On June 9, 2010, a CIA employee working on a secret review of millions of pages of documents about the CIA's "enhanced interrogation" program contacted the CIA's internal watchdog and filed a complaint. The employee had come to believe that the CIA's narrative about the efficacy of the program — a narrative put forward by not just CIA officials, but also then-President George W. Bush — was false.
The CIA employee made the discovery while she was working on the Panetta Review. Named for former CIA Director Leon Panetta, the Panetta Review is a series of documents that top Democrats on the Senate Intelligence Committee say corroborates the findings and conclusions of the landmark report they released last December about the CIA's detention and interrogation program — that the torture of detainees in the custody of the CIA failed to produce unique and valuable intelligence, and that it was far more brutal than the CIA let on.
Panetta ordered the review in 2009 just as the Senate Intelligence Committee announced it would probe the efficacy of the CIA's detention and interrogation program. CIA employees were tasked with evaluating the cache of documents about the torture program that the agency turned over to the committee during the course of its probe; their goal was to compile the graphic and noteworthy aspects of the torture program — like the fact that detainees were fed rectally — on which the committee might focus.
Senate Intelligence Committee staffers accessed a copy of the Panetta Review around the same time that the CIA employee complained to the watchdog. The CIA has maintained that the review is for CIA eyes only, and that Senate staffers who accessed it did not have authorization to read it.
The Panetta Review has served as the catalyst behind the near constitutional crisis between the Senate Intelligence Committee and the CIA. It was the basis for former Intelligence Committee chairwoman Dianne Feinstein's extraordinary March 2014 floor speech in which she accused the CIA of spying on her staffers. And it is what led the CIA to urge the Justice Department to launch a criminal investigation into the Senate staffers who accessed it.
The CIA's strong reaction seemed unusual considering the agency turned over to the committee 6.2 million pages of documents about the torture program that are far more damning than what's contained in the 1,000 or so pages that make up the Panetta Review. But documents VICE News recently obtained from the CIA in response to a Freedom of Information Act (FOIA) lawsuit, along with interviews with officials who have either read the Panetta Review or were briefed about it, shed light on why the CIA has fought so aggressively to keep the documents secret — even from some top CIA officials.
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The CIA employee told the agency's internal watchdog that intelligence about a "second wave" of attacks al Qaeda planned in Los Angeles after 9/11 was misattributed. Interrogators had long claimed they learned about the planned attacks from accused 9/11 mastermind Khalid Sheikh Muhammad after he was tortured. But in actuality, that intel came from another detainee: Majid Khan, currently the only legal US resident imprisoned at Guantanamo, according to documents from the CIA's Office of Inspector General (OIG).
On June 9, 2010, she contacted the OIG via "the OIG Privacy Channel," and "alleged intelligence obtained under the [rendition, detention, and interrogation] program was misattributed between two high profile detainees," according to the inspector general's closing memorandum in the case.
Though the CIA employee's name is redacted from the report, officials knowledgeable about the complaint told VICE News that the employee is a woman who waswas assigned to evaluate the documents turned over to the Senate Intelligence Committee.
"Specifically, [redacted] alleged intelligence obtained through the Agency's [rendition, detention, and interrogation] program from detainee Majid Khan was misattributed in Agency reporting to Khalid Sheikh Muhammad," says the memorandum, which was titled "Alleged Misattribution of Intelligence." The CIA employee was interviewed by the inspector general's office on June 17, 2010. She "detailed [her] belief that intelligence obtained by Khan was misattributed to" Muhammad. Everything else she told the inspector general is redacted from the memo turned over to VICE News.
Before she reached out to the CIA watchdog, the CIA employee flagged for her supervisors the intelligence error, which made its way into a 2004 inspector general report about the interrogation program and a September 2006 speech delivered by Bush.She was assured the record would be corrected and she was given a cash award for her work. Later, she learned the corrections were never made,the intelligence sources told VICE News. Because the information they have disclosed is still considered classified, the sources requested anonymity.
The CIA claimed the intelligence that interrogators supposedly obtained from Muhammad thwarted the second wave of attacks and showed the effectiveness of the so-called "enhanced interrogation techniques" used by interrogators. But the fact that one of the CIA's own employees discovered that the information was collected from Khan while he was in the custody of a foreign government seems to support the Senate Intelligence Committee's conclusion that the program was mismanaged, and that the CIA provided an inaccurate portrayal to policymakers about the program's effectiveness.
Intelligence and US government officials told VICE News that the intel attributed to Muhammad after he was waterboarded — the intel the CIA employee discussed with the inspector general — had to do with information that led to the capture of an alleged al Qaeda terrorist named Mohd Farik Bin Amin, better known as Zubair. He was said to have been working for al Qaeda's Southeast Asian affiliate and was allegedly planning more attacks against the US. Bush pointed to the Zubair case in his September 2006 speech as evidence of the program's success.
But details about Zubair were actually obtained using rapport-building techniques by interrogators working for a foreign government, the CIA employee told the inspector general. There are also numerous other examples in the Senate report of the CIA claiming intelligence was obtained from Muhammad when in reality it was obtained from Khan.
The timeframe in which the CIA employee was interviewed by the inspector general also coincided with the Senate Intelligence Committee's discovery, unbeknownst to the CIA, of the Panetta Review. In her March 2014 floor speech, Feinstein said she believed committee staffers found it using a simple Google search tool — but she also left open the possibility that it was turned over by a whistleblower.
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After the CIA employee was interviewed by the inspector general's office, its investigation into the employee's complaint lay dormant for two years. It's unclear why; the CIA would not comment for this story.
About five months after the CIA employee filed the complaint, the Panetta Review group was abruptly disbanded before it completed the review.
On June 24, 2012, six months before the Senate Intelligence Committee finished writing the first draft of its report on the CIA's detention and interrogation program, the inspector general interviewed CIA deputy general counsel for litigation and investigations Darrin Hostetler, who oversaw the work of both the Panetta Review team and monitored the Senate Intelligence Committee's probe. His name is redacted from the inspector general's report, but VICE News has confirmed with multiple sources that he is the CIA official with whom the watchdog spoke.
It was previously unknown that Hostetler had been a central figure in the ongoing battle between the CIA and the Senate Intelligence Committee regarding the Panetta Review. But VICE News has learned that Hostetler is one of the agency officials who, upon learning that the committee obtained a copy of the Panetta Review, personally searched Senate Intelligence Committee staffers' computers without their knowledge.
He is also the CIA official who wrote up a criminal referral on February 7, 2014 that was signed by the CIA's acting general counsel and sent to the Justice Department, accusing the Senate report's principal author, Daniel Jones, of "fraud and related activity." Hostetler alleged that Jones and another Intelligence Committee staffer gained access to CIA computers, swiped a copy of the Panetta Review, and saved it to their side of a walled-off computer system shared with the CIA at a secure facility in Virginia. (CIA employees and contractors worked on the Panetta Review at the same facility, just a few feet away from where Senate staffers had been working on the torture report.)
The inspector general interviewed Hostetler in 2012 and again in 2013 about the CIA employee's complaint and the Panetta Review. Hostetler appeared to be dismissive of her discovery about intelligence misattributed to Muhammad, stating that the Panetta Review was an untrustworthy document that was still in draft form — it was, he said, never presented to the CIA director — and did not contain any findings or conclusions. He added that a "decision had been made" not to provide the Panetta Review to Congressional committees because it was deemed to be "internal deliberative documents."
Hostetler's assertion that the CIA decided not to share CIA documents, including the Panetta Review, with Congressional committees because they were "deliberative" documents does not square with the fact that the CIA had already turned over to the Senate Intelligence Committee millions of pages of documents from the detention and interrogation program that were marked as deliberative.
Feinstein said as much in her floor speech last year.
"CIA has provided thousands of internal documents, to include CIA legal guidance and talking points prepared for the CIA director, some of which were marked as being deliberative or privileged," she said. In fact, Feinstein added, the CIA's June 27, 2013 response to the Senate's torture report, which Brennan personally delivered to her, is labeled "Deliberative Process Privileged Document."
US officials knowledgeable about the CIA employee complaint about misattributed intelligence told VICE News Hostetler was not being truthful to the CIA inspector general during an interview when he said that the Panetta Review was a collection of drafts that did not contain findings or conclusions. The officials said the Panetta Review, which the CIA refused to make available to its own inspector general, clearly contains both.
Hostetler's explanation lines up with a sworn declaration from a CIA lawyer filed in federal court in connection with a separate FOIA lawsuit filed by VICE News last year later seeking access to the Panetta Review. (Recently, a federal court judge sided with the CIA and said the agency does not have to publicly release the Panetta Review.) The lawyer explained that the group stopped working on its reports in 2010 because the work would have interfered with a separate, special prosecutor's criminal investigation into the CIA's torture program.
But US officials with direct knowledge of the matter told VICE News that Hostetler and other CIA officials disbanded the group because its members continued to find and document dozens of inaccuracies about the source of intelligence obtained from high-value detainees, the efficacy of the enhanced interrogation techniques, and evidence of detainees being subjected to interrogation methods that were never legally authorized. In short, CIA officials were publicly defending the use of enhanced interrogation techniques while CIA employees were drafting reports that contradicted what those officials were saying.
Many of the Panetta Review's findings about misattributed intelligence and the brutal treatment of detainees using unauthorized techniques singled out the CIA's chief of interrogations, Charlie Wise, who authorized the rectal feeding of Khan and other CIA captives, intelligence officials told VICE News. Wise — who was not named in the Senate's report — was the subject of at least one scathing complaint filed by another interrogator with the inspector general during the interrogation program's early days. The complaint remains classified. Wise died of a heart attack after retiring from the CIA.
Former Senator Mark Udall is the lawmaker who, in December 2013, first revealed the existence of the Panetta Review. In a December 10, 2014 floor speech before he left the Senate, he said, "the CIA is lying" about what the Panetta Review really is and "that is why I am here today to disclose some of its key findings and conclusions."
"The Panetta Review found that the CIA repeatedly provided inaccurate information to the Congress, the president, and the public on the efficacy of its coercive techniques," Udall said. "The Panetta Review identifies dozens of documents that include inaccurate information used to justify the use of torture — and indicates that the inaccuracies it identifies do not represent an exhaustive list.
"I will tell you that the review is much more than a 'summary' and 'incomplete drafts,' which is the way [CIA Director John] Brennan and former CIA officials have characterized it in order to minimize its significance," Udall continued. "I have reviewed this document, and it is as significant and relevant as it gets."
A spokesman for Udall said the former senator was not available for comment.
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On July 27, 2012, five months before the Senate completed the first draft of its report, according to the CIA documents VICE News obtained, the Office of Inspector General asked the agency what "corrective actions" it had taken related to "findings of misattribution of intelligence in Agency products Khan and Muhammad."
The CIA had taken none.
Nearly a year later, on August 28, 2013, the Office of Inspector General again met with Hostetler. Once again he impressed upon the inspector general that the Panetta Review was unreliable. The CIA's official response to the intelligence committee's report, delivered to Feinstein two months earlier, included the claim that Muhammad provided interrogators with intelligence that the CIA employee said had come from Khan. According to a footnote in the Senate's torture report, the CIA's response said Muhammad "provided information on an al-Qa'ida operative named Zubair.... This statement in the CIA's June 2013 Response is inaccurate."
It would not be until October 25, 2013, three years after the CIA employee complained to the watchdog, that the CIA would finally admit its mistake after being pressured to do so by the Senate Intelligence Committee. The footnote in the Senate report added that the CIA acknowledged the inaccuracy after the agency conducted another review of its records.
The CIA's Office of Inspector General closed the case on January 15, 2014, nearly four years after it was first opened, because the claims about misattributed intelligence "were sufficiently documented and addressed" in both the Senate's report on the CIA's torture program and the CIA's response to the Senate, the inspector general's office said after reviewing both documents.
"The OIG did not establish credibly information to warrant further inquiry," the closing memorandum in the case says.
The case was closed and signed off on the same day that Brennan requested an emergency meeting with Feinstein and her Republican counterpart on the Intelligence Committee, Senator Saxby Chambliss. At that meeting, he informed them for the first time that the CIA had searched the committee's computers as part of an investigation into how committee staffers obtained the Panetta Review.
CIA officials were publicly defending the use of enhanced interrogation techniques while CIA employees were drafting reports that contradicted what those officials were saying.
Hostetler and nine other CIA employees were lateradmonished by the OIG after it investigated the search of the committee's computers and found it improper. But an accountability review board, whose members were appointed by Brennan, cleared Hostetler and the other CIA employees of wrongdoing. Lending credence to the claims of Udall and other senators about the true substance of the contents of the Panetta Review, the accountability board concluded that the language in the Senate's blistering report on the CIA's torture program was "remarkably similar" to portions of the CIA-penned drafts.
The inspector general's July 2014 report into the computer search, declassified last January, included a copy of a five-page letter Hostetler wrote attempting to justify his actions. His name was redacted from the letter, but VICE News confirmed with intelligence and US officials that he wrote it.
"This memo reflects a disturbing tendency to treat oversight as a crime, which the OIG rightly rejected but the Accountability Board Report concludes was 'reasonable,'" wrote Katherine Hawkins in an article on the website Just Security. Hawkins is an attorney and the former lead investigator for the Constitution Project's Detainee Task Force, which examined the treatment of detainees in the custody of the CIA and military. Hawkins has closely followed the drama surrounding the Panetta Review.
She said the inspector general's memorandum about the misattributed intelligence clearly demonstrates that Hostetler has been trying to hide the Panetta Review for a long time — "even from officials within CIA."
Hostetler has since moved on to the Defense Department, where he now oversees both habeas litigation involving Guantanamo detainees and the Office of Military Commission prosecutions of the accused plotters of the 9/11 attacks. Like Muhammad, those detainees were named in the Senate report as having been tortured without providing CIA interrogators with valuable intelligence.
Hawkins, who has no personal knowledge that Hostetler was involved in the search of Senate Intelligence Committee computers, said it is troubling that he is now in charge of the military commissions cases. "He has a conflict of interest," she told VICE News.
"If that same CIA lawyer is in charge of overseeing discovery in the military commissions, it's a huge problem," she said. "I can't claim I ever had much confidence in the prosecution's providing the defense with the mitigation evidence it needs for a fair trial to begin with. But the person who oversaw the CIA's response to the Senate torture report is about the last person I'd trust to handle this.
"If Guantanamo prosecutors ever want the military commissions to go to trial, they need to provide discovery about what the CIA did to the defendants. It's a capital case, and defendants' torture is likely to be central to the argument against a death sentence. And there are Supreme Court cases that say that the government can't conceal evidence that the defense could use to prevent execution. The CIA's main goal with regard to its torture program has been to conceal as much evidence as possible, from as many people as possible, for as long as possible."
Recently, the military judge presiding over another military commissions case involving Abd al-Rahim al-Nashiri — the accused USS Cole mastermind whose torture during interrogations was laid bare in the Senate's report — ruled that the alleged terrorist's defense counsel cannot obtain a full unredacted copy of the intelligence committee's 6,700-page report. The military judge noted in his decision that prosecutors decide what the defense counsel for the accused terrorist is allowed to see. The Pentagon official the prosecutors answer to is Hostetler.
The Defense Department declined to make Hostetler available to VICE News for comment.
The complaint the CIA employee filed with the OIG about the misattributed intelligence was revealed to the Senate Intelligence Committee for the first time last January. But the CIA declined to provide the committee with a copy of the inspector general's closing memorandum in the case, which means they are reading it here for the first time. Some officials suggested to VICE News that the details articulated to the inspector general by Hostetler about the Panetta Review, and the fact that the CIA failed to act on the CIA employee's complaint, would have further angered Feinstein.
Last January, the new Republican chairman of the Senate Intelligence Committee, Richard Burr, indicated he intended to send copies of the Panetta Review back to CIA and asked all government agencies that received a copy of the committee's torture report to return it to the Intelligence Committee. US officials told VICE News it was Hostetler who advised Burr to make that call on both matters.
The Panetta Review and the drama surrounding it continues to be a sore point for Democrats, and has strained relations between lawmakers and the CIA. A couple of weeks ago, senators Ron Wyden, Martin Heinrich, and Mazie Hirono sent a letter to Brennan demanding he issue a public apology over the agency's search of Intelligence Committee staffers' computers. The lawmakers want Brennan to acknowledge that the January 2014 search was improper, even though a CIA-appointed "independent" review board that looked into the breach absolved CIA employees of wrongdoing earlier this year. That finding reversed a decision by the CIA's internal watchdog, which said the search was improper.
Follow Jason Leopold on Twitter: @JasonLeopold