The relationship between the CIA and its Senate overseers has never been worse.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal., John HudsonJohn Hudson is a senior reporter at Foreign Policy covering diplomacy and national security.
Since the two congressional committees that oversee U.S. intelligence agencies were established almost four decades ago, a set of unspoken agreements, rather than hard-and-fast rules and laws, has governed how members of Congress and their staff obtain access to information about some of the nation’s most highly classified national security programs. But now, in a rare public feud between the Senate Intelligence Committee and the CIA over its interrogation of suspected terrorists, each side accuses the other of violating those agreements, and the system of checks and balances that binds the two sides together has been strained more than in any period in recent memory.
"This might well be the most acrimonious public moment between the CIA and a Senate committee since the time of the post-Watergate Church Committee investigations nearly 40 years ago," said former Justice Department lawyer Dan Metcalfe, referring to one of two congressional investigations of domestic spying and other abuses by the CIA, led by Sen. Frank Church (D-Idaho), that gave birth to the committees and the modern system of intelligence oversight. In his earlier role as director of the Office of Information and Privacy, Metcalfe guided all federal agencies on sensitive and classified disclosure issues from 1981 to 2007. In that period, he said, he could not recall a time when CIA-congressional relations plunged to such caustic depths.
In interviews, ten current and former congressional staff members and U.S. government officials painted the same grim picture: The relationship between the CIA and its Senate overseers has been poisoned amid dueling accusations over one of the darkest chapters in the spy agency’s history. (Relations in the House, where that chamber’s intelligence oversight committee hasn’t launched an aggressive investigation of the interrogation program, have been more harmonious.) The CIA believes that Senate staff working inside an agency facility in Northern Virginia improperly removed classified documents that the committee was never supposed to see because they fell outside the scope of the initial congressional inquiry and were protected by executive privilege.
For their part, several Democratic senators on the committee say that the documents vindicate their own investigation, which concludes that the CIA’s torture of detainees failed to produce any useful information about potential terror attacks. They also accuse the CIA of effectively spying on committee staffers by improperly examining the computers that they had used to review millions of pages of classified material in the CIA facility.
Both matters have been referred to the Justice Department, and the FBI has reportedly opened an investigation into the CIA’s allegations that the Senate staffers illegally removed the classified material, which consists of documents created after the interrogation program ended and thus technically fall outside the scope of the committee’s inquiry. Referral to a law enforcement agency that investigates illegal disclosures of classified information marks a stark departure from the two sides’ standard, somewhat genteel ways of settling disputes over the conduct or pace of an investigation, current and former officials said.
"These matters are typically handled internally," Metcalfe said, echoing former congressional staff members. Said one, "If you think a staffer’s gone out of bounds, you call the senator [he works for] and settle the problem. That’s the way it’s done." The former staff member called the CIA general counsel’s decision to refer the document removal to the Justice Department "pretty outrageous."
A former intelligence official remarked that if a committee staffer authorized to be in the CIA facility removed a classified document in violation of the ground rules of the investigation, it may have been a mistake in judgment, but it wasn’t "a crime."
Senate Democrats have expressed dismay at allegations the CIA monitored the work of Senate staff, who were required to do their work in an agency facility rather than in a highly-secure suite of offices in the Hart Senate Office Building on Capitol Hill. Such an "off-site" arrangement isn’t unheard of, but it’s rare. One former congressional staff member could only recall one instance in the past ten years in which he had to visit a CIA facility to review documents.
"These allegations have serious constitutional implications that go to the heart of the separation of powers, and I intend to monitor the situation closely," Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said in a statement last week. Senate Armed Services Committee Chairman Carl Levin (D-Mich.) also said last week that "such activity, if it occurred as alleged, would impede Congress’s ability to carry out its constitutional oversight responsibilities and could violate federal law."
A spokesperson for Dianne Feinstein (D-Calif.) the chair of the Senate Intelligence Committee, declined to comment.
CIA Director John Brennan has called allegations that his officers spied on Senate staffers "spurious" and "wholly unsupported by the facts." In a statement to Foreign Policy, CIA spokesperson Dean Boyd said, "The CIA believes strongly in the necessity of congressional oversight and we continue to cooperate closely with all our oversight committees." He said matters related to the committee’s investigation of interrogation, detention, and rendition of suspected terrorists have "not prevented us from working productively with [the committee] on a whole range of matters — from Ukraine to counterterrorism to Syria. In fact, CIA supports more than 1,000 engagements with Congress each year."
To be sure, the Senate committee has been largely supportive of the intelligence agencies on other controversial matters, most notably electronic surveillance of foreigners and collection of Americans’ phone records by the NSA. But the CIA’s interrogation program has been a particularly contentious one, and has also divided committee Democrats from Republicans, who largely have dismissed the still-classified and unpublished report and don’t support its conclusions.
The spat has left some veteran spies shaking their heads. Three former senior intelligence officials said that the behavior by the committee and the CIA was out of character and not in keeping with the historic practice of giving staff members’ the leeway they need to conduct oversight while respecting the CIA’s obligation to protect classified information.
According to a report by McClatchy, the agency only examined the computers used by committee staff after senators demanded access to a set of documents that fell outside the agreed upon range of dates to which the committee was supposed to have access, raising the question of how the committee staff even knew the documents existed. That version of events is a far cry from earlier reports which painted a picture of an out of control CIA that spied on staff members, or monitored their searches in real-time, to obstruct the Senate probe.
Still, the three former intelligence officials, who all have experience working with committee staff, said the agency shouldn’t have queried what documents Senate staff were examining because it violated a basic, if largely unspoken rule about committee investigations: that staff should be free of any interference by executive branch officials they’re charged with overseeing and should avoid even the appearance of meddling with an inquiry.
Another former intelligence official said that the CIA’s decision to refer the matter to the Justice Department could easily be interpreted as an attempt to intimidate congressional staff from pressing for access to information about other sensitive programs. And another official, who is generally critical of the committee’s report, said the agency had crossed a line. "The CIA should not have done what they did if they went back and looked at their searches."
Tensions between the CIA and the Senate are nothing new. Former staff members said that on previous occasions, the agency has withheld information that senators felt they had a right to see. "I’ve seen the CIA refuse to provide information. I’ve seen them provide it too late to be useful to senators," said Greg Thielmann, who has worked on both the Senate Intelligence Committee, as a senior professional staff member, and as a senior official in the State Department’s Bureau of Intelligence and Research.
One former congressional staffer said that after an air strike on a Syrian nuclear reactor in 2007 — which was later attributed to the Israeli military — he was refused access to any intelligence about Iran’s or North Korea’s potential involvement in aiding the Syrian nuclear program. From the CIA’s perspective, restricting information only to those people who need to know it is essential for protecting sources and methods of intelligence-gathering. But some committee staff felt the agency was attempting to block legitimate inquiries. The agency had only a few years earlier failed to adequately assess the state of Iraq’s nuclear weapons program, so how well it was doing on Iran and North Korea was a matter of obvious concern to its congressional overseers.
The report at the heart of the current fight has been characterized by those who’ve read it as a blistering indictment of the CIA’s interrogation programs, concluding that the agency tortured suspected terrorists in its custody without gaining access to any useful intelligence about potential future attacks. The report also concludes that the CIA misled congressional overseers and administration officials about the efficacy of the program, these people said.
That helps explain why the CIA has been so defensive about the committee’s inquiry, said a former official who has seen the 6,300-page report. "I thought it was intellectually disingenuous because it was incredibly one-sided," he said. "I’m sure the CIA made mistakes. But to conclude that no piece of information gleaned from the interrogations ever had any value? Ever? That just didn’t ring true to me." Other critics of the committee’s investigation have said it selectively presents cases to paint the program in an unflattering light.
To be sure, unauthorized leaks by committee members have sparked bitter disputes in the past. In the late 1980s, Leahy caused a firestorm after leaking a confidential report on the Iran-Contra affair as the Senate prepared to hold hearings on the Reagan-era scandal. The ensuing controversy led to Leahy’s resignation as vice chairman of the intelligence committee in 1987 and the derogatory sobriquet "Leaky Leahy." But even that matter was handled internally, noted Metcalfe, the former Justice Department official, without the involvement of FBI investigators.