Constitutional Crisis as Feinstein Accuses CIA of 'Intimidating' Senate over Torture Report
March 12, 2014
Dan Roberts and Spencer Ackerman / The Guardian & Paul Lewis / The Guardian & David Corn / Mother Jones
Allegations of CIA snooping on congressional investigators has put the whole premise of secret government in question. Sen. Dianne Feinstein has accused the CIA of cover-ups, intimidation and smears aimed at investigators probing its role in "un-American" acts of detention and torture. Meanwhile, whistleblower Edward Snowden has noted that Feinstein's outrage over the CIA spying on her staff was not matched by concern about widespread surveillance of ordinary citizens.
Feinstein Accuses CIA of 'Intimidating' Senate Staff over Torture Report
Dan Roberts and Spencer Ackerman / The Guardian
WASHINGTON (March 11, 2014) -- The chairwoman of the Senate intelligence committee, Dianne Feinstein, on Tuesday accused the Central Intelligence Agency of a catalogue of cover-ups, intimidation and smears aimed at investigators probing its role in an "un-American and brutal" programme of post-9/11 detention and interrogation.
In a bombshell statement on the floor of the US Senate, Feinstein, normally an administration loyalist, accused the CIA of potentially violating the US constitution and of criminal activity in its attempts to obstruct her committee’s investigations into the agency’s use of torture. She described the crisis as a "defining moment" for political oversight of the US intelligence service.
Her unprecedented public assault on the CIA represented an intensification of the row between the committee and the agency over a still-secret report on the torture of terrorist suspects after 9/11.
Feinstein, who said she was making her statement "reluctantly", confirmed recent reports that CIA officials had been accused of monitoring computer networks used by Senate staff investigators. Going further than previously, she referred openly to recent attempts by the CIA to remove documents from the network detailing evidence of torture that would incriminate intelligence officers.
She also alleged that anonymous CIA officials were effectively conducting a smear campaign in the media to discredit and "intimidate" Senate staff by suggesting they had hacked into the agency’s computers to obtain a separate, critical internal report on the detention and interrogation programme.
Staff working on the Senate investigation have been reported to the Department of Justice for possible criminal charges by a lawyer at the CIA who himself features heavily in the alleged interrogation abuses.
The CIA’s inspector general has another inquiry open into the issue. John Brennan, the CIA director, rejected Feinstein’s claims that the agency had monitored the Senate committee’s computer networks, which were set up specifically for it to access confidential CIA documents.
Feinstein said the two investigations, launched at the behest of the CIA, amounted to an attempt at "intimidation". She revealed that CIA officials had also been reported to the Department of Justice for alleged violations of the fourth amendment and laws preventing them from domestic spying.
"This is a defining moment for the oversight role of our intelligence committee ... and whether we can be thwarted by those we oversee," said Feinstein in a special address on the floor of the the US Senate.
"There is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime... this is plainly an attempt to intimidate these staff and I am not taking it lightly."
Feinstein said that she would immediately appeal to the White House to declassify the report’s major findings. The White House is formally on record as supporting the declassification, which the president has the power to order.
Last week, CIA director John Brennan, a former counterterrorism aide to President Obama, issued a rare scathing public statement on the deepening crisis, suggesting that unspecified "wrongdoing" had occurred in "either the executive branch or legislative branch."
Brennan, who withdrew from consideration as CIA director in 2008 out of allegations he did not consider torture to be a serious offence, is a year into his tenure after being nominated by Obama .
At a previously scheduled event reflecting on the first year on Tuesday, Brennan rejected the accusation that the CIA had thwarted the Senate investigation, and denied the agency had inappropriately accessed Senate computers. "Nothing could be further from the truth. We wouldn’t do that," he said. Brennan pointed out that he had referred the matter to the CIA inspector general, who was investigating, and would defer to his conclusions.
He also acknowledged there was a Justice Department investigation that encompassed the Senate committee staff members. "There are appropriate authorities are looking at what CIA officers and SSCI staff members did – and I defer to them as to whether there was any violation," he said.
Brennan said the CIA wanted to put the issue of the torture programme, which he described by its agency nomenclature as "rendition, detention and interrogation", behind it. "Even as we have learned from the past, we must also try to put the past behind us." he said.
The White House said Obama was aware of the Senate claims but refused to say whether the president was concerned or pass comment on the substance of the allegations. "This is a matter involving protocols established for the interaction between committee staff and the CIA," said spokesman Jay Carney. "There are periodic disputes about this process and it is under two separate investigations so I am not going to provide an analysis of it."
He also criticised reporters who questioned the independence of the review led by the CIA inspector general, accusing one of "impugning the integrity" of inspectors general across Washington by suggesting such a review was insufficient response to allegations of this magnitude. The White House has "great confidence" in CIA director John Brennan, added Carney.
On the Senate floor earlier, Patrick Leahy, chairman of the judiciary committee and the longest serving US senator, described Feinstein’s speech at the most important he had witnessed in his time in Congress.
"I cannot think of any speech by any member of any party as important as the one the senator from California just gave," Leahy said.
Senator Mark Udall of Colorado, an intelligence committee member, said in a statement he applauded Feinstein for "setting the record straight today on the Senate floor about the CIA’s actions to subvert congressional oversight".
Udall said: "The actions the chairman outlined are the latest events that illustrate why I directly pushed CIA director Brennan to acknowledge the flaws in and misrepresentations about the CIA’s brutal and ineffective detention and interrogation program.
"Unfortunately, the CIA responded by trying to hide the truth from the American people about this program and undermine the Senate intelligence committee’s oversight role by illegally searching committee computers."
In her speech, Feinstein described repeated attempts by the CIA to frustrate the work of Senate investigators, including providing the committee staff with a "document dump" of millions of non-indexed pages, requiring years of work to sort through – a necessity, Feinstein said, after former senior CIA official Jose Rodriguez destroyed nearly 100 videotapes showing brutal interrogations of detainees in CIA custody.
"We are not going to stop our investigation and have sent our report to the president in the hope it can be declassified and published for the American people to see," Feinstein said on the Senate floor.
She said the goal of declassifying the report, exposing the "horrible details of a CIA programme that never, never should have existed," was to prevent torture from ever again becoming American policy.
Zeke Johnson of Amnesty International called on the White House to publish the committee’s report. "President Obama, who has claimed to have the most transparent administration in history, should move immediately to declassify and release the report. Otherwise, the legacy of torture he inherited will become his own," he said.
Snowden Accuses Senate Intelligence Chair of Hypocrisy over CIA Disclosures
Paul Lewis / The Guardian
WASHINGTON (March 11, 2014) -- The whistleblower Edward Snowden accused the chair of the Senate Intelligence Committee of double standards on Tuesday, pointing out that her outrage at evidence her staff were spied on by the CIA was not matched by concern about widespread surveillance of ordinary citizens.
Snowden, the former contractor whose disclosures to journalists revealed widespread surveillance by the National Security Agency, was responding to an explosive statement by Senator Dianne Feinstein about the CIA’s attempts to undermine a congressional investigation into interrogation and detention.
In a surprisingly combative statement on the Senate floor on Tuesday, Feinstein, who has been widely criticised by privacy experts for failing to hold the NSA to account, accused the CIA of conducting potentially unconstitutional and criminal searches on computers used by her staff.
The remarks put the Democratic senator on a collision course with the CIA’s director, John Brennan, who strongly denied "hacking" the committee’s computers. Feinstein described the controversy as "a defining moment for the oversight of our intelligence community".
In a statement to NBC News, Snowden said: "It’s clear the CIA was trying to play ‘keep away’ with documents relevant to an investigation by their overseers in Congress, and that’s a serious constitutional concern."
Snowden, who is in Russia on temporary asylum, added: "But it’s equally if not more concerning that we’re seeing another ‘Merkel effect,’ where an elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it’s a scandal when a politician finds out the same thing happens to them."
Snowden’s comment referred to the German chancellor Angela Merkel, who was outraged to discover her phone calls has been monitored by the NSA. Germany has raised concerns over wider surveillance programs, but critics argue that Merkel should have gone further in condemning the NSA’s dragnet monitoring of European phone and internet communications.
Feinstein, who said she was making her statement "reluctantly", confirmed recent reports that CIA officials had monitored computer networks used by Senate staff investigators. Going further than previously, she referred openly to recent attempts by the CIA to remove documents from the network detailing evidence of torture that would incriminate intelligence officers.
She also alleged that anonymous CIA officials were effectively conducting a smear campaign in the media to discredit and "intimidate" Senate staff by suggesting they had hacked into the agency’s computers to obtain a separate, critical internal report on the detention and interrogation program.
Feinstein’s dramatic speech on the Senate floor will reignite the debate over the adequacy of congressional oversight of the intelligence community, which was first sparked by Snowden’s NSA disclosures. Documents revealed by Snowden revealed the committee had been misled in public hearings by senior intelligence officials.
"How Congress responds [to the CIA controversy] and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee," Feinstein said.
The Senate-CIA Blowup Threatens a Constitutional Crisis
David Corn / Mother Jones
(March 11, 2014) -- This morning, on C-SPAN, the foundation of the national security state exploded.
Sen. Dianne Feinstein (D-Calif.), the chair of the Senate intelligence committee, took to the Senate floor and accused the CIA of spying on committee investigators tasked with probing the agency's past use of harsh interrogation techniques (a.k.a. torture) and detention. Feinstein was responding to recent media stories reporting that the CIA had accessed computers used by intelligence committee staffers working on the committee's investigation.
The computers were set up by the CIA in a locked room in a secure facility separate from its headquarters, and CIA documents relevant to the inquiry were placed on these computers for the Senate investigators. But, it turns out, the Senate sleuths had also uncovered an internal CIA memo reviewing the interrogation program that had not been turned over by the agency.
This document was far more critical of the interrogation program than the CIA's official rebuttal to a still-classified, 6,300-page Senate intelligence committee report that slams it, and the CIA wanted to find out how the Senate investigators had gotten their mitts on this damaging memo.
The CIA's infiltration of the Senate's torture probe was a possible constitutional violation and perhaps a criminal one, too. The agency's inspector general and the Justice Department have begun inquiries. And as the story recently broke, CIA sources -- no names, please -- told reporters that the real issue was whether the Senate investigators had hacked the CIA to obtain the internal review.
Readers of the few newspaper stories on all this did not have to peer too far between the lines to discern a classic Washington battle was under way between Langley and Capitol Hill.
Then Feinstein went nuclear. For more than a half hour this morning, she gave what she called a "full accounting." She began by noting her reluctance to go public:
Let me say up front that I come to the Senate floor reluctantly. Since January 15, 2014, when I was informed of the CIA search of this committee’s network, I've been trying to resolve this dispute in a discreet and respectful way. I have not commented in response to media requests for additional information on this matter; however, the increasing amount of inaccurate information circulating now cannot be allowed to stand unanswered.
In other words, she felt that the spies were leaking false information to nail her and her staffers. So she was upping the ante by taking this dispute out of the shadows.
Feinstein said that the CIA appeared to have violated the Fourth Amendment barring unreasonable searches and seizures -- and perhaps other federal laws and a presidential executive order prohibiting the CIA from domestic searches and surveillance.
She confirmed that the Justice Department was on the case. She said she has demanded an apology from the CIA and an admission that the agency's search of the intelligence committee’s computers was wrong. "I have received neither," she declared.
This unprecedented speech by Feinstein has ramifications beyond the immediate controversy over the CIA search. It undermines the basis for secret government.
The United States is a republic, and elected officials in all three branches are supposed to be held accountable by those famous checks and balances that school kids learn about in civics classes. When it comes to the clandestine activities of the US government -- the operations of the CIA, the other intelligence outfits, and the covert arms of the military -- the theory is straightforward: These activities are permitted only because there is congressional oversight. The citizenry is not told about such actions because doing so would endanger national security and render these activities moot.
But such secret doings of the executive branch are permissible because elected representatives of the people in the legislative branch monitor these activities and are in a position to impose accountability.
That's how it's supposed to work. But since the founding of the national security state in the years after World War II, there have been numerous occasions when the spies, snoops, and secret warriors of the US government have not informed the busybodies on Capitol Hill about all of their actions.
In the 1970s, after revelations of CIA assassination programs and other outrageous intelligence agency misdeeds, Congress created what was supposed to be a tighter system of congressional oversight. But following that, the CIA and other undercover government agencies still mounted operations without telling Congress. (See the Iran-Contra scandal.)
Often the spies went to imaginative lengths to keep Congress in the dark. More recently, members of the intelligence community have said they were not fully in the know about the NSA's extensive surveillance programs. Of course, there was a countervailing complaint from the spies. Often when a secret program becomes public knowledge, members of Congress proclaim their shock, even though they had been told about it.
Overall, the system of congressional oversight has hardly (as far as the public can tell) been stellar. And it has raised doubts about the ability of a democratic government to mount secret ops and wage secret wars in a manner consistent with the values of accountability and transparency.
What was essential to decent governance on this front was the delicate relationship between congressional overseers and the intelligence agencies. The intelligence committees have to be forceful and fierce in monitoring the spooks (a responsibility often not met), and the spies have to be cooperative and forthcoming (again, a responsibility often not met).
There has to be trust. The committees have to hold faith that the agencies are indeed coming clean, for there is no way a handful of congressional investigators can fully track all the operations of the massive intelligence establishment, and the agencies have to be assured that secrets they shared with the investigators will not be leaked for political purposes.
And at the end of the day, elected representatives have to be able to come to the public and say, "We're keeping a close eye on all this secret stuff, and we are satisfied that we know what is happening and that these activities are being conducted in an appropriate manner." If such credible assurances cannot be delivered, the system doesn't work -- and the justification for allowing secret government within an open democracy is in tatters.
Which is where we are today. Feinstein, no firebrand, is in open war with the CIA. Her speech outlined plenty of trouble she had reviewing the CIA interrogation and detention program -- before the computer search imbroglio. She decried "CIA interference in our investigation." And she maintained that her investigators had not hacked the CIA to get the internal review. "
We don't know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower," she said, raising the possibility that the CIA itself had failed to maintain a cover-up. And she noted that this internal review -- unlike the CIA's direct response to the intelligence committee's report -- contained "acknowledgement of significant CIA wrongdoing." She reported that the CIA has refused to answer questions she has submitted about the agency's search of the committee's computers.
So here we have the person assigned the duty of guaranteeing that the intelligence establishment functions effectively and appropriately, and she cannot get information about how the CIA meddled in one of her own investigations.
This is a serious breakdown. And by the way, Feinstein has still not succeeded in forcing the CIA to declassify her committee's massive report on the interrogation and detention program.
Here is how she summed up the current state of play:
?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.
But, Mr. President, the recent actions that I have just laid out make this a defining moment for the oversight of our intelligence committee.
How Congress and how this will be resolved will show whether the intelligence committee can be effective in monitoring and investigating our nation's intelligence activities or whether our work can be thwarted by those we oversee."
What Feinstein didn't say -- but it's surely implied -- is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It's a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades.
The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
David Corn is Mother Jones' Washington bureau chief.
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