Previously: Part 1
Unlike the official response, these Panetta Review documents were in agreement with the committee’s findings. That’s what makes them so significant and important to protect.
When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.
As I have detailed, the CIA has previously withheld and destroyed information about its Detention and Interrogation Program, including its decision in 2005 to destroy interrogation videotapes over the objections of the Bush White House and the Director of National Intelligence. Based on the information described above, there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.
Feinstein wrote to the agency requesting complete copies of the Panetta review. Sen. Udall also requested the documents in a committee hearing. The CIA denied the request, claiming that it was incomplete and ‘deliberative.’
That’s when the CIA went into full protection mode and insisted they be allowed to conduct a search of the committee’s computers.
In late 2013, I requested in writing that the CIA provide a final and complete version of the Internal Panetta Review to the committee, as opposed to the partial document the committee currently possesses.
In December, during an open committee hearing, Senator Mark Udall echoed this request. In early January 2014, the CIA informed the committee it would not provide the Internal Panetta Review to the committee, citing the deliberative nature of the document.
Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.
After searching their computers Brennan began to claim that the Panetta documents were obtained improperly and declared that he was going to conduct an investigation into committee staffer procedures and activities.
Director Brennan stated that the CIA’s search had determined that the committee staff had copies of the Internal Panetta Review on the committee’s “staff shared drive” and had accessed them numerous times. He indicated at the meeting that he was going to order further “forensic” investigation of the committee network to learn more about activities of the committee’s oversight staff.
Two days after the meeting, on January 17, I wrote a letter to Director Brennan objecting to any further CIA investigation due to the separation of powers constitutional issues that the search raised. I followed this with a second letter on January 23 to the director, asking 12 specific questions about the CIA’s actions—questions that the CIA has refused to answer.
Some of the questions in my letter related to the full scope of the CIA’s search of our computer network. Other questions related to who had authorized and conducted the search, and what legal basis the CIA claimed gave it authority to conduct the search. Again, the CIA has not provided answers to any of my questions.
My letter also laid out my concern about the legal and constitutional implications of the CIA’s actions. Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.
I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I received neither.
Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
Not only did the search and removal of documents from the committee computers indicate an attempt to cover-up the corroborating information contained in the Panetta internal review, the attempt to smear committee staffers with criminal charges for obtaining the documents (through the procedures and search tools that the CIA had actually provided them) was an interference and an attempt to intimidate the committee from conducting a thorough investigation of the agency’s activities.
Moreover, there was a conflict of interest, in that the acting general counsel attempting to criminalize the efforts of the committee staffers was a lawyer in the very division which carried out the interrogation procedures in question.
As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.
Mr. President, let me say this. All Senators rely on their staff to be their eyes and ears and to carry out our duties. The staff members of the Intelligence Committee are dedicated professionals who are motivated to do what is best for our nation.
The staff members who have been working on this study and this report have devoted years of their lives to it—wading through the horrible details of a CIA program that never, never, never should have existed. They have worked long hours and produced a report unprecedented in its comprehensive attention to detail in the history of the Senate.
They are now being threatened with legal jeopardy, just as the final revisions to the report are being made so that parts of it can be declassified and released to the American people . . .
Brennan’s admissions have already answered the question of whether the chilling activities occurred. The question remains of why the agency head would go to such extreme and unconstitutional lengths to stifle the Panetta internal review and the Senate committee investigator’s efforts to present the documents as part of their report.
Evidently, the CIA felt those documents were damning enough to attempt to withhold and conceal them. It still begs the question of why this administration would go so far to conceal and obfuscate the misdeeds of the previous one. What was their stake in working to muddle the record and discredit the investigators? What are they hiding?
I tend to believe his reluctance to allow full disclosure of the Bush-era abuses are mostly a protection and defense against revelations about his own administration’s conduct which has co-opted/inherited many material aspects of Bush’s ‘war on terror.’
In many ways he appears to be protecting his own prerogatives to employ many of those objectionable and institutionally embarrassing methods and operations, like ‘extraordinary renditions’ and allowing interrogation techniques to be performed on the U.S. behalf in other countries which look the other way regarding such abuses. That’s reflected in the way that the administration is opposing the Senate committee efforts to reveal those countries that aided the Bush administration in those efforts.
I truly believe that we are already suffering from the refusal to hold the previous administration accountable. I think that is evident in the manner in which this White House appears to be holding onto many of the more egregious of abuses that we’re decrying about the last one; notably, the continued renditions; the continued use of other nations to carry out acts on behalf of our nation in the name of ‘national security’ which our own country has either outlawed or has determined objectionable conduct.
I don’t think it’s sufficient to point to the executive order the President correctly directed early in his administration which only covers “some” of the abuses in question, as he mentioned in his statement lecturing us about getting too ‘sanctimonious’ in our expectations of accountability and judgment of those who ordered the criminal and immoral abuses.
I think there’s ample evidence that there are a number of actions that fall within the President’s admonitions that “we did some things that were wrong;” including some conduct that’s continuing right in front of us, like at Gitmo, where some tortures are not considered by this administration as crimes or even as objectionable.
Those are some of the areas that I feel would bear, should bear more scrutiny from our legislature. I don’t think anyone would be seriously talking about the President’s responsibility in any of that if he hadn’t inserted himself into the debate so overtly in several ways.
One of the more obvious is his refusal to move forward with any accountability beyond ‘allowing’ the publicizing of the Senate Intelligence report. Even at that, under President Obama’s ultimate authority, the CIA has foot-dragged and outright obstructed the intelligence committee’s attempt to investigate and report their findings.
Instead of fumbling through my own understanding of events, let me offer some accounts that I believe are credible.
Marcy Wheeler was a high profile journalist reporting on the Scooter Libby trial. In 2013, Newsweek published an article about Wheeler titled “The Woman Who Knows The NSA’s Secrets.”
Here’s Marcy in March:
We can be sure about one thing: The Obama White House has covered up the Bush presidency’s role in the torture program for years. Specifically, from 2009 to 2012, the administration went to extraordinary lengths to keep a single short phrase, describing President Bush’s authorization of the torture program, secret.
Some time before October 29, 2009, then National Security Advisor Jim Jones filed an ex parte classified declaration with the U.S. District Court for the Southern District of New York, in response to a FOIA request by the ACLU seeking documents related to the torture program. In it, Jones argued that the CIA should not be forced to disclose the “source of the CIA’s authority,” as referenced in the title of a document providing “Guidelines for Interrogations” and signed by then CIA Director George Tenet. That document was cited in two Justice Department memos at issue in the FOIA. Jones claimed that “source of authority” constituted an intelligence method that needed to be protected.
. . . The White House’s fight to keep the short phrase describing Bush’s authorization of the torture program hidden speaks to its apparent ambivalence over the torture program. Even after President Obama released the DOJ memos authorizing torture – along with a damning CIA Inspector General Report and a wide range of documents revealing bureaucratic discussions within the CIA about torture – the White House still fought the release of the phrase that would have made it clear that the CIA conducted this torture at the order of the president. And it did so with a classified declaration from Jones that would have remained secret had Judge Hellerstein not insisted it be made public.
Now, you might respond that this is still mostly about the actions of the previous administration. That’s correct, but there’s obviously some institutional reason for resisting disclosure of their activities in court and in outright refusal to comply with information requests from interested parties in the legislature. Most notably is the drone program which has the same authorization structure that the Bush-era actors practiced and are presently defending against this report.
That’s an area (and several others like GITMO) where I believe, and many others believe, is where the President’s desire to protect his prerogative is influencing his foot dragging on a complete accounting of the previous administration’s conduct. If that speculation seems obtuse and hard to confirm, it’s because it’s designed to by the administration, many feel, to hide the fact that it is his own order which allows these objectionable, and possibly illegal, programs to operate or continue.
Certainly all of those policies can be debated and resolved in some way through making those actions available to the legislature to mitigate and judge. That’s not a course this administration has chosen to take on a number of remnants from Bush’s ‘war on terror;’ like renditions, torture-friendly nations, ‘extra-judicial killings, and the like. Authorization on all of these may well be successfully mitigated through Congress, but the President has made a determination to hold back accountability for whatever authority he’s assumed to carry out these policies and actions (to order them).
Those are areas where the Bush-era abuses and the present activities of the Obama CIA collide. Those are the prerogatives of President Obama which he shares with the former administration that he’s fought to obscure and keep secret through many questionable moves.
That obstruction, that collusion with the prerogatives of the Bush administration’s ‘war on terror’ may well have withstood legislative attempts to delve deeper and demand more public accountability, but the Senate was spurred to investigate the CIA activities under Bush because of deliberate, and admitted destruction of key evidence. having been confronted about that by Congress. the agencies involved agreed to provide dual paperwork which they claimed contained the same evidence that had been discarded. That’s where the present investigation took over, first under Jay Rockefeller, then under Sen. Feinstein in 2009.
In the course of that investigation, there was systematic and blatant interference, obstruction, surveillance, and intimidation of committee staffers by the Brennan/Obama CIA. It was first denied by the director when confronted in March; later admitted in July. Added to that, the president put this same interfering and obstructing CIA in charge of editing the ‘executive summary’ of the Senate Intelligence Committee findings which is to be the ONLY public accounting of the actions of the former administration.
Right after the President addressed reporters on the torture report, it was revealed by Senate committee members that the documents they submitted to the White House, to the President, for approval for release had been heavily redacted and had “eliminated and obscured key information” which supported the report’s conclusions.
That editing process was/is being led by Brennan, who admitted his agency’s role, the agency he oversees, in obstructing those findings. Further, an effort to rebut the report is reportedly being directly aided by all three former CIA directors under Bush and others who participated in or ordered the activities and abuses in question in the report’s findings.
Let’s go back to the questions I asked in the opening: What did the President know about the CIA’s obstruction, interference, and intimidation of Senate Intelligence Committee staffers investigating the agency’s activities?
What role did the President have in what Sen. Feinstein terms ‘eliminating or obscuring key facts that support the report’s findings and conclusions?’
I’m asking, at what point do we conclude that there’s enough evidence that the Obama White House is unlawfully obstructing the Senate investigation’s report? Do we wait for the Senate committee members to say so? (they’ve come very close to that conclusion) I’m all for waiting to see what the White House ultimately decides to leave in and leave out of it’s ‘executive summary’ of the investigation’s findings, but there’s already enough interference, obstruction, intimidation, and ‘redacting’ on the record for me to conclude that something major is being perpetrated – even if someone in or out of the WH can rationalize us away from calling it a ‘cover-up.’
I would further ask or seek to uncover, what role the Obama CIA has played in not only protecting or defending the prerogatives of the Bush-era abuses, but how many of those have been continued or perpetuated in this administration and into the future for other Presidents to advantage their own actions?
In all of that, I see serious questions of obstruction of justice; violations of the Fourth Amendment; violations of the separations of powers, including the Speech and Debate clause; and as Sen. Feinstein put it, actions which may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.
As in all important and consequential inquires, they are just that: inquiries. That is, if and up until something is revealed in that inquiry which is found to be illegal, unethical, or out of the bounds of what Congress is willing to allow. The process of inquiry isn’t necessarily a determinative one. Nor does a prosecution effort necessarily mean a conviction.
What most people are asking for is due process of law, and a responsiveness to the oversight responsibilities of our legislature. that is the area where this administration has, I believe, inserted itself in an overt and questionable manner. I wonder why?
What is is about the prerogatives of the present Obama CIA that is preventing them from being as open as the Senate Intelligence Committee desires and expects? That’s the pretext the President is giving critics and investigators to tie him to the abuses and activities of the Bush-era tortures; the cover-up. That’s what has been the sticking point in most ‘scandals’ involving the Executive Branch. I happen to believe that most of the obstruction is unnecessary, but obviously, this administration, this President, feels there’s something in that process for him to defend.
The manner in which it’s being defended by the administration is the subject of debate, as it should be. This isn’t inadvertent obstruction, it’s deliberate and highly questionable behavior which is trampling on more than a few laws. I happen to think the President would be better served to order all relevant information be revealed. I think he would disagree with that. So, there we are.
We’ll see how far President Obama is willing for his CIA to bend to the wishes of the Senate investigators in the coming weeks, but I don’t think we should lose sight of, or refuse to seek accountability for the obstruction from those offices, over which he has ultimate authority, that’s already occurred.
Content posted to MyMPN open blogs is the opinion of the author alone, and should not be attributed to MintPress News.