The following is an excerpt from Lords of Secrecy: The National Security Elite and America’s Stealth Warfare by Scott Horton. Reprinted with permission from Nation Books.
ON MARCH 11, 2014, California Sen. Dianne Feinstein stepped to the well of the Senate to deliver a speech exposing in stark terms a struggle between congressional investigators and their oversight subject: the Central Intelligence Agency. Feinstein was an unlikely critic of the practices of the intelligence community. The wife of investment banker Richard C. Blum, who managed enormous capital investments in corporations serving the American defense and intelligence communities, Feinstein had distinguished herself among Senate Democrats as a staunch CIA defender. In her long service on the Senate Intelligence Committee, which she had chaired since 2009, Feinstein established close personal ties with key senior agency figures—championing the candidacy of former deputy director Stephen Kappes to head the agency after Barack Obama was elected.
Patiently and meticulously, Feinstein unfolded the string of events that led her committee to launch the most exhaustive congressional probe of a single CIA program in the nation’s history. “On December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed video tapes of some of the CIA’s first interrogations using so-called enhanced techniques,” she stated.
CIA director Michael Hayden had assured congressional overseers that they had no reason to be concerned: routine written field reports, what Hayden called CIA operational cables, had been retained. These documents, Hayden said, described “the detention conditions” of prisoners held by the CIA before it decided to shut down the program as well as the “day-to-day CIA interrogations.” Hayden offered the senators access to these cables to prove to them that the destruction of the tapes was not a serious issue. Moreover, he reminded them that the CIA program was a historical relic: in the fall of 2006 the Bush administration ended the CIA’s role as a jailer and sharply curtailed its program of “enhanced interrogation techniques” (EITs)—specifically eliminating techniques that most of the international community, including the United States in the period before and after the Bush presidency, had viewed as torture, such as waterboarding.
Nevertheless, the Senate committee had never looked deeply into this program, and Hayden’s decision to offer access to the cables opened the door to a careful study, which was accepted by then-chair Jay Rockefeller. Early in 2007, two Senate staffers spent many months reading the cables. By the time they had finished in early 2009, Feinstein had replaced Rockefeller as committee chair, and Barack Obama had replaced George W. Bush as president. Feinstein received the first staff report. It was “chilling,” she said. “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.”
This first exploration of the dark side of CIA prisons and torture led committee members to recognize a serious failure in its oversight responsibilities. The committee resolved with near-unanimity (on a 14–1 vote) to launch a comprehensive investigation of the CIA program involving black sites and torture.
But the CIA was not simply going to acquiesce to a congressional probe into the single darkest and most controversial program in the organization’s history. Since it could not openly do battle with its congressional overseers, the agency turned to a series of tactics that it had honed over the difficult decades following the Church Committee inquiries of the mid-1970s. Throughout the subsequent decades, the CIA complained loudly about the burdens of oversight and accountability—while almost always getting its way.
Indeed, the dynamics had changed dramatically after the coordinated terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001. In the ensuing years, the CIA’s budget ballooned to more than double its pre-2001 numbers. Moreover, it got the go-ahead to launch programs previously denied or sidetracked, and clearance to encroach on the Pentagon’s turf through extensive operations using armed predator drones. Washington, it seemed, had forgotten how to say no to Langley. Still, the operation of the black site and EIT program involves a strikingly different dynamic—because the spring that fed it came not out of Langley but from the office of Vice President Dick Cheney, inside the White House.
Senior figures in the CIA, including the agency’s senior career lawyer, John Rizzo, fully appreciated that the black sites and the EITs presented particularly dangerous territory. Exposure of these programs could damage some of the agency’s tightest points of collaboration with foreign intelligence services—authoritarian regimes such as Egypt, Jordan, Morocco, Pakistan, Thailand, and Yemen, as well as among new democracies of Eastern Europe, like Lithuania, Poland, and Romania. British intelligence had been deeply involved and feared exposure, considering the domestic political opposition and the rigorous attitude of British courts.
CIA leadership was also focused on the high likelihood that the program, once exposed, would lead to a press for criminal prosecutions under various statutes, including the anti-torture act. It therefore moved preemptively, seeking assurances and an opinion from the Justice Department that would serve as a “get out of jail free” card for agents involved in the program. But when those opinions were disclosed, starting hard on the heels of photographic evidence of abuse at the Abu Ghraib prison in Iraq—much of it eerily similar to techniques discussed in the Justice Department opinions—a political firestorm erupted around the world. The Justice Department was forced to withdraw most of the opinions even before George W. Bush left Washington.
Leon Panetta, arriving at the CIA in 2009, found top management preoccupied with concerns about fallout from this program.
The CIA chose to react to plans for a congressional probe cautiously, with a series of tactical maneuvers and skirmishes. Its strategy was apparent from the beginning: slow the review down while hoping for a change in the political winds that might end it. And from the outset it made use of one essential weapon against its congressional overseers—secrecy. For the agency, secrecy was not just a way of life; it was also a path to power. It wielded secrecy as a shield against embarrassing disclosures and as a sword to silence and threaten adversaries. It was an all-purpose tool.
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The agency’s first line of defense was to insist on what at first blush were minor inconveniences: congressional staff could not sit in their offices on Capitol Hill—not even if secured and cleared for the examination of classified materials. Instead, they had to travel to a CIA-leased facility in suburban Virginia to do so. Moreover, the investigators could not use congressional staff computers for these purposes. Materials were to be installed on “a stand-alone computer system” furnished by the CIA but with its own “network drive segregated from CIA networks” and under the control of the Senate. These requests seemed innocuous, and consequently Feinstein and her vice chair, Missouri Sen. Kit Bond, agreed to them. Later these measures would provide cover for more devious antics.
Before any materials could be turned over, the CIA insisted on its own review to be certain that the documents were relevant to the committee’s request and were not subject to a claim of executive privilege. As it turns out, more than 6 million pages of documents were covered by the Senate request. It would take many months to review them all—and that of course meant a delay of many months before the Senate researchers could do so. The CIA, guided by its lawyers, thus assumed a posture that was common for American corporate lawyers engaged in high-stakes commercial litigation—“discovery warfare.”
The adversary’s requests for documents could not be denied but could be slowed down, complicated, and subjected to privilege claims. But this was not a billion-dollar battle between corporate giants with comparable legal rights. It was an exercise of democratic process in which the Senate was discharging its constitutional duty of oversight over an organ of the executive branch, the CIA. The agency’s right to assert claims of privilege was at best legally doubtful, and its insistence on the need to test the materials for relevance was still thinner gruel. Even if irrelevant, the CIA would have no right to withhold the documents from the investigators. Moreover, the Senate, and not the CIA, was the ultimate judge of relevance for these purposes.
Even more absurd, in order to avoid wasting valuable man-hours of CIA agents on this review process, the CIA proposed bringing in outside contractors—not government employees—to complete it. In order to filter submissions to its congressional overseers, the CIA decided to let another team of persons, who otherwise would not have reviewed these documents, read and evaluate all of them. As they did so, the review team simply dumped the documents (which ultimately would amount to 6.2 million pages) on the committee, without offering them any index, organization, or structure. Delay was clearly the principal operating motivation for the CIA.
Furthermore, the CIA soon turned its skills of spycraft against its congressional overseers. “In May of 2010, the committee staff noted that documents that had been provided for the committee’s review were no longer accessible,” Feinstein noted in her speech. When confronted about this, the committee’s CIA interlocutors responded with a series of lies. First they denied that the documents had been removed, then that it was a problem for personnel servicing the computers. Finally they asserted that the “removal of the documents was ordered by the White House.” But the White House denied this and provided further assurance that the CIA would stop accessing the committee’s computers and removing documents.
That same year, committee investigators made another curious discovery. As the Senate committee was reviewing the documents, some CIA staffers were doing the same and were preparing an internal memorandum that summarized them, apparently intended as a document to brief Director Panetta. This document was also delivered to the committee and reviewed by its investigators. It would play a critical role after December 2012, when the committee delivered a 6,300-page study with a 480-page executive summary from its report to the White House and CIA for review and comment.
True to its slow-walking strategy, the CIA took more than six months—until June 27, 2013—to respond. When it did so, the earlier confidential response was backed by the curiously coordinated crossfire of an assortment of actors—former CIA directors and senior officials, disgraced former CIA agents whose involvement in the torture program was documented in the report, and media figures, often with close ties to the Bush administration authors of the program.
Their message was simple: waterboarding has produced major breakthroughs and disrupted actual terrorist plots, ultimately putting American Special Forces in a position to kill Osama bin Laden in the Abbottabad raid of May 2, 2011. However, the CIA’s own records furnished no support for these claims.
This unofficial CIA response was driven heavily by apparent leaks from within the agency, and the hand of Director John O. Brennan was later revealed in the process. While the agency’s defenders concentrated their fire on specific facts found and conclusions drawn by the report, it would turn out that the CIA’s own internal review had come to most of the same conclusions. This was hardly surprising, since both the committee and the CIA were summarizing the same documents.
Both the internal Panetta report and the Senate committee report scrutinized the documents and evidence and found nothing to support claims that torture, particularly waterboarding, produced anything that materially advanced the search for terrorist leaders or planned strikes; both apparently concluded that these claims were unfounded. That produced intense embarrassment for the CIA and exposed the CIA’s criticism of the Senate report as disingenuous—as Feinstein noted, it stood “factually in conflict with its own internal review.”
Even more worryingly, while the Senate report was for the moment holding back from policy recommendations and other action, it set the stage for a high-stakes game on accountability for torture, including unexplained homicides involving prisoners.
The CIA had thus far escaped meaningful accountability through a combination of internal reviews and an independent examination of these questions through a special prosecutor appointed by the Bush administration Justice Department. In the end, the special prosecutor, John Durham, focused on a handful of cases involving homicide. He did not exonerate those involved but opted not to file charges on the basis of prosecutorial discretion. Durham had apparently concluded that the prosecution would inevitably involve the disclosure of highly classified information—including the Justice Department’s authorization of torture and the CIA’s use of it—that would harm the interests of the United States (or, more particularly, the Justice Department and CIA). He therefore dropped the investigation, even though the evidence collected had already proven sufficient in some instances for successful prosecutions in the military justice system.
In the second half of 2013 and the early months of 2014, the feud between the CIA and the Senate oversight committee continued to percolate. The roles played by the White House and President Obama himself were consistently ambiguous. On one hand, Obama assured Feinstein, other key members of Congress, and significant supporters who felt strongly about the issue that he was “absolutely committed to declassifying that report.” On the other hand, aides quickly clarified that it meant only the 480-page executive summary, and only after the CIA and other agencies had reached a consensus with the White House on redactions from the report.
Obama’s key spokesman on the issue continued to be his former counterterrorism adviser, John O. Brennan, a career CIA man whose own involvement with the program was never fully clarified, and whose hostility to the Senate investigation and report could hardly be contained. By March 2013, Brennan had succeeded Panetta as head of the CIA.
As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who were trying to manage the fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange word to apply to an oversight committee’s examination of documents prepared by the agency it is overseeing), someone at the agency decided to break into the Senate computers and run searches.
On January 15, 2014, Brennan met with Feinstein and had to acknowledge that the CIA had run searches on the Senate computers. Far from apologizing for this intrusion, Brennan stated that he intended to pursue further forensic investigations “to learn more about activities of the committee’s oversight staff.”
The Senate committee responded by reminding Brennan that as a matter of constitutional separation of powers, the committee was not subject to investigation by the CIA. It also pressed to know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the questions.
By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had been snooping on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA computers to gain access to the Panetta report and other documents. The staffers had then illegally transported classified information to their Capitol Hill offices, removing it from the secure site furnished by the agency.
In addition, the Justice Department had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had made a referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the US Congress.