Meet the little-known senator who's waging war on the CIA.
- By John HudsonJohn Hudson is a senior reporter at Foreign Policy covering diplomacy and national security., 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.
The head of the Senate Intelligence Committee declared war on the CIA Tuesday with a 45-minute speech accusing the spy agency of potentially violating the Constitution. CIA Director John Brennan launched a public defense of his agency hours later that pointed the finger squarely back at Congress. Lost in the ensuing he-said, she-said melee was the little-known Colorado lawmaker responsible for sparking the fight in the first place: freshman Democratic Senator Mark Udall.
Depending on who you ask, Udall is either a principled progressive committed to overseeing the intelligence community or a vulnerable politician desperate for an attention-grabbing issue that could boost his chances for re-election. What’s beyond doubt is his oversized role in sparking the historic showdown between the CIA and its Senate overseers.
"He’s beating this drum almost to death," said a Congressional aide who’s tracked Udall closely. "And you know what? He’s getting traction."
The source of the bitter dispute is a classified 6,300 page report by the committee said to be highly critical of the brutal interrogation tactics the CIA employed after the terrorist attacks of September, 11, 2001. In order to research the program, committee staffers used computers provided by the CIA in a secure facility in northern Virginia. The CIA believes that Senate staff working inside the facility 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.
But Democratic senators on the committee say the documents vindicate their own investigation, which concludes that the CIA techniques amounted to torture and 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.
But the most unusual aspect of the committee’s war with the CIA is the public way in which it’s being waged. That public exposure is largely due to Udall’s concerted efforts, which Republicans on the committee say are highly inappropriate.
"I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly," Sen. Richard Burr of North Carolina , the most senior Republican on the committee behind Sen. Saxby Chambliss, told reporters last week.
Although much of the public is just catching up to the issue now, Udall’s role in bringing the dispute to light dates back to August 2013. At the time, Udall submitted a lengthy set of written questions to Stephen Preston, who had been the CIA general counsel since 2009 and had recently been nominated to be the top lawyer at the Pentagon. Udall wanted answers about the CIA’s decision not to provide investigators with several thousand agency documents that had been deemed "responsive" — or relevant — to their inquiry. Without those answers, Udall pledged to block Preston’s confirmation to his Pentagon post.
In response to Udall’s questions, Preston said that some documents were potentially subject to a claim of executive privilege, which meant the CIA wouldn’t have to share them with investigators. Those documents, which represented a small portion of the more than 6 million that were turned over, had been set aside for further review of potential privilege claims. But the CIA left that decision up to the White House, Preston said, and did not get "substantively involved" in discussions about what to do with the material.
The exchange between Preston and Udall raised a central and still unanswered question about the push-and-pull over the documents: To what extent did the White House direct the CIA to remove documents using claims of executive privilege, and did that represent a level of improper interference in the investigation? To date, President Obama hasn’t exerted a claim of executive privilege to withhold documents from the committee staff. Udall wanted to know if, absent such a claim, the CIA felt it had the right to withhold the material. Preston deftly avoided answering by saying, in effect, that was a decision for the White House to make, and not the CIA.
Either way, those answers never had to see the light of day, but were made public after the exchange occurred. Perhaps most notably, a copy was obtained by The New Yorker’s Jane Mayer, a respected journalist who has written a number of highly-critical pieces about the Bush administration’s interrogation program in the past. "Glimpses of friction between Congress and the C.I.A. are visible," wrote Mayer in October 2013. The article included an interview with Udall criticizing the CIA’s stonewalling of the study. "At this point, I do not believe the C.I.A. has sufficiently acknowledged the flaws that the committee has meticulously detailed with thirty-five-thousand footnotes in six-thousand-three-hundred pages," Udall said in the piece.
The public disclosure of an internal rift between the committee and the agency had some impact. But not as much impact as Udall’s next move.
During an Intelligence Committee hearing on December 17, Udall revealed the existence of an internal CIA report that analyzed the interrogation records being provided to Senate investigators. Udall said the report was initiated several years ago and "is consistent with the Intelligence Committee’s report" and "conflicts with the official CIA response to the committee’s report."
At the time of the hearing, Udall’s cryptic references to the report surprised and confused a number of reporters attending the event, but were quickly reported out by The New York Times’ Mark Mazzetti the day of the hearing. "The Senate Intelligence Committee has asked the C.I.A. for an internal study done by the agency that lawmakers believe is broadly critical of the C.I.A.’s detention and interrogation program but was withheld from congressional oversight committees," read the opening sentence of the Times story.
It has since been revealed that the "internal study" in question was ordered by former CIA Director Leon Panetta. Udall, and other committee Democrats including Feinstein, say the Panetta review vindicates their interrogation report. But not everyone agrees.
In an interview with Politico earlier this month, Panetta said the review was mainly an analysis of records being given to Senate investigators. It does not say whether or not the enhanced interrogation program was successful. "Basically, it was just looking at the material that was being provided to the Hill. There wasn’t any kind of formal study. They call it ‘the Panetta review,’ but it wasn’t a formal study," he said.
This public airing of grievances set the committee and the agency on a collision course that culminated in the CIA referring criminal allegations to the Justice Department. Feinstein, in her extraordinary 45-minute floor speech on Thursday, accused the CIA of intimidating Senate staffers and possibly breaking the law. "I have grave concerns that the CIA search may well have violated the separation of powers principles," she said. "The CIA just went and searched the committee’s computers."
Given Feinstein’s reputation as a staunch supporter of the CIA, some have wondered why she didn’t keep the dispute away from public view. But Udall’s vigilance on the issue may explain her inability to stifle the brawl.
"Feinstein never had a chance at containing this," said a Congressional aide. "There was a particular person who wanted to capitalize on this theme. And the only way to capitalize was to make the issue public."
The aide did not question the sincerity of Udall’s beliefs, but said election-year politics may have played a role. "You’ve got to understand Colorado politics," he said. "If you go out and you look at the local papers and read about the town hall meetings, you’ll see what Udall’s doing: He is beating this drum almost to death."
A spokesman for Udall said the idea that politics had anything to do with his oversight of the Intelligence Community was preposterous.
"He’s been at this well before he ever had to stand for re-election," said James Owens. "It just so happens to be something that Coloradans agree with very broadly, that democracy depends on this aggressive oversight."
In recent months, Udall had seen his comfortable lead over a field of Republican candidates evaporate with the surprise entrance of GOP Rep. Cory Gardner into the race. Democrats in Colorado are seen as vulnerable to claims of overreach, following the passage of controversial new gun laws and a general malaise over Obama’s Affordable Care Act.
"He’s in big trouble," Floyd Ciruli, an independent pollster in Colorado, told Foreign Policy. "He’s getting killed by Obamacare."
Indeed, Udall’s quest could excite liberals in Boulder and Denver, bringing larger numbers of his most important constituency to the polls. On Wednesday, the Denver Post editorial board applauded the senator’s efforts to bring transparency to the CIA. "Udall has been a leading supporter of declassifying as much as possible of the panel’s report," wrote the paper. "If the Senate and White House fail to release the document … it will only solidify growing public skepticism regarding proper oversight of America’s clandestine activities."
The congressional aide said the Colorado electorate is uniquely amenable to Udall’s initiative. "The state isn’t as monolithic as people think," said the Congressional aide. "To the liberals, CIA torture incenses them. To libertarian Republicans, it incenses them too. It’s a smart way to play it."
Others aren’t so sure. "This isn’t a slam dunk issue in my opinion," said Ciruli. "Having a report on torture is nice, but it’s just not in front of people at the moment. It’s more of Bush’s problem, really."