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DOJ Probe Into Alleged Senate and CIA Torture Report Crimes Is Shrouded in Secrecy

Although the Senate released the summary of its torture report in December, the battle between the Intelligence Committee and the CIA shows no signs of abating.

by Jason Leopold
Feb 3 2015, 11:35pm

Photo via Wikimedia

Read more from Primary Sources: The VICE News FOIA Blog.

Last year, government lawyers made inquires into allegations that CIA personnel and Senate Intelligence Committee staffers broke federal laws in connection with the committee's work on the Senate torture report. But the Department of Justice has classified dozens of pages of documents related to that investigation.

The CIA's internal watchdog and an agency lawyer filed separate criminal referrals with DOJ calling for a criminal investigation into charges that CIA personnel spied on Senate Intelligence Committee staffers while they were conducting a probe into the agency's torture program and that the staffers stole an internal, top-secret CIA document about the torture program.

VICE News filed a Freedom of Information Act (FOIA) request for those criminal referrals as well as all documents that "refer" to it. In a letter dated January 26, the Justice Department's National Security Division said it identified about 85 pages — and that it was withholding all but two pages on grounds that disclosure would threaten national security, result in an unwarranted invasion of privacy, and reveal behind-the-scenes deliberations.

Senate torture report finds the CIA was less effective and more brutal than anyone knew. Read more here.

The documents the Justice Department withheld are 26 pages of a classified memorandum dated July 15, 2014; 25 pages of undated classified memorandum; 30 pages of classified handwritten attorney work notes; one page of draft Justice Department comments about the case; and a March 6, 2014 email from a National Security Division attorney.

But the DOJ did release two letters [pdf below] to VICE News — both dated July 8, 2014 — in which it advised the CIA "there is insufficient basis to open a criminal investigation" into either the charges that the CIA spied on the Senate or the charges that the Senate stole documents from the CIA. The letters were sent to Howard Cox, the CIA's assistant inspector general for investigations, and Caroline Krass, the agency's top lawyer, 10 days before the CIA's watchdog issued a report that found there was sufficient evidence that CIA personnel not only breached Senate Intelligence Committee staffers' computers and spied on them, but likely violated federal anti-wiretap laws and the Computer Fraud and Abuse Act.

Last month, a CIA accountability review board, empaneled by CIA Director John Brennan to look deeper into Inspector General David Buckley's conclusions, rebuked the watchdog's investigation, exonerated the CIA employees alleged to have spied on the Senate, and determined that Senate Intelligence Committee staffers stole an internal CIA study about the torture program referred to as the Panetta Review. Buckley resigned from the CIA last month. 

Cox's office filed a criminal referral with DOJ exactly one year ago today and reported "potential violations of federal law by employees of the [CIA], specifically fraud and related activity in connection with computers and interception and disclosure of wire, oral, or electronic communications prohibited."

Last February 7, CIA acting general counsel Robert Eatinger filed a criminal referral with DOJ accusing Senate Intelligence Committee staffers of "fraud and related activity in connection with computers."

"Working in concert with investigators from your office, the Department has completed a preliminary inquiry into this matter and determined that, based on the information available to us at this time, there is insufficient basis to open a criminal investigation," say the letters released to VICE News, each signed by John T. Lynch Jr., the chief of DOJ's Computer Crime and Intellectual Property Section, and Kathleen M. Kedian, chief of DOJ's counterespionage section. "Please do not hesitate to contact us again if your office learns of or obtains additional information relevant to this criminal referral."

Peter Carr, a DOJ spokesman, confirmed to VICE News Wednesday that the department still "has not found sufficient evidence to warrant a criminal investigation."

The competing allegations about CIA spying and unauthorized access to CIA documents by Senate Intelligence Committee staffers surfaced last March during a dramatic floor speech by Senator Dianne Feinstein, the chairwoman of the committee. She accused the CIA of spying on the Senate after agency officials discovered Senate investigators gained access to the Panetta Review, which she and other senators claimed was a report that matched the committee's damning findings and conclusions about the efficacy of the torture program.

In her floor speech — a copy of which has long been publicly available but was included with the two letters turned over to VICE News by the Justice Department — Feinstein said Eatinger, who she did not identify by name, was identified by name more than 1,600 times in the committee's report on the torture program. The implication was that Eatinger filed the criminal referral as a retaliatory act.

The weird saga of the other 'smoking gun' torture report the CIA still has under wraps. Read more here.

The CIA's inspector general determined in his report that Eatinger's criminal referral against Senate Intelligence Committee staffers was based on "inaccurate information" with which he was provided. The accountability board disputed that conclusion. Feinstein fired back with a "fact check," stating in a lengthy response to the board: "The CIA IG [inspector general] found the CIA criminal referral against SSCI staff was based on inaccurate information provided to Acting General Counsel Bob Eatinger by personnel in CIA's Office of Security." 

"The actions of these individuals were ignored by the CIA Accountability Board, which is shocking and unacceptable," she said.

Eatinger's name was redacted from the watchdog's report, the accountability review board report, and the committee's torture report. That means the disclosure of his identity in the Justice Department letters is a rare instance of transparency revolving around his role in the drama.

Follow Jason Leopold on Twitter: @JasonLeopold

Photo via Wikimedia

Read more from Primary Sources: The VICE News FOIA Blog.