There is a new twist in the long-running soap opera — and potential constitutional crisis — between the CIA and Senate. Contrary to accusations leveled by the Senate, a 38-page report has found that the CIA did not breach the computers of Senate Intelligence Committee staffers and spy on them while they were investigating the CIA's torture program.
The report was released today by the CIA and it is based on a review conducted by a CIA accountability board.
What the accountability board's review did find, however, is that Senate Intelligence Committee staffers stole documents from the CIA and violated an agreement it entered into with the agency over the use of a classified computer network. On several occasions between 2009 and 2013, while the committee was writing its report, committee staffers allegedly gained access to CIA documents they were not authorized to see — such as a spreadsheet that contained a list of videos apparently related to the torture program — and admitted as much when confronted by agency officials.
Further undermining claims that the CIA spied on the Senate, the accountability report says, is the fact that each time Senate staffers logged onto a classified computer system called RDINet ("Rendition, Detention, Interrogation") set up by the CIA at a secure facility in Northern Virginia — there, millions of pages of torture program documents were reviewed by the staffers — they were greeted with the following message: "Your use of this system may be monitored and you have no expectation of privacy."
The CIA accountability board, chaired by Evan Bayh, the former Democratic Chairman of the Intelligence Committee, started its review last summer in response to a report issued last July by the CIA's Inspector General, David Buckley. He had looked into allegations leveled by Senator Dianne Feinstein and other Democratic members of the Intelligence Committee that CIA personnel had spied on committee staffers and possibly hacked into their computers.
Buckley's report concluded, "Five Agency employees, two attorneys, and three information technology (IT) staff members, improperly accessed or caused access to the [Senate Committee on Intelligence] Majority staff shared drives on the RDINet."
Buckley sent a criminal referral to the Justice Department, but Justice declined to launch a probe. The accountability board reviewed Buckley's findings in order to determine if the CIA employees should be reprimanded, and the board not only voted against punishing the five CIA officials, saying they acted properly, but found that Buckley's report was riddled with errors, that he overlooked evidence during the course of his investigation, and that he never should have referred the case to the Justice Department. The accountability report did find that the CIA's Office of Security "inappropriately" examined five emails written by an Intelligence Committee staffer — but the board did not fault the security office, saying officials failed to understand a "stand down order" issued by Brennan to cease reviewing Senate computers.
Last week, Buckley resigned from the CIA. The CIA said Buckley, who served as inspector general for four years, is leaving the agency, effective January 31, to "pursue an opportunity in the private sector."
VICE News and the Electronic Privacy Information Center (EPIC) filed Freedom of Information Act (FOIA) lawsuits for Buckley's report. The CIA decided to release that report today as well.
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The saga revolving around allegations that the CIA spied on the Senate center around a classified, internal CIA document referred to as the Panetta Review named after then-CIA director Leon Panetta. Senator Mark Udall, a former member of the Intelligence Committee, first revealed the existence of the document in December 2013 during a Senate hearing, calling it a "smoking gun." He said it matched the conclusions of the Intelligence Committee's own report on the torture program.
A CIA lawyer explained in a court document provided to VICE News last month that the Panetta Review is "actually a series of more than 40 draft documents relating to the CIA's former detention and interrogation program." The lawyer said the "top-secret" drafts, which were never given an official name, "were originally envisioned as providing summaries of documents being provided" to the Senate Intelligence Committee that Panetta and other CIA officials "could consult to figure out how to respond to the Senate's investigation into the CIA's torture program."
For example, a Draft Review may contain details about the rectal feeding or rectal rehydration of detainees in custody of the agency, which the Senate Intelligence Committee's 525-page executive summary found was used on at least five detainees.
"The drafts were intended to inform CIA leaders' decision-making by highlighting the most noteworthy information contained in the millions of pages of documents being made available to the [Intelligence Committee] in connection with its study," the lawyer said. "Each document is stamped 'DELIBERATIVE PROCESS PRIVILEGED DOCUMENT' at the top of every page, and most of the documents are marked 'DRAFT' on every page as well."
The lawyer said the top of the first page of each document reads:
This classified document was prepared by the CIA Director's Review Group for Rendition, Detention and Interrogation (DRG-RDI) for DRG-RDI's internal discussion purposes and should not be used for any other purpose, nor may it be distributed without express permission from DRG-RDI or CIA's Office of General Counsel. This document contains [certain classified information]. This document also contains material protected by the attorney-client and attorney work product privileges. Furthermore, this document constitutes deliberative work product, protected by the deliberative-process privilege, and is not a final, conclusive, complete or comprehensive analysis of DRG-RDI, in support of informing senior Agency officials about broad policy issues. While every effort was made to ensure this document's accuracy, it may contain inadvertent errors. For this reason, and because this document selectively summarizes, draws inferences from, or omits information from the sources it cites, it should not be relied upon by persons outside DRG-RDI.
The Intelligence Committee made a formal request to the CIA for the Panetta Review in November 2013 — but unbeknownst to the CIA, the Senate already had a copy. According to the accountability board's report, the request set off alarm bells at the CIA, leading the agency to believe that the committee may have already accessed the Panetta Review. At that point, the Senate had already completed a draft of its torture report and was battling the CIA over the veracity of the findings and conclusions — that the CIA's program had been ineffective.
According to the CIA accountability board, the agency went back and reviewed the draft copy of the Senate report and the Panetta Review and found the language in both documents to be "remarkably similar," meaning that the Senate probably relied on the Panetta Review to draft its report.
"CIA officers began suspecting [the Senate Intelligence Committee] had access to the [Panetta Review] because of a November 2013 Senate request for a copy of the 'Panetta Review,' because a draft [Senate Intelligence Committee] report contained language remarkably similar to the portions of the Panetta Review, and because of a statement by a [Senate Intelligence Committee] staffer had seen the [agency's] 'real response.'"
In other words, the Intelligence Committee had found the findings of the Panetta Review — which had been conducted internally by the CIA — to be very different from what the CIA was telling the Intelligence Committee in response to the committee's torture report. Feinstein said last year her committee "did not rely on these Internal Panetta Review documents when drafting" the final version of the torture report.
The accountability board report does not name the Senate staffer who made the statement about the "real response," but several Republican Intelligence Committee staffers and CIA officials told VICE News that the staffer in question is Daniel Jones, the principal author of the Intelligence Committee's report. One Democratic Intelligence Committee source disputes Jones made the remark.
One Intelligence Committee staffer accessed "166 unauthorized files" [which make up the Panetta Review] starting in November 2010, and then printed them and shared them with four other staffers, who are unnamed, the accountability board's report says.
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Following the discoveries, according to the CIA accountability board report, Brennan met with Feinstein and Senator Saxby Chambliss, the ranking Republican on the Intelligence Committee, and told them that he wanted to conduct a joint CIA/Intelligence Committee review of RDINet to figure out what happened and how the staffer gained access to the Panetta Review. The accountability board's report says the CIA was responsible for the security and administration of RDINet.
Brennan later revealed to Feinstein that he authorized the CIA employees to conduct a search of Intelligence Committee computers at the secure facility to determine how they obtained the Panetta Review. A CIA review of computer "audit logs" concluded that no one at the CIA had voluntarily turned over the Panetta Review.
That disclosure led Feinstein to make a dramatic speech on the Senate floor last March in which she accused the CIA of unlawfully monitoring Senate staffers' computers and attempting to sabotage the committee's investigation, which "undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function."
It also led Udall and other Intelligence Committee members to call for Brennan's resignation.
During her floor speech, Feinstein said committee staffers discovered the Panetta Review using the "search tool" provided to the committee by the CIA to scour more than 6 million pages of highly classified records about the program that the CIA made available.
The CIA accountability board's report said that according to the CIA's 2009 agreement with the Senate over the administration of the shared RDINet server, the Intelligence Committee "consented to monitoring purposes and reconfirmed it each time they logged on," and that committee staff "knew CIA staff could access all of RDINet to locate documents and in fact often requested CIA's help in locating documents including on their side of the wall."
The five CIA employees scrutinized by the CIA inspector general never reviewed the Intelligence Committee's "work product" when they were tasked with searching the staffers computers to determine how they obtained the Panetta Review, according to the accountability board's report. The report cites specific examples of instructions they were given by the CIA to avoid looking at the committee's work.
The report also said this was not the first time during the course of the Intelligence Committee's investigation that Senate staffers violated a security agreement the committee entered into with the agency. In previous incidents, the CIA confronted Senate staffers about the violations without incident, leaving it unclear why the CIA's search of committee staffers' computers over the Panetta Review sparked such outrage from Feinstein, Udall, and other senators.
"In 2009, there was an [Intelligence Committee] staffer who had a series of security violations involving either RDINet or inappropriately bringing a camera into the secure vault" that resulted in his removal from the SSCI team in December 2010, the CIA accountability report said. There was also a May 2010 incident where another staffer attempted to bypass print restrictions on the documents on the system, details of which were redacted from the report.
"The RDI team discussed this issue with the [Intelligence Committee] staff and reminded them of the need for security of sensitive documents," the CIA report said.
In April of 2013, Intelligence Committee staffers "obtained a privileged spreadsheet with a list of videos that [were not relevant] and the staffers agreed with the agency to destroy the document." The accountability report doesn't say whether the videos depicted any interrogations. The Senate did review videos turned over to the committee by the CIA, however, and it's possible that details of the videos are cited in the Intelligence Committee's larger, still-classified report about the program.
The CIA's response is sure to further rankle Feinstein, who did not immediately issue a response. But the California Democrat is no longer head of the Intelligence Committee, and Udall, who has been the most vocal about the Panetta Review and claims that the CIA spied on the Senate, was not re-elected to another term as Senator.
On Wednesday, Feinstein's office emailed reporters a response to the release of the reports.
"Let me be clear: I continue to believe CIA's actions constituted a violation of the constitutional separation of powers and unfortunately led to the CIA's referral of unsubstantiated criminal charges to the Justice Department against committee staff," Feinstein said. "I'm disappointed that no one at the CIA will be held accountable. The decision was made to search committee computers, and someone should be found responsible for those actions."
Follow Jason Leopold on Twitter: @JasonLeopold