of the firewall. It still hasn’t been determined how the breach occurred.
“They found a way to get ahold of these documents,” said the U.S. official. “That’s some troubling stuff.”
The materials were stamped pre-decisional, draft and deliberative, markings that showed that they were beyond the staff’s authority to access, said the U.S. official.
At some point, the staffers printed out the documents, walked them out of the facility and took them to the committee’s high-security offices in the Hart Senate Office Building on Capitol Hill, according to four U.S. officials.
In doing so, the first U.S. official asserted, the staffers violated an agreement under which they were required to clear with an agency official any printed document they wanted to remove from the facility.
They also breached a provision limiting their research to documents produced inside a specific range of dates that the committee had agreed to, he contended.
In November, the U.S. official said, the CIA received a letter from the committee chairwoman, Sen. Dianne Feinstein, D-Calif., officially requesting the Panetta review documents.
Nobody in senior management knew at first what Feinstein was referring to, said the U.S. official. Eventually, someone identified them as the summaries of documents provided to the committee.
In the meantime, the agency received more letters demanding a copy of the review. At a hearing in December, Sen. Mark Udall, D-Colo., disclosed the review’s existence without saying how he had learned of it. He contended that the review broadly corroborated the committee’s findings, and he questioned why it was dramatically different from the CIA’s official response.
It was only after Udall wrote to Obama in January to demand that the president order the Panetta review be turned over to the committee that the CIA examined the computers’ “audit logs” and confirmed that they had accessed and printed out the documents from the CIA’s side of the firewall, U.S. officials said.
“It eventually becomes apparent that they had the documents,” said the first U.S. official. “It was the majority staff, not minority. It was just the Democrats.”
The U.S. officials disputed charges that the CIA spied on the staff’s computers. As in other federal departments, the agency is required by presidential order to maintain systems that record how each of its computers is operated, a safeguard used when security breaches are suspected. The committee staff initially was told about the audit system in a security briefing and raised no objection, the officials said.
CIA Director John Brennan confronted Feinstein and her vice chairman, Sen. Saxby Chambliss, R-Ga., in early January with what the CIA contended was a serious security violation, and they accepted his offer to conduct a joint investigation into how it had occurred, U.S. officials said. Feinstein, however, then changed her mind.
A CIA demand for the return of the documents has gone unheeded, the first U.S. official said.
The congressional attorney was skeptical that the breach represented a significant criminal violation.
“What’s more important in this dispute?” asked the congressional attorney. “The possible violation of a user agreement or preserving possible evidence of an obstruction of the committee’s investigation?”