Deleted CIA files: Did the Senate committee err in trusting the agency?

When the CIA searched for and deleted hundreds of pages of internal agency documents being reviewed by the Senate Select Committee on Intelligence at a secure site in Virginia, that constituted unreasonable search and seizure that may have violated the Constitution and a range of federal laws, Sen. Dianne Feinstein (D) of California said Tuesday.

It also highlighted the tense relationship between the top US intelligence agency and Senator Feinstein’s committee, which was reviewing the CIA’s interrogation programs during the Bush administration’s war on terror.

Yet at another level, the conflict between the Central Intelligence Agency and Congress appears tightly linked to the unusual, and trusting, technology arrangement in which the committee allowed the CIA to set up a special computer system to be used by committee staff to produce a report that would ultimately be critical of the spy agency, expert observers say.

“It’s a classic case of the fox looking after the henhouse,” says one technical expert who spoke on condition of anonymity.

“I can understand why Feinstein is so angry about this. But really, the committee allowed this to happen because they allowed the CIA to set up and control the systems and documents, the whole thing. The agency had full control. The fox was guarding the henhouse – and there were some fat hens in there.”

The American Civil Liberties Union, however, blamed the CIA for the dispute with the senator, saying the intelligence agency was refusing to honor a commitment to come clean about its alleged torture practices.

“It’s long past time, as the events of this week have shown, for the Senate report to be released,” says Hina Shamsi, director of the ACLU’s national security project. The group has filed suit under the federal Freedom of Information Act to receive the CIA’s own internal reports on the matter.

“With respect to the CIA’s own reports explaining its actions, we’ve been told [they] could be released to us as soon as May,” she says. “These are necessary for the American public to have a fuller story about what happened. It’s necessary to show why, and the extent to which, the agency misled those charged with its oversight and the American public.”

Feinstein’s Senate Select Committee on Intelligence (SSCI) voted in March 2009 to begin a comprehensive review of the CIA’s detention and interrogation program. It soon requested documents from the agency.

That same year, then-CIA Director Leon Panetta agreed to supply the requested documents, but only if committee staff reviewed all the classified documents in a secure environment. 

In letters to Feinstein’s committee, Mr. Panetta promised the agency would provide a “stand-alone computer system” with a “network drive segregated from CIA networks” at a secure facility in northern Virginia, Feinstein said in her speech Tuesday on the Senate floor.

Under the agreement, “the CIA established a secure electronic reading room at an Agency facility where designated SSCI personnel could review these highly classified materials,” writes Neal Higgins, director of the CIA’s office of congressional affairs, in a legal declaration responding to a lawsuit by the American Civil Liberties Union.

In his statement, Mr. Higgins describes how the CIA “created a segregated network share drive at this facility that allowed Members of the Committee and staffers to prepare and store their work product, including draft versions of the SSCI Report, in a secure environment.”

That computer drive could be used by committee staff, and the only CIA staff able to access it would be information technology personnel who would “not be permitted to share information from the system with other CIA personnel, except as otherwise authorized by the committee,” Higgins wrote.

In all, the secure facility in northern Virginia operated by the CIA accumulated 6.2 million pages of documents about the CIA’s interrogation methods under the Bush administration.

As a matter of routine, whenever the staff found a document that was “particularly important or that might be referenced in our file report, they would often print it or make a copy of the file on their computer so they could easily find it again,” Feinstein said. “There are thousands of such documents in the committee's secure spaces at the CIA facility.”

Ultimately, the committee sifted through and organized the jumble of documents – and a picture began to emerge. Of particular interest was a draft internal CIA report developed for Panetta that corroborated many of the Senate committee's own conclusions, Feinstein says.

But in 2010, committee staff noticed that documents previously delivered to them for review at the secure facility “were no longer accessible.” When confronted by committee staff, CIA personnel at the secure location “initially denied that documents had been removed,” Feinstein said.

At that point, the CIA then claimed that information technology personnel, mostly contractors, were responsible for “removing the documents themselves without direction or authority,” Feinstein said.

“It was this computer network that notwithstanding our agreement with Director Panetta was searched by the CIA this past January,” Feinstein said Tuesday.

The 2010 deletions included 870 pages of documents in February 2010 and 50 or so more pages removed in May 2010.

“This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements,” Feinstein said. “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.”

Then the pattern repeated, she said. In early January 2014, Feinstein said, the CIA informed her committee staff it would not be providing the internal “Panetta Review” to the committee, “citing the deliberative nature of the document.”

Soon after, on Jan. 15, current CIA Director John Brennan called an “emergency meeting to inform me and Vice Chairman [Saxby] Chambliss that without prior notification or approval, CIA personnel had conducted a search – that was John Brennan's word – of the committee computers at the off-site facility,” Feinstein said.

Mr. Brennan rebutted the accusations Tuesday.

“I am deeply dismayed that some members of the Senate have decided to make spurious allegations about CIA actions that are wholly unsupported by the facts,” Brennan said in a statement.

“I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the executive branch or legislative branch," he said. “Until then, I would encourage others to refrain from outbursts that do a disservice to the important relationship that needs to be maintained between intelligence officials and congressional overseers.”