Report on CIA Black Sites and Torture May Provoke a Constitutional Crisis

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Packets containing declassified documents by the Central Intelligence Agency used by Former President Jimmy Carter sit on a table at the Carter Center, Nov. 13, 2013, in Atlanta. (AP Photo/David Goldman)

On Tuesday, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) accused the Central Intelligence Agency of violating federal law and undermining Congress’ constitutional oversight powers. She alleges that CIA officials monitored secure computers used by Capitol Hill staffers to prepare a report that reveals the agency’s Bush era legacy of black detention sites and enhanced interrogation programs – methods many have denounced as torture.

This is the latest development in a long-standing feud between the intelligence agency and Congress. Wrangling over the report, which runs over six thousand pages and cost the government $42 million to prepare, has led to what some are calling a “constitutional crisis.”

Three national security reporters in McClatchy Newspapers’ DC office — Jonathan Landay, Ali Watkins and Marisa Taylor — first reported the alleged snooping last week. caught up with Landay to get some background. Below is a transcript that has been lightly edited for clarity.

Joshua Holland: What are the allegations here, and who is making them?

Jonathan Landay: We’ve talked to people who have told us that staffers of the Senate Intelligence Committee determined that the computers they were using in a special CIA facility to review reports that were going into their study of the CIA’s now-defunct detention and interrogation program — that those computers were being monitored by the agency, in violation of an agreement that they had with the agency.

Holland: This story starts with this report about the so-called enhanced interrogation program, the detention program. What do your sources indicate is in the report that the CIA wants to keep under wraps?

Landay: That is the question at the heart of the matter, and that’s something that we have not been able to ascertain. That report is still very much locked up by the Senate Intelligence Committee, nearly 15 months after they approved a final draft. They are in a major battle with the CIA over the report, and in particular their demands for additional documents.

The Senate Intelligence Committee staff, we are told, determined that their computers were being monitored when they were confronted by the CIA over the fact that they had printed out and removed, allegedly without authorization, secret documents — documents stamped “top secret” — from an electronic reading room that they had been provided by the CIA in which to do their work and in which to review classified documents.

We don’t know exactly what’s in the report. Only people who have been able to read the report know what’s in it. And that’s because not even the executive summary has been released at this point. But members of the committee have said in public, in hearings and elsewhere, that there are very disturbing findings in this report, that the report shows that the information that was gained through waterboarding and these other so-called enhanced interrogation techniques, which a lot of experts consider to be torture, had very little value at all.

The committee chairwoman, Dianne Feinstein, has said publicly — and this would be in response to the film Zero Dark Thirty — that these interrogation methods did not produce the intelligence that led the CIA to identify Osama Bin Laden’s last hiding place in Pakistan, and they objected to the film because, in their view, the film left viewers with the impression that, in fact, it was through the use of methods like waterboarding that the United States was able to glean the information that led them to Osama Bin Laden’s last hideout.

Holland: How did the CIA come to have the final word on releasing a report that’s critical of the agency? Doesn’t Congress have explicit authority to oversee our intelligence agencies?

Landay: I’m not sure that they have the final word. After the Intelligence Committee voted, very narrowly, to approve the final draft of the report, they also gave the CIA three months in which to respond to their findings, as well as to recommend redactions of information that perhaps, in their judgment, would compromise some aspect of national security. We don’t know how much of the report we’re going to get to see. There’s a 300-page executive summary, but the report itself is massive. It’s 6,300 pages. There are thousands of footnotes. And so the committee was waiting for the CIA’s official response. They were supposed to give that to the committee within 60 days. They finally got it after six months.

But they’ve also been requesting additional documents, which they’ve not gotten. And that’s where it appears the fight was hung up — when it became clear to the CIA that the committee was asking for documents that they shouldn’t have had. Then the CIA went back and checked logs of the computers in this special facility — which is where the allegation that they were monitoring these computers came from — and determined that the staff had removed documents from this facility that they shouldn’t have had.

Holland: It seems like the agency essentially gave away the fact that they were monitoring the staffers when they confronted them over the removal of these documents, right? How else would they know?

Landay: “Monitoring” has a number of connotations. Even my computer here in our newsroom keeps logs of my use of my computer to make sure that I’m not doing inappropriate things with it. That seems to be the nature of the monitoring that the CIA was doing. And it doesn’t appear to have been real-time monitoring — there wasn’t a CIA officer who was sitting in another room watching what keystrokes the committee staffers were making.

It’s a requirement in the federal government, particularly on classified systems, to have monitoring in the form of logging computers so that they can audit the use of those computers. And the question is whether or not the CIA did this without the express permission of the congressional staff, whether the congressional staff had told the CIA, “you can’t do that,” or whether they had agreed to allow this auditing log to be compiled on the computers they were using.

Holland: Do we have any sense of what these documents the staffers removed contained — what was so important about these documents?

Landay: The documents are parts of what’s been referred to as the Panetta Review. When the agency agreed to start providing millions of pages of classified emails and reports and other materials related to the interrogation and detention program, they had a team of agency officials and contractors review documents before they sent them to the committee for its use, and this team of reviewers would read the documents and summarize what these documents were and then send the documents, through a firewall, for use by the committee staff in their database. What the committee staff appears to have gotten ahold of are the summaries of these documents, which may include analytical notes that were written by the reviewer.

We do know that, at least in public, several members of the committee, in particular, Senator Mark Udall from Colorado, have said that this so-called Panetta Review shows that the official response of the agency to the committee’s report was misleading. They said there were flaws in the committee report. But his contention — and the contention of other committee members — is that the Panetta Review broadly substantiates the findings of the committee report.

Holland: What is the Federal Computer Fraud and Abuse Act, and how might it apply to this whole situation?

Landay: There’s an annual threat assessment hearing that is held by the Senate Intelligence Committee and the Armed Services Committee on both sides of the Congress. During this year’s threat assessment hearing, Senator Wyden of Oregon asked the CIA director, John Brennan, whether or not this particular act applied to the CIA, and the reply came back to Wyden that, in fact, it did. And this law basically bars accessing of protected computers by people who don’t have the authority to access those computers or exceed their authority in accessing those computers.

Holland: You and your colleagues wrote, “The extraordinary battle has created an unprecedented breakdown in relations between the spy agency and its congressional overseers and raises significant implications for the separation of powers between the legislative and executive branches.” Can you put this in a larger context?

Landay: The question is whether the professional staff of the Senate Intelligence Committee, as the legal overseers of the CIA, had the legal and constitutional power to take these classified documents and walk them out of a highly guarded CIA facility to their own very high security offices up on Capitol Hill or that they exceeded their oversight powers in doing so. And this has been a constant theme, a constant tug of war in the history of our republic between the executive and the Congress over the powers of the Congress to oversee the executive and the ability of the Congress to obtain documents from the executive. We’ve seen this many, many times before. For example, we’ve seen it in the case of the demands by the Senate Judiciary Committee — and other committees — for Justice Department memos or legal opinions authorizing the use of drones or other means to kill Americans involved in terrorism.

That’s what lies at the heart of this dispute, the ability or the power of congressional overseers to oversee what is supposed to be a very clandestine, secretive agency involved in espionage.

Joshua Holland was a senior digital producer for and now writes for The Nation. He’s the author of The Fifteen Biggest Lies About the Economy (and Everything Else the Right Doesn’t Want You to Know about Taxes, Jobs and Corporate America) (Wiley: 2010), and host of Politics and Reality Radio. Follow him on Twitter: @JoshuaHol.
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