POLITICS
10/31/2014 07:35 am ET Updated Nov 05, 2014

You'll Probably Never Know Why The CIA Spied On The Senate

ASSOCIATED PRESS

WASHINGTON -- When Sen. Dianne Feinstein (D-Calif.) took to the Senate floor earlier this year to allege that the CIA had spied on the U.S. Senate, she confirmed the existence of a secret document.

That document, she said, could further validate a scathing report on the spy agency's torture practices that is expected to be unveiled in the next few weeks.

The document is known as the "Panetta Review," and senators contend it backs up damning conclusions in their still-classified report on the CIA's post-9/11 enhanced interrogation program. Senate investigators uncovered the internal CIA document in their years-long probe, and the agency was so concerned that it alleged the investigators had broken the law in obtaining the review. CIA agents, in turn, searched Senate computers.

But the Panetta Review may never see the light of day.

As chair of the Senate Intelligence Committee, Feinstein plans to release a redacted summary of the 6,300-page torture report, likely next month. To understand the importance of the CIA document -- considered so sensitive that the agency was willing to risk a constitutional showdown with the legislative branch -- requires a look back at exactly how the nation's top spies wound up in a clandestine battle with their elected overseers.

At the heart of the fight is the massive Senate study, one of Feinstein’s landmark achievements. Its credibility could hinge on the Panetta Review.

What Is The Panetta Review?

In March 2009, Feinstein announced that her committee would conduct a study of the CIA’s George W. Bush-era interrogation program, in which suspected terrorists were shipped to secret overseas prisons and subjected to harsh techniques such as waterboarding that many, including President Barack Obama, equate with torture. According to an exchange of letters between Feinstein and then-CIA Director Leon Panetta, the study would be conducted at a secure CIA facility in Northern Virginia, where Intelligence Committee staff would be provided with access to the mountains of CIA records pertaining to the program.

In an effort to catalog and track the millions of documents being provided to the committee, Panetta established the New Review Group on Rendition, Detention and Interrogation in March 2009.

“The Review Group will assemble data and formulate coordinated positions on the complex, often controversial, questions that define rendition, detention, and interrogation,” Panetta wrote in a 2009 public statement announcing the group.

The language suggests that the review group was launched to create an official internal report.

“When a government agency announces a report such as this, it clearly implies its intention to provide the end product to the public,” said Sen. Martin Heinrich (D-N.M.), an Intelligence Committee member.

But Panetta's review never emerged, and the agency has denied that it was a formal analysis of the enhanced interrogation program. Instead, the CIA contends that the result of the review group’s efforts was an informal collection of summaries, a draft document that was never officially approved or returned to the agency director. That body of work does exist, though, and it has come to be known as the Panetta Review.

The agency says that the Panetta Review was never formally completed and that it was stopped prematurely to avoid complicating a concurrent Justice Department investigation of the interrogation program. Because the Panetta Review was an internal draft document, the legislative branch was never entitled to have it, the agency contends.

Justice Department investigators were provided access to the internal summaries, however, because their investigation was a criminal probe.

What’s The Significance Of The Panetta Review?

The Intelligence Committee contends that the internal summaries in the Panetta Review align with much of its own study’s harsh conclusions about the agency. But the CIA has publicly disputed the key parts of the still-secret congressional study.

Senators and staffers argue that the fact there are people within the CIA who agree with the Senate report's findings is important for the public to know and bolsters the credibility of the Senate investigation. The Panetta document, they say, illustrates internal CIA debate over the enhanced interrogation program.

“If there’s dissent within the agency over the conduct and worth of the CIA’s detention and interrogation program, it ought to be made public alongside the CIA’s official response. By covering up the results of this review, CIA Director [John] Brennan is disavowing the hard, deliberative work of his officers, and instead putting forward the narrative that a torture program designed and propagated by a handful of individuals reflects the views and values of the entire Agency,” Heinrich said in a statement to The Huffington Post. “This is wrong, and it’s a disservice to the CIA and its legacy.”

How Did Senate Staffers Get Their Hands On It?

The first the public learned of the Panetta Review was when Sen. Mark Udall (D-Colo.) made a simple request of CIA general counsel nominee Caroline Krass at her nomination hearing in December 2013.

The CIA, he noted, had done its own internal review of the enhanced interrogation program. Udall wanted a copy.

“It appears that this review, which was initiated by former Director Panetta, is consistent with the Intelligence Committee’s report, but amazingly, it conflicts with the official CIA response to the committee’s report," Udall said.

As Udall left the hearing room, this reporter (then with McClatchy Newspapers) asked him how the Intelligence Committee found out about this internal review. The senator struggled to respond. “I don’t think I can say,” he finally answered.

It was, in hindsight, an appropriately cryptic response.

Parts of the Panetta Review, unbeknownst to the CIA, were already tucked away in a Senate safe. Committee staff had slipped some of the critical document out of the secure CIA facility sometime after June 2013 to protect it from the agency and locked it up in the panel's secure offices.

Their motivation for doing so emerged when Feinstein made her dramatic public allegations in March. The CIA, she said, had a proven track record of hiding evidence it didn’t want its overseers to find and had even removed documents previously provided to Senate staff from their walled-off computer system at the CIA facility.

The staffers, Feinstein said, had discovered the documents by using a search tool that the CIA itself had created for their use to sift through more than 6 million records relevant to the torture probe. They didn't want the CIA's own contradictory opinions to vanish.

What Happened Next?

Udall's question to Krass sparked a behind-the-scenes battle, with CIA personnel frantically trying to discover how the Senate had discovered the Panetta Review. It all burst into view when Feinstein took to the Senate floor.

Warring criminal referrals were sent to the Justice Department -- one by the CIA alleging that Senate staffers had hacked into agency computers to find the review, and one by the CIA's Office of Inspector General saying that the agency may have hacked the Senate staff. The Justice Department declined in July to investigate either matter further.

The CIA inspector general, meanwhile, performed a comprehensive review of allegations that the agency improperly monitored the committee’s computers. Those allegations were confirmed, and Brennan apologized to Feinstein in July.

On the Senate side, the Office of the Sergeant-at-Arms was tasked by Majority Leader Harry Reid (D-Nev.) with investigating the actions of Intelligence Committee staff in acquiring the Panetta Review: Was there a whistleblower? Did someone tip off staff to where the document could be found? Did the CIA accidentally dump the document into the massive trove of records that was given to the panel for the study? Or, as agency officials have implied, did Senate staff dig into CIA hard drives to find the document on their own?

The sergeant-at-arms investigation failed to come to any conclusions on how the internal discussions wound up on Senate computers, in part because the investigators did not trust the computer records provided by the CIA.

“The logs the CIA gave [the Sergeant-at-Arms Office] show all kinds of activity by Senate staff,” said a source briefed on the investigation. But the records provided were copies of the original computer logs, the source said, as the system was overridden at regular intervals throughout the committee’s five-year study. The fact that the records were copies raised concern over their authenticity, the individual said.

Another person familiar with the investigation said the Sergeant-at-Arms Office had the records for months but did not inform the CIA of its concerns until last week. When the agency was informed of those concerns, the person said, it offered to authenticate the records. The source said the agency has not yet received an actual request to do so, however, and all indicators point to the sergeant-at-arms investigation being closed.

Intelligence Committee staffers could, perhaps, shed light on the matter, but they have not spoken out publicly, and sources said they were not interviewed for the investigation. The Sergeant-at-Arms Office has declined repeated requests for comment on the matter.

The CIA Office of Inspector General did not examine how the Panetta Review reached Intelligence Committee staff because its authority is limited to the agency. The inspector general also determined that the criminal accusations leveled at the staffers by the agency -- that they had hacked into CIA databases -- were based on inaccurate information.

Will The Panetta Review Ever See The Light Of Day?

No one knows what will ultimately become of the Panetta Review.

The Justice Department this week declined to provide the document in a Freedom of Information Act lawsuit.

It’s unclear if some parts of the review will be included in the 500-page executive summary of the Senate's torture study that is released to the public. Feinstein has said that committee staff didn’t rely on the disputed document when writing the report. And the committee said it doesn’t have any plans to release the entire CIA document with the executive summary.

The CIA, which has read the entire Senate report, is expected to release a redacted version of a June 2013 response to the study indicating that the agency stands by its original objections, a U.S. official told HuffPost.

Further complicating the Panetta Review’s fate is the possibility that Republicans will take control of the Senate -- and thus the helm of the Intelligence Committee -- in the upcoming midterm elections. Having often expressed their disapproval of the current staff’s actions in taking the document, Republican leadership could very well return it to the CIA come January.

All this uncertainty remains despite the importance Feinstein herself put on resolving a battle that strikes at the heart of the constitutional separation of powers.

“How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee,” she said in her dramatic March floor speech.

The public, of course, can still hope that the Panetta Review will eventually be declassified.

But the more likely scenario is that it gets leaked. Ahem.

Ryan Grim contributed reporting.

HuffPost

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