Sen. Dianne Feinstein’s extraordinary statement Tuesday accusing the CIA of spying on Senate oversight staff and secretly removing documents under review suggests a rat’s nest of potential legal troubles for the intelligence agency.
The Intelligence Committee chairman took to the Senate floor in response to what she said was an attempt by the acting general counsel at the CIA to intimidate members of her staff by accusing them of illegally removing a sensitive CIA document from a secure location.
Senator Feinstein, a California Democrat, responded with charges of her own, accusing the agency of violating the US Constitution and federal law.
“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,” Feinstein said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.”
In addition to the constitutional implications, Feinstein said CIA actions “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.”
The Constitution’s Speech and Debate Clause states that members of Congress shall not be arrested for anything said in a speech or debate while in legislative session. It was designed by the Framers to foster open debate and to insulate lawmakers from improper pressure or intimidation by the Executive Branch. It is legally significant, therefore, that the senator made her remarks on the Senate floor rather than in a press conference or private phone call.
The Constitution’s Fourth Amendment requires government officials to obtain a judicially-authorized warrant before searching a private area like a computer.
CIA Director John Brennan was quoted Tuesday as denying that his agency engaged in any wrongdoing. He said the agency was not spying or trying to block the Senate committee’s work.
Feinstein’s comments are evidence of a substantial rift between the nation’s top spy agency and the senator, who has long been an outspoken supporter of the nation’s intelligence mission.
Feinstein played a leading role in defending controversial surveillance programs at the National Security Agency following revelations last year by former NSA contractor Edward Snowden of wide-spread meta-data collection by the agency.
The current rift with the CIA, however, relates to the Intelligence Committee’s ongoing effort to examine the interrogation and detention program carried out during the Bush administration’s war on terror.
President Obama officially ended the program in 2009, but many of the intelligence officials involved in the program are still at the agency and apparently are concerned about the committee’s investigation.
After years of work, the committee has assembled a 6,300-page report, a portion of which Feinstein is seeking to release to the public.
Critics of the interrogation program allege that it sanctioned the use of torture to try to pry intelligence information from suspected terrorists and other detainees.
Defenders admit that harsh tactics were used, but insist the efforts were legal and effective in gathering intelligence.
In her remarks on the Senate floor, Feinstein hinted that the committee’s findings are not pretty. She said reviewing staff members were forced to wade through the “horrible details of a CIA program that never, never, never should have existed.”
She said the committee’s comprehensive report grew out of an initial review conducted by two staff members and completed in early 2009.
“The resulting staff report was chilling,” she said of the initial review. “The interrogations and the conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”
That’s when the broader committee investigation began. As part of its Congressional oversight responsibilities, the committee and the CIA agreed that Senate staff members with all necessary security clearances would review documents in a secure facility with computers set up by the CIA in northern Virginia.
The CIA produced some 6.2 million pages of material on the secret interrogation and detention program, providing what Feinstein called a “document dump.”
The CIA included no index or summaries to help the Senate staffers, Feinstein said. It did, however, provide a search engine on the secure computer system.
Feinstein noted that twice in 2010 the CIA secretly entered the secure computer system to remove documents from the system. The agency removed 870 documents in February 2010 and another 50 documents in May.
Feinstein said she complained to the White House and was assured that there would be no further unauthorized access by the CIA into the Senate committee’s computers and work product.
The latest controversy relates to an admission in January by CIA Director John Brennan to Feinstein that agency personnel had conducted a “search” of the Senate committee’s computers at the secure CIA facility.
They were looking for copies of an internal review of the interrogation and detention program conducted at the direction of former CIA Director Leon Panetta.
CIA officials had assumed that the document was obtained through a leak from the agency and were apparently trying to recover it.
Feinstein said the documents, known as the Internal Panetta Review, were produced as part of the document dump and discovered by staff members.
“We have no way to determine who made the Internal Panetta Review documents available to the committee,” she said. “Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.”
The Internal Panetta Review is important for two reasons. First, the analysis acknowledges “significant CIA wrongdoing,” according to Feinstein.
Second, the Internal Panetta Review analysis dove-tails with conclusions reached by the Senate Committee report, but interestingly the CIA today disputes many issues raised in the Panetta Review and in the committee report.
“To say the least, this is puzzling,” Feinstein said. “How can the CIA’s official response to our study stand factually in conflict with its own internal review?”
Recognizing the importance of the Panetta Review, the Senate staff removed a copy of it from the secure CIA location and held it in a secure location in the Senate office building, Feinstein said.
The CIA now says that removal was unlawful, and the agency’s acting general counsel has asked the Justice Department to investigate.
In response, Feinstein is asking the Justice Department to investigate whether the CIA violated the long-time prohibition on carrying out espionage operations within the US.
She also charges that the CIA “search” of the Senate committee’s computers violated the Fourth Amendment right to be free from unreasonable searches and seizures. In addition, she said, it constituted a violation of federal law protecting computers from unauthorized access.
Feinstein noted that the CIA’s acting general counsel who accused her staff members of illegal conduct had himself worked in the CIA’s Counter Terrorism Center and was the chief lawyer for the section responsible for the interrogation and detention program. Feinstein said his name appears in the Senate report 1,600 times.
“We’re not going to stop,” Feinstein said in response to the threatened criminal investigation.
“I intend to move to have the findings, conclusions, and the executive summary of the report sent to the president for declassification and release to the American people,” she said.
“If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted,” she said.