For a government worker, nothing concentrates the mind quicker — or makes you at first angry and later perhaps more cautious — than the prospect that you might go to jail for doing your job.
It’s a reminder from the conflict between the Senate Select Committee on Intelligence and the CIA over the panel’s more-than 6,300-page report on the CIA’s coercive interrogations during the administration of President George W. Bush. They included waterboarding and other torture-like methods.
From 2008 through 2012, CIA officers and contractors faced a criminal investigation by a Justice Department special prosecutor for their roles in what now is considered torturous interrogations, as well as the 2005 destruction of 92 video recordings of some of those activities.
The interrogation methods were approved by Bush and his Justice Department attorneys in 2002, 2003 and 2004. CIA attorneys did not object when told that the tapes were being destroyed, because they had been initiated to make certain that the DOJ’s rules were followed and there were operational reports covering what they showed.
In November 2010, special prosecutor John H. Durham decided there would be no prosecution for the tape shredding. In June 2011, Durham concluded that most torture and interrogation allegations should not be prosecuted, but he continued looking at two cases in which CIA prisoners died in custody. In August 2012, the DOJ said no charges would be brought in those cases.
For CIA officers who faced years of investigation, it was a repeat of past instances when a new administration took issue with previous directives and sought to punish agency personnel rather than the former top officials who had approved those activities.
Today, Senate intelligence panel staff members as well as CIA officers and perhaps contractors could be potential subjects of a preliminary DOJ criminal inquiry into the handling of the so-called “Panetta Review,” a set of controversial classified documents that fell into the hands of Senate investigators working on the panel’s probe.
Under a 2009 arrangement with the panel, the CIA agreed to provide detailed operational cables, internal e-mails and messages relative to the interrogations. They went into an electronic database for Senate staffers situated in a rented, secure office outside agency headquarters. The CIA also set up secure computers for Senate staffers in that office that could download documents the agency fed into the database. The Senate computers were walled off from the CIA system and available only to Senate investigators.
Former CIA director Leon Panetta and other past and present CIA officials say there was no Panetta Review. Instead, starting in 2009, an administrative record was to be made of documents as batches were fed into the committee’s database. Each was to list the documents transferred along with a short factual summary written by a CIA employee or contractor. In some cases, however, a mid-level supervisor added some analysis such as what the committee might conclude based on those facts — such as the use of techniques not approved by the DOJ. Those summaries were never approved or read at higher agency levels.
According to the CIA, this cataloging ended in late 2010 after CIA attorneys discussed with Durham, the special prosecutor, that creating more documents could complicate his probe.
Documents were made available to the committee database through mid-2012, but no more entries were added to what became known as the Panetta Review. The previously written listed documents and summaries were put in binders and stored away.
What’s left are questions and frustrations.
As committee Chairman Diane Feinstein (D-Calif.) put it on March 11 in a Senate floor speech, the CIA’s own Internal Panetta Review “corroborates critical information in the committee’s 6,300-page study that the CIA’s official response [provided in June 2013] either objects to, denies, minimizes, or ignores.”
That’s being investigated by the DOJ, the CIA’s inspector general and more recently the Senate’s sergeant at arms. Feinstein on March 11 said, “At some point in 2010, committee staff searching the documents that had been made available found draft versions of what is now called the ‘Internal Panetta Review.’ ” In other words, someone sent the documents to the committee database.
Feinstein added: “We have no way to determine who made the Internal Panetta Review documents available to the committee. Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistleblower.”
The CIA first heard about the documents when the committee in January 2013 requested the final version of what it referred to as the Panetta Review. CIA officials then realized that the committee already must have some of the documents. Feinstein said in her March speech that she requested in December 2013 “that the CIA provide a final and complete version of the Internal Panetta Review to the committee, as opposed to the partial document the committee currently possesses.”
The CIA inspector general had begun an investigation because apparently an unauthorized disclosure had taken place. The CIA formally turned down the committee request, claiming the documents were internal papers. The CIA in early January searched for the Panetta Review documents not only in the database provided to the committee but also the committee’s walled-off computers in the secure facility. CIA Director John Brennan on Jan. 15 told Feinstein about the search, saying it followed an allegation that a committee staffer had hacked into the CIA system to get the documents.
Feinstein was angry at the CIA search. Early in 2010 the agency was caught having twice removed hundreds of documents from the database. The CIA denied it, but the issue went to the White House, where the matter was settled and the CIA apologized.
The CIA’s inspector general is looking within the agency into how the committee obtained the documents . So is the Senate’s sergeant at arms. The DOJ has been asked to look into the matter. The CIA also has sent a crimes report to the DOJ based on committee staffers copying their version of the documents and taking it to Capitol Hill. The DOJ is not expected to act on that crimes report.
Probably not until at least the committee’s executive summary — now about 500 pages — is declassified by the White House and released.
CIA officers and contractors go through another round of investigations for what happened a decade ago. If more accountability is required, start with Bush and his vice president, Dick Cheney.
Meanwhile, the committee and the CIA continue to do business — but with a new level of tension.