Sen. Feinstein to CIA: Don’t Gore My Ox
By Dennis Loo (3/13/14)
“The concept of the ‘official secret’ is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude.”[i]
“The interrogations and the conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.” - Sen. Dianne Feinstein, Chairman of the Senate Intelligence Committee, 3/11/14
Sen. Dianne Feinstein, who never met an NSA surveillance program that she didn’t like and who called Edward Snowden a traitor for revealing to the world that the NSA was spying on everybody, delivered on Tuesday from the Senate floor a 45-minute blistering attack on the CIA for, of all things, daring to spy on, secretly take documents away from the Senate Intelligence Committee’s investigation of the CIA’s detention and torture program, and strong-arming the Committee by filing criminal charges against it for a putative theft of documents.
Near the end of her speech she declares,
Besides the constitutional implications [violating the separation of powers and Congress’ role of supervising the executive branch], the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
So the good Senator has finally discovered the Fourth Amendment! It’s one thing for the NSA to be spying on everyone but quite another for the CIA to spy directly upon the Senate Intelligence Committee in an effort to intimidate it. I wonder what it was that Feinstein didn’t previously understand about the meaning of universal warrantless surveillance – that universal also includes Congress?
Reading Feinstein’s speech is a little like hearing a police officer who has been guilty in countless instances of police brutality, publicly excoriating his partner for daring to use the same tactics on his own partner! How dare the CIA do this to Congress!
At the same time that Feinstein is, as Edward Snowden has pointed out, a huge hypocrite, this furor does provide opportunities for the people since this is real infighting within the ruling class and in the course of such scandals, fissures and cracks can be widened and create a much wider scope for both further damaging revelations of criminal and repressive activities and for broader public awareness and resistance.
Highlights from her speech:
The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.
In other words, the CIA’s torture program was going on for four years before they let Congress in on it.
On December 6, 2007, the New York Times revealed that the CIA had destroyed the videotapes of their waterboarding prisoners.
After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.
The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes.
Were this a court case, shredding the videotapes would have been considered destruction of evidence and grounds for prosecution. But since the esteemed CIA Director (formerly NSA Director) told the Senate that “this was not destruction of evidence,” who are we in the Senate to question his judgment?
And of course, paper records of the waterboarding sessions were “more than adequate representation[s]” of the screaming, vomiting, and suffocation through drowning that the videotapes showed. The fact that they destroyed the tapes doesn’t prove that they were afraid that these tapes would graphically demonstrate their commission of war crimes. Of course.
Because of the furor around the tapes’ destruction, CIA Director Hayden agreed to give the Senate Intelligence Committee access to the CIA’s records about its detention and interrogation program. In the course of this review, the Committee staff was given 6.2 million pages of documents. The resulting 6,300 page Committee Report based on a review of those documents was completed in December 2012. That report has to date still not been released to the public.
In the course of the Committee’s review of the CIA documents, the Committee staff became aware in 2010 – FOUR YEARS AGO - but Feinstein is only now revealing this publicly – that certain documents that had previously been made available to the Committee by the CIA had disappeared.
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.
I went up to the White House to raise this issue with the then-White House Counsel, in May 2010. He recognized the severity of the situation, and the grave implications of Executive Branch personnel interfering with an official congressional investigation. The matter was resolved with a renewed commitment from the White House Counsel, and the CIA, that there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee.
On May 17, 2010, the CIA’s then-director of congressional affairs apologized on behalf of the CIA for removing the documents. And that, as far as I was concerned, put the incident aside.
To recap: the CIA surreptitiously hacks into the Senate Committee’s computers that were supposed to be isolated from the CIA’s access and takes away documents they had previously given the Committee. Feinstein learns of this and asks the CIA. The CIA gives three different answers to her questions, all apparently lies. When the White House Counsel and CIA assure her that they realize how serious this is and promise that it won’t happen – ever again! – Feinstein puts “the incident aside.”
Let’s say that Anonymous hacked into Congressional computers and stole sensitive documents from their computers and they were found out. In response they promise not to do it again. Do you think that this would “put the incident aside”?
Whistleblower Edward Snowden tells the world in June 2013 what the NSA has been doing and reveals that the DNI Director and the NSA Director have been expressly lying to Congress and the American people about what they’ve been doing.
On March 12, 2013, during a US Senate Select Committee on Intelligence hearing, Senator Ron Wyden asked DNI Director James Clapper:
And this is for you. Director Clapper, again on the surveillance front. And I hope we can do this in just a yes or no answer because l know Senator Feinstein wants to move on.
Last summer, the NSA director was at a conference, and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here. “The story that we have millions or hundreds of millions of dossiers on people is completely false.”
The reason I’m asking the question is, having served on the committee now for a dozen years, I don`t really know what a dossier is in this context. So what l wanted to see is if you could give me a yes or no answer to the question, does the NSA collect any type of data al all on millions or hundreds of millions of Americans?
Clapper responded, "No, sir."
Wyden: "It does not?"
Clapper: "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."
As recounted in the Wikipedia entry for James Clapper:
When Edward Snowden was asked during his January 26, 2014 TV interview in Moscow what the decisive moment was or why he blew the whistle, he replied: “Sort of the breaking point was seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress. [...] Seeing that really meant for me there was no going back.” 
In response to Snowden’s revelations, here is what Sen. Feinstein said on June 17, 2013:
“I don't look at this as being a whistleblower. I think it's an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.
The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.
“He violated the oath, he violated the law. It's treason.”
The DNI Director Clapper lies when asked a direct question by the Senate Select Committee, chaired by Feinstein, is the NSA spying on Americans. When she and the rest of the world learn that Clapper lied, does Feinstein go after the liar, James Clapper? No, she pillories the messenger, Edward Snowden.
What does Obama say about Clapper’s lies?
“I think that Jim Clapper himself would acknowledge, and has acknowledged, that he should have been more careful about how he responded,” Obama told CNN in an interview that aired Friday. “His concern was that he had a classified program that he couldn’t talk about, and he was in an open hearing in which he was asked, he was prompted to disclose a program, and so he felt he was caught between a rock and a hard place.”
“As I said in the speech that I gave a couple of weeks ago, what’s clear is that we are going to have to do a better job of being transparent about what we do, to have a robust public debate about what we do,” Obama added. “But it’s going to take some time. It’s going to take some work, partly because the technology has just moved so quickly that the discussions that need to be had didn’t happen fast enough, didn’t happen on the front end.”
Here is Obama-double-talk in all of its glory. In response to his DNI Director being caught lying, Obama passes it off as Clapper needing to be “more careful about how he responded.” Then he says, “we are going to have to do a better job of being transparent.” In other words, my administration is all about being transparent and when we lie it’s a matter of not responding carefully enough because we can’t actually disclose to the public what we’re doing. We can’t tell the American people that we’re spying on all of them. So we have to debate this and be transparent about it, just not transparent enough to tell you the actual truth. Truth isn’t the same thing as transparency, you see.
Returning to Feinstein’s Tuesday speech:
At some point in 2010, committee staff searching the documents that had been made available found draft versions of what is now called the “Internal Panetta Review.”
We believe these documents were written by CIA personnel to summarize and analyze the materials that had been provided to the committee for its review. The Panetta review documents were no more highly classified than other information we had received for our investigation—in fact, the documents appeared to be based on the same information already provided to the committee.
What was unique and interesting about the internal documents was not their classification level, but rather their analysis and acknowledgement of significant CIA wrongdoing.
The staff did not rely on these Internal Panetta Review documents when drafting the final 6,300-page committee study. But it was significant that the Internal Panetta Review had documented at least some of the very same troubling matters already uncovered by the committee staff – which is not surprising, in that they were looking at the same information.
As CIA Director Brennan has stated, the CIA officially agrees with some of our study. But, as has been reported, the CIA disagrees and disputes important parts of it. And this is important: Some of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.
To say the least, this is puzzling. How can the CIA’s official response to our study stand factually in conflict with its own Internal Review?
In other words, the CIA inadvertently (or else through a CIA whistleblower) provides the Intelligence Committee a copy of its own internal review, the Internal Panetta Review, that reaches the same conclusions about the grotesque torture and detention practices of the CIA that the Senate Intelligence Committee’s 6,300 page report finds. But for public purposes, CIA Director John Brennan rigorously disputes what the 6,300 page report says and what the CIA’s own Internal Review says. To cover for this, the CIA’s Acting General Counsel files a criminal complaint against the Senate Committee for alleged hacking of CIA computers. According to news reports, this Acting General Counsel is Robert Eatinger who is named no less than 1,600 times in the Intelligence Committee’s 6,300-page report. As the Washington Post reported:
Eatinger was one of two CIA lawyers who reportedly told the director of the CIA’s clandestine service in 2005 there were no legal requirements for the agency to hold onto 92 videotapes that showed the abusive tactics used by its interrogators against al-Qaida prisoners. Although Eatinger and the other lawyer did not specifically sanction it, the CIA official, Jose Rodriguez, later ordered the tapes destroyed.
Thus, matters come full circle. The attempted cover-up continues of the CIA’s torture and detention practices. The pot is boiling.
[i] Max Weber, “Bureaucracy,” in Classical Sociological Theory: A Reader, ed. Ian McIntosh (New York: NYU Press, 1997), 151.
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