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Published by The Lawfare Institute
Senator Feinstein’s remarkable floor statement yesterday has thrown further fuel onto an already volatile mix of intelligence and oversight issues related to the Senate Select Committee on Intelligence’s detention and interrogation report. Putting the controversy both outside and inside the SSCI about the substance of the report aside for now, the basic facts as Sen. Feinstein states them seem generally consistent and plausible, shed significant light on the current dispute between the SSCI and the CIA, and square with my personal experience dealing with the CIA on investigative matters on behalf of the House Permanent Select Committee on Intelligence. The senator's narrative leads to three key questions central to understanding not only the dispute itself, but also the likely course and potential resolution of the debate going forward. Question #1: Was the CIA’s search pretextual? At its core, the immediate dispute is about the CIA’s search of an Agency computer system used by the SSCI not only to access Agency documents relevant to its investigation of interrogation and detention issues, but also to create Committee work product related to the material. According to Senator Feinstein, the Agency had agreed in writing that this system would be “segregated” from the Agency’s systems, and only accessible by CIA information technology personnel, who were prohibited from sharing any information accessed with others at the Agency. The search was triggered by the Committee’s official request for the final version of the “Internal Panetta Review,” apparently created for internal use by the CIA to assess documents to be turned over to the SSCI in connection with the investigation and believed by the Committee to be important to impeach the Agency’s response to its report. According to a press account in the Daily Beast, the CIA initiated its search when it learned that the Committee already was in possession of previous versions of what it believed to be an internal document. The Agency’s search seems to be publicly viewed as a deliberate effort to intimidate the SSCI investigation, using either the potential for criminal investigation or the mere fact of the search of the SSCI documents. While I also have substantial personal concern with the implications of the search for oversight and the separation of powers as a longtime congressional staff member, it is important to point out that as a legal matter the issue is not nearly as cut-and-dried as the conventional wisdom suggests. If, in fact, the CIA legitimately believed that a classified internal document had come to be in the possession of any outside person (even including the Committee) by unknown means, that fact could constitute a legitimate basis to conduct a security inquiry or related criminal investigation. This issue is commonly confused in the oversight context. Congressional committees have broad and substantial oversight authorities flowing from many sources, and members and staff of the intelligence committees have the requisite security clearances and accesses. However, neither equates as a legal matter to an immediate right of access to any documents or materials desired at any time. In turn, a legitimate investigation could provide a tenable legal basis to conduct a search of an agency computer system---which is federal property---particularly in the national security context. If the CIA honestly believed (rightly or wrongly) that such investigative issues existed, it would explain from its perspective why it didn’t simply raise the matter directly with the SSCI, even though it clearly should have done so as a matter of comity. Although we now live in a time in which intelligence programs are openly discussed and disclosed on a near-daily basis, CIA security personnel take such issues extraordinarily seriously, even as foolish as it may seem in this context. (This brings to mind Hanlon’s Razor, an adage that states “Never attribute to malice that which is adequately explained by stupidity.”) Senator Feinstein raised the possibility that the CIA search violated the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12,333. But the CFAA, for example, expressly exempts authorized law enforcement and intelligence (including counterintelligence) activities. See 18 U.S.C. § 1030(f). Thus, the legal question would turn on whether the CIA’s investigation and search was in fact “lawfully authorized” or merely a pretext for deliberate efforts to obstruct or interfere with the SSCI investigation. We will undoubtedly find out more about the totality of the facts and circumstances. For the moment, however, there seems to be no public evidence directly proving pretext. The only violation that is immediately clear is one of the agreement between the SSCI and the Agency. The implications of that violation alone will have substantial implications for the separation of powers doctrine generally and, more importantly, the budget and authorities of any Agency that dares to breach it. Question #2: Who Provided SSCI With Access to the Panetta Review? According to Senator Feinstein, at some point in 2010, SSCI staff found and accessed the “Panetta Review” documents by use of the search tool on the system. Importantly, she said “We have no way to determine who made the Internal Panetta Review documents available to the committee. Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.” Because the Agency apparently reacted so vehemently on learning that the SSCI was in possession of draft copies of the report, I will assume that the CIA did not intentionally provide the document to the Committee in the sense that a knowing institutional decision was made to do so. (A conspiracy theorist would disagree---evidence of such a decision, of course, would immediately establish pretext.) That leaves two options: either the Agency unintentionally gave the Committee access to these documents on the segregated system, or a person who had access intentionally took steps to make them available in the database. Given the volume of documents in play and personal experience with how the Agency handles production of materials to Congress (the CIA is less sophisticated in this regard than the reader might assume), it seems more likely that the Agency itself unwittingly placed the drafts in the database in a manner accessible to the Committee, especially since it is easy to see how the “Panetta Review” materials might be commingled with the underlying documents themselves. If so, this would make the Agency look even sillier for investigating the SSCI with respect to its own shortcomings, notwithstanding the seriousness of the broader issues. Common sense prevailing, if this fact can be determined, it would seem to lead to a quick and substantial resolution of the related investigations. The possibility that a third party “whistleblower” made the documents available to the Committee, however, is far more intriguing and would even further complicate the matter if it were the case. This scenario would actually strengthen both cases by providing a clear basis for the Executive Branch investigation of such a disclosure and heightening the separation of powers and oversight interests of the SSCI. The resulting debate would also further highlight some significant shortcomings in the existing Intelligence Community Whistleblower Protection Act and exacerbate the current public focus on intelligence disclosures. These are important issues that require further discussion in any event, but would instantly move to the forefront if the whistleblower scenario turned out to be the case. Question #3: Why Didn’t the SSCI Live Up to Its End of the Agreement, Either? Finally, it is worth briefly noting a significant question that so far has gone largely unnoticed but can be easily read between the lines of Senator Feinstein’s statement. Senator Feinstein acknowledged that the SSCI agreement with the CIA provided for Agency review of materials before their removal from the CIA facility. She does not explicitly say whether such review actually took place with respect to the Panetta Review materials removed by the SSCI, although she does emphasize that “our staff did just what the CIA personnel would have done had they reviewed the document.” So it appears that the SSCI didn’t fully live up to its side of the agreement, either. The question becomes why it didn’t do so, because these facts seem to establish at least some degree of improper conduct on the part of the SSCI that is otherwise entirely absent from the narrative. This is puzzling because there appears to be no real practical reason for the Committee to have acted in this manner. Senator Feinstein mentioned concerns arising from the previous destruction of interrogation video tapes. Such concerns are certainly logical and broadly justified, but they don’t seem to establish any specific need to conceal the removal of the documents from the Agency or justify such conduct given the apparent express agreement on the matter. The SSCI could have immediately given the materials protected legal status by issuing a subpoena for them. Even without a subpoena, the Agency clearly would have been on notice of the Committee’s investigative interest in the documents. And while the documents could have been destroyed either electronically or in paper form, the Agency certainly could not have gotten away with it given that the Committee not only knew of the materials, but had already reviewed them on multiple occasions. Again, the facts and circumstances will likely become clearer over time, but this appears to have been yet another significant misstep in an incident that now appears to be filled with them on all sides. Chris Donesa was Chief Counsel for the House Permanent Select Committee on Intelligence from 2004-2013.
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