Finalist: McClatchy Newspapers, by Marisa Taylor, Jonathan Landay and Ali Watkins
For timely coverage of the Senate Intelligence Committee's report on CIA torture, demonstrating initiative and perseverance in overcoming government efforts to hide the details.
Nominated Work
March 4, 2014
By Jonathan S. Landay, Ali Watkins and Marisa Taylor
The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.
The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.
The development marks an unprecedented breakdown in relations between the CIA and its congressional overseers amid an extraordinary closed-door battle over the 6,300-page report on the agency’s use of waterboarding and harsh interrogation techniques on suspected terrorists held in secret overseas prisons. The report is said to be a searing indictment of the program. The CIA has disputed some of the reports findings.
White House officials have closely tracked the bitter struggle, a McClatchy investigation has found. But they haven’t directly intervened, perhaps because they are embroiled in their own feud with the committee, resisting surrendering top-secret documents that the CIA asserted were covered by executive privilege and sent to the White House.
McClatchy’s findings are based on information found in official documents and provided by people with knowledge of the dispute being fought in the seventh-floor executive offices of the CIA’s headquarters in Langley, Va., and the committee’s high-security work spaces on Capitol Hill.
The people who spoke to McClatchy asked not to be identified because the feud involves highly classified matters and carries enormous consequences for congressional oversight over the executive branch.
The CIA and the committee declined to comment.
Caitlin Hayden, a spokeswoman for the National Security Council, declined to discuss the matter and referred questions to the CIA and the Justice Department.
In question now is whether any part of the committee’s report, which took some four years to compose and cost $40 million, will ever see the light of day.
The report details how the CIA misled the Bush administration and Congress about the use of interrogation techniques that many experts consider torture, according to public statements by committee members. It also shows, members have said, how the techniques didn’t provide the intelligence that led the CIA to the hideout in Pakistan where Osama bin Laden was killed in a 2011 raid by Navy SEALs.
The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.
Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 29 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”
Brennan replied that he’d have to get back to Wyden after looking into “what the act actually calls for and it’s applicability to CIA’s authorities.”
The law makes it a criminal act for someone to intentionally access a computer without authorization or to go beyond what they’re allowed to access.
People familiar with the issue said it wasn’t clear whether the monitoring violated any law or administrative regulations.
Sen. Mark Udall, D-Colo., who has led calls for the CIA to allow the release of the report, also appeared to be referring to the monitoring in a letter he sent Tuesday to President Barack Obama.
“As you are aware, the CIA has recently taken unprecedented action against the committee in relation to the internal CIA review and I find these actions to be incredibly troubling for the committee’s oversight responsibilities and for our democracy,” Udall wrote. “It is essential that the committee be able to do its oversight work – consistent with our constitutional principle of the separation of powers – without the CIA posing impediments or obstacles as it is today.”
Udall also called on Obama to strip the CIA of control over how much of the Senate report should be made public. The report remains classified nearly 15 months after the panel approved the document and turned it over to the agency for vetting.
“It is my belief that the declassification of the Committee Study is of paramount importance and that decisions about what should or should not be declassified regarding this issue should not be delegated to the CIA, but directly handled by the White House,” Udall wrote.
Udall has led a handful of lawmakers in pressing for the release of the report’s conclusions, which committee members have publicly said show that the CIA misled the Bush administration and Congress about the intelligence gained from using water-boarding and other interrogation techniques. On Tuesday, Hayden said “For some time, the White House has made clear to the chairman of the Senate Select Committee on Intelligence that a summary of the findings and conclusions of the final report should be declassified, with any appropriate redactions necessary to protect national security.”
The conflict over the committee’s investigation heightened late last year when the committee discovered that a CIA internal review confirming some of the committee’s findings had been withheld from Senate investigators.
In his letter to Obama, Udall said the internal report not only corroborates aspects of the committee’s investigation, but “acknowledges significant mistakes and errors made during the course of the CIA program.”
“It is vital that we understand how and why the content of the CIA’s internal review contradicts the CIA’s official June 27, 2013, response to the Committee,” he added.
The agency has downplayed the importance of the document, characterizing it as a compilation of summaries of classified documents, rather than an analytical report.
CORRECTION: An earlier version of this story contained an incorrect date for the hearing at which Sen. Wyden asked CIA director Brennan whether federal computer fraud law applied to the CIA.
March 6, 2014
By Jonathan S. Landay, Ali Watkins and Marisa Taylor
The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.
The FBI’s involvement takes to a new level an extraordinary behind-the-scenes battle over the report that has plunged relations between the agency and its congressional overseers to their iciest in decades. The dispute also has intensified uncertainty about how much of the committee’s four-year-long study will ever be made public.
The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.
The matter is now with the FBI, said one federal official. Like all of those who spoke to McClatchy, the federal official requested anonymity because the case is highly sensitive, closely guarded and could potentially involve criminal charges.
The investigation request by the CIA general counsel’s office is one of two criminal referrals sent to the Justice Department in connection with the committee’s 6,300-page report, which remains unreleased nearly 15 months after the panel voted to approve its final draft, according to those familiar with the case.
The second was made by CIA Inspector General David Buckley, they said. It relates to the monitoring by the agency of computers that the committee staff used to review millions of classified documents in the electronic reading room set up inside a secret CIA facility in Northern Virginia, they said.
It was unclear when precisely the referrals were made or when the FBI became involved or whether the bureau investigation also includes the computer monitoring.
The FBI and the CIA declined to comment. The committee referred calls to the Justice Department, which also declined to comment.
The committee’s $40 million classified study concluded that little valuable intelligence was obtained by the CIA’s use during the Bush administration of waterboarding and other harsh interrogation methods on suspected terrorists in “black site” prisons in Europe, Africa, Asia and the Middle East, according to lawmakers who’ve read it.
The study, the lawmakers have said, also found that the CIA misled the White House, Congress and the public about the usefulness of the information gained from the techniques, which many experts and governments condemn as torture. The CIA and former Bush administration officials said the methods were legal. The program ended in 2006.
The committee approved a final draft of its report in December 2012 and submitted it to the CIA for an official response and recommendations on what portions should be withheld from the public. The agency submitted its response in June 2013 and has resisted its release, citing inaccuracies in some of the committee’s conclusions.
As reported earlier this week by McClatchy, the dispute escalated last fall when committee staff discovered what lawmakers have characterized as a draft of a top-secret internal CIA review ordered by former CIA Director Leon Panetta that broadly corroborated their report’s findings, according to one of the knowledgeable people. They found the draft in a database into which documents were deposited after being vetted by a team of CIA officials and contractors.
The staff then realized that the draft review showed that CIA leadership misled the panel in submitting an official response that disputed some report conclusions, the knowledgeable person said.
The staff printed out the draft, walked the document out of the CIA facility and took it to Capitol Hill, an act that the CIA regarded as the unauthorized removal of classified material and a violation of a user agreement between the sides, according to knowledgeable people.
The CIA confronted the committee in January with details of the unauthorized removal. The staff then determined that the CIA had recorded their use of the computers in the high-security research room that also allegedly violated the user agreement, McClatchy learned.
The CIA has denied that it conducted an internal review, saying that the group assembled at Panetta direction only produced summaries of the documents deposited in the database for use by the committee staff, and that it didn’t compile an analytical report.
Sean Cockeram of the Washington Bureau contributed.
Correction: This article originally misstated the date that the Senate Intelligence Committee approved a final draft of its report.
March 7, 2014
By Jonathan S. Landay, Ali Watkins and Marisa Taylor
Democratic staffers of the Senate Intelligence Committee obtained classified documents at the center of a bitter struggle with the CIA some three years before the agency determined that the materials had been spirited out of a secret facility and demanded their return, according to U.S. officials.
The officials cited the timing of the discovery in contending that the CIA didn’t actively monitor computers used by the staffers to compile a report on the agency’s secret detention and interrogation program, but instead had to go back and scour security logs kept on all classified systems.
The alleged unauthorized removal of the documents, which is being investigated by the FBI, triggered the unprecedented battle over the authority of the committee, which was created in 1976 to oversee U.S. intelligence organizations in the wake of a series of domestic spying scandals. And what also remains unknown is what secrets about the controversial interrogation program might be contained in the documents now in dispute.
The CIA's refusal to provide the documents to the committee, several Democratic senators contend, is evidence that the agency has been trying to stymie the release of a potentially damning report.
Some people familiar with the matter have defended the committee staffers’ action as arguably within the legal and constitutional authority of the CIA’s congressional overseers, and they questioned the decision by the agency’s Office of General Counsel to seek a criminal investigation.
“A concern is the appearance that DOJ (the Department of Justice) could be used as a way to intimidate committee members into being less aggressive,” said a congressional attorney who has closely followed the controversy. “The practical effect is everyone on the committee begins reconsidering how much pressure they should bring to bear on the agency.”
The congressional attorney isn’t on the Intelligence Committee and requested anonymity because of the sensitivity of the matter.
Separately, the CIA Inspector General’s Office asked the Justice Department to open a criminal investigation into what committee staffers viewed as the unauthorized monitoring of the computers they used inside the CIA facility in which they reviewed the highly classified materials underpinning their report.
It couldn’t be learned if such a probe is underway. The Justice Department, the FBI, the CIA and the committee declined to comment.
The tug-of-war over the documents has stoked considerable uncertainty over whether the public will ever get to read any parts of the top-secret 6,300-page report on the CIA’s use during the Bush administration of waterboarding and other harsh interrogation methods on suspected terrorists held in secret overseas “black site” prisons. The program was ended in 2006.
The study broadly concluded that the techniques – which many experts and governments condemn as torture _ produced little valuable intelligence, according to statements by lawmakers who’ve read the findings.
The study also determined that the agency misled the White House, Congress and the public about the usefulness of the information.
The CIA and the Bush administration hold that the techniques were legal, and the CIA disputed some of the findings in the official response it submitted to the committee in June. President Barack Obama has called waterboarding “torture.”
Under an agreement with the CIA, the Intelligence Committee staff was required to access millions of emails, reports, operational cables and other top-secret documents related to the program in an electronic reading room inside a secret agency facility in Northern Virginia.
The materials were first reviewed by a team of CIA officials and contractors. They logged and dumped materials that they’d cleared on the other side of a firewall in a database accessible by the committee staff, explained a U.S. official, who requested anonymity because he wasn’t authorized to discuss the matter on the record.
Former CIA Director Leon Panetta convened a separate team of CIA officials to review and summarize all of the documents that had been provided to the Senate after finding that “there wasn’t a good accounting” of the actual contents of the material, said the U.S. official.
The creation of the summaries stopped in 2010 after Attorney General Eric Holder appointed a special counsel to determine whether there were grounds for any prosecutions related to the detention and interrogation program, the official said. No criminal cases were ever launched.
As early as 2010, the staffers somehow gained what the U.S. official described as unauthorized access to the top-secret Panetta review summaries that were stored on a computer network on the CIA’s side of the firewall. It still hasn’t been determined how the breach occurred.
“They found a way to get ahold of these documents,” said the U.S. official. “That’s some troubling stuff.”
The materials were stamped pre-decisional, draft and deliberative, markings that showed that they were beyond the staff’s authority to access, said the U.S. official.
At some point, the staffers printed out the documents, walked them out of the facility and took them to the committee’s high-security offices in the Hart Senate Office Building on Capitol Hill, according to four U.S. officials.
In doing so, the first U.S. official asserted, the staffers violated an agreement under which they were required to clear with an agency official any printed document they wanted to remove from the facility.
They also breached a provision limiting their research to documents produced inside a specific range of dates that the committee had agreed to, he contended.
In November, the U.S. official said, the CIA received a letter from the committee chairwoman, Sen. Dianne Feinstein, D-Calif., officially requesting the Panetta review documents.
Nobody in senior management knew at first what Feinstein was referring to, said the U.S. official. Eventually, someone identified them as the summaries of documents provided to the committee.
In the meantime, the agency received more letters demanding a copy of the review. At a hearing in December, Sen. Mark Udall, D-Colo., disclosed the review’s existence without saying how he’d learned of it. He contended that the review broadly corroborated the committee’s findings, and he questioned why it was dramatically different from the CIA’s official response.
It was only after Udall wrote to Obama in January to demand that the president order the Panetta review be turned over to the committee that the CIA examined the computers’ “audit logs” and confirmed that they had accessed and printed out the documents from the CIA’s side of the firewall, U.S. officials said.
“It eventually becomes apparent that they had the documents,” said the first U.S. official. “It was the majority staff, not minority. It was just the Democrats.”
The U.S. officials disputed charges that the CIA spied on the staff’s computers. As in other federal departments, the agency is required by presidential order to maintain systems that record how each of its computers is operated, a safeguard used when security breaches are suspected. The committee staff initially was told about the audit system in a security briefing and raised no objection, the officials said.
CIA Director John Brennan confronted Feinstein and her vice chairman, Sen. Saxby Chambliss, R-Ga., in early January with what the CIA contended was a serious security violation, and they accepted his offer to conduct a joint investigation into how it had occurred, U.S. officials said. Feinstein, however, then changed her mind.
A CIA demand for the return of the documents has gone unheeded, the first U.S. official said.
The congressional attorney was skeptical that the breach represented a significant criminal violation.
“What’s more important in this dispute?” asked the congressional attorney. “The possible violation of a user agreement or preserving possible evidence of an obstruction of the committee’s investigation?”
March 11, 2014
By Ali Watkins, Jonathan S. Landay and Marisa Taylor
The chairwoman of the Senate Select Committee on Intelligence charged Tuesday that the CIA may have broken the law and violated the Constitution by secretly infiltrating computers used by her staff to assemble a scathing report on the spy agency’s now-defunct detention and interrogation program.
“The CIA just went and searched the committee’s computers,” said Sen. Dianne Feinstein, D-Calif.
Feinstein unleashed her stunning charges in an address on the Senate floor that lifted the veil on an extraordinary power struggle over the release of the report that has been raging behind the scenes for months between the CIA and the panel, created in 1976 to oversee U.S. intelligence organizations after a series of domestic spying scandals.
“The CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution,” Feinstein said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.”
In addition, she said CIA intrusions into her staff’s computers also may have breached the Fourth Amendment’s bar on illegal searches, a law prohibiting computer fraud and a 1981 presidential order that greatly restricts the agency’s authority to spy on American citizens.
CIA Director John Brennan denied Feinstein’s allegations after a speech to the Council on Foreign Relations marking his first year at the helm of the spy agency.
“Nothing could be further from the truth. I mean, we wouldn’t do that,” Brennan said. “That’s just beyond . . . the scope of reason in terms of what we’d do.”
Denouncing the CIA’s use of waterboarding and other harsh interrogation techniques during the Bush administration as an “un-American, brutal program,” Feinstein said the resolution of the battle would determine the ability of her committee to be an effective watchdog over the CIA and other U.S. intelligence agencies.
“The recent actions that I have just laid out make this a defining moment for the oversight (powers) of our Intelligence Committee,” Feinstein said. “How this will be resolved will show whether the Intelligence Committee will be effective in monitoring and investigating our nation’s intelligence activities.”
Many experts, including former U.S. military commanders and officials, have condemned as torture the use of the harsh techniques in the interrogations of suspected terrorists in secret CIA “black site” prisons overseas. The Bush administration and the agency contend the methods were legal, although it has emerged that the CIA used some techniques before the program underwent a Justice Department legal review.
Brennan denied that the CIA was trying to impede the release of the committee study, contending that 15 months after the panel approved the report, it still hasn’t been given to the agency to vet before a public release.
“We are not in any way, shape or form trying to thwart this report’s . . . release,” he said.
In a Jan. 27 letter to Feinstein, Brennan acknowledged that the CIA conducted “a limited review” of the staff computers in response to a “breach or vulnerability” in an agency computer network that allowed her staff to obtain documents that he contended they were not authorized to have.
The staff’s access to the documents “raises significant concerns about the integrity of a highly classified computer system and whether the protocols developed between the (committee) and the CIA in relation to CIA files are being followed,” Brennan wrote.
The letter was attached to an email _ both of which were obtained by McClatchy _ that Brennan sent on Tuesday to the CIA workforce in an apparent move to explain the agency’s side of the scandal.
“The CIA wants to put the rendition, detention and interrogation chapter of its history behind it,” he said in the email.
White House spokesman Jay Carney declined to discuss the dispute in any detail.
“What I can say is that you saw the CIA director say today that if there was any inappropriate activity by CIA, he would, of course, want to get to the bottom of it, and certainly the president would agree with that,” Carney said.
In her speech, Feinstein contended that on several occasions beginning in 2010, the CIA blocked access to separate sets of documents and then removed them after they’d already been obtained by the committee staff.
In the first instances _ in February and mid-May 2010 _ CIA officials misled the committee in claiming that the White House had ordered them to block her staff’s access to two batches of documents totaling more than 900 pages, she said.
“When the committee approached the White House, the White House denied giving the CIA any such order,” she said.
Feinstein leveled her charges a week after McClatchy first reported the allegations that the CIA secretly monitored computers used in researching and compiling the committee’s 6,300-page study of the agency’s detention and interrogation program at a secret CIA-leased facility in Northern Virginia.
In a separate report also confirmed by Feinstein, McClatchy disclosed that Democratic staffers printed out and took back to their secure space on Capitol Hill a copy of an internal CIA review. She and other Democratic senators assert the internal review proves that the CIA misled the committee in disputing key findings of its study.
“To say the least, this is puzzling,” said Feinstein. “How can the CIA’s official response to our study stand factually in conflict with its own internal review?”
Feinstein said that CIA Inspector General David Buckley had referred the CIA’s computer searches to the Justice Department “given the possibility of a criminal violation by CIA personnel.”
Shortly after the referral was made, she said, the acting CIA general counsel filed a “crime report” with the Justice Department “concerning the committee’s staff’s actions,” which she decried as a “potential effort” at intimidation.
She went on to point out that from mid-2004 until President George W. Bush halted the interrogation program in 2009, the same CIA lawyer was the main legal adviser to the agency unit that oversaw the program.
Feinstein apparently was referring to the agency’s senior deputy general counsel, Robert Eatinger. The CIA declined to confirm the identity of the individual to whom Feinstein was referring.
The CIA lawyer “is mentioned by name more than 1,600 times in our study, and now this individual is sending a crimes report to the Department of Justice,” she said. “The acting general counsel himself provided inaccurate information to the Department of Justice about the program.”
Feinstein defended her staff, saying they’d broken no laws in printing out and taking the internal CIA review out of the CIA facility and placing it in a safe in their high-security office in at the Senate.
“The staff members who have been working on this study . . . have devoted years of their lives to it, wading through the horrible details of the CIA program that never, never, never should have existed,” she said.
The study, which cost $40 million, took four years to complete and entailed a review of 6.2 million pages of top-secret CIA operational cables, reports and other documents, concluded that the agency’s use of harsh interrogation techniques produced very little intelligence of any value, according to lawmakers who’ve read it.
The program didn’t reveal the information that enabled the CIA to pinpoint Osama bin Laden’s suspected hideout in Pakistan at which the al Qaida leader was killed by Navy SEALs in May 2011, they’ve said.
Moreover, the study found that the agency misled Congress, the Bush administration and the public about the usefulness of the interrogation techniques, they’ve said.
Under an arrangement with the CIA, the committee staff was provided with “a stand-alone computer system” to review CIA-approved documents to which only agency technicians would have access. The technicians were barred from sharing any information from the network with other CIA officials without the committee’s permission, she said.
The blocking of the staff’s access in February and May 2010 to documents to which they’d already been given access constituted the first of what Feinstein said were several secret searches of their computers by the CIA.
The matter was settled when the committee received assurances from the CIA and the White House that “there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee,” she said.
Later in 2010, the staff found a draft summary of the internal review, which had been ordered by then-CIA Director Leon Panetta, using a search engine provided by the CIA to scour a database into which contractors dumped millions of top-secret documents after reviewing them numerous times to ensure that they were related to the study and weren’t covered by executive privilege, she said.
How the draft summary of the review got into the database remains unknown, although Feinstein suggested it may have been put there by a whistleblower.
She denied reports in some publications that quoted unidentified U.S. officials who suggested that committee staffers “hacked” through a firewall into a CIA network to obtain the draft Panetta review. She also rejected contentions that the committee wasn’t entitled to some parts of the draft even though they were marked “privileged” and “deliberative.”
The Senate’s top legal adviser determined that “Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties,” she said. “So we believe we had every right to review and keep the documents.”
The Panetta review consisted of summaries of the documents provided to the committee compiled by a separate team of CIA officials, some of whom also included their own analysis of the contents of the materials.
“What was unique and interesting about the internal documents was not their classification level but rather their analysis and acknowledgment of significant CIA wrongdoing,” Feinstein said.
Panetta ordered the review after determining that no records were being kept of the contents of the documents, U.S. officials have said. They’ve denied that the review represented a formal examination of the interrogation program, downplayed its importance, and said that the reviewers’ analyses were personal observations that weren’t subjected to the agency’s formal evaluation procedures.
The staff decided to print out the draft Panetta review and take it to Capitol Hill because the CIA had “previously withheld and destroyed information about its detention and interrogation program,” Feinstein said, referring to the agency’s destruction over the objections of the Bush administration of videotapes of interrogation sessions.
“There was a need to preserve and protect the Panetta review in the committee’s own secure spaces,” she said. “The relocation of the internal Panetta review was lawful.”
On Jan. 15, she said, Brennan requested an emergency meeting with her and Sen. Saxby Chambliss, R-Ga., the committee vice chairman, to inform them that “without prior notification or approval, CIA personnel had conducted a search – that was John Brennan’s word – of the committee’s computers.”
In his letter to Feinstein, Brennan said that the CIA conducted its “limited review” of the committee’s computers after Feinstein wrote a Nov. 26, 2013, letter to the CIA asking for “several summary documents” from an “internal review” of the interrogation program.
Sen. Mark Udall, D-Colo., then revealed the existence of the Panetta review documents at a public hearing at which he also demanded the material, while committee staffers made statements suggesting they already had the documents, Brennan wrote.
The CIA didn’t find the materials listed among the documents it provided to the committee staff nor were they on the CIA’s side of a shared database.
“Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review” to determine if the Panetta review material was on the committee’s segregated network, he wrote.
CIA technicians scoured computer logs restricted to only the Panetta review material, Brennan said, and the scan revealed that documents Feinstein and Udall were seeking “appeared already” to be on the committee’s network.
In their Jan. 15 meeting, he wrote, Feinstein said that she was “not aware that the committee staff already had access to the material.”
Feinstein was roundly praised by Democratic senators and prominent human rights and civil liberties groups for her speech. It was a marked contrast to criticism of her defense of the National Security Agency’s bulk collection of Americans’ communications data.
“I commend Chairman Feinstein for speaking so forcefully in defence of the indispensable role that Congress plays under our Constitution in overseeing the executive branch and in particular the intelligence community,” said Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee. “Chairman Feinstein described a troubling pattern of interference and intimidation by the CIA that raises serious questions about possible violations of the Constitution and our criminal laws.”
Lesley Clark and Michael Doyle of the Washington Bureau contributed.
March 12, 2014
By Jonathan S. Landay, Ali Watkins and Marisa Taylor
The White House has been withholding for five years more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation into the now-defunct CIA detention and interrogation program, even though President Barack Obama hasn’t exercised a claim of executive privilege.
In contrast to public assertions that it supports the committee’s work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records, a McClatchy investigation has found.
The significance of the materials couldn’t be learned. But the administration’s refusal to turn them over or to agree to any compromise raises questions about what they would reveal about the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists in secret overseas prisons.
The dispute indicates that the White House is more involved than it has acknowledged in the unprecedented power struggle between the committee and the CIA, which has triggered charges that the agency searched the panel’s computers without authorization and has led to requests to the Justice Department for criminal investigations of CIA personnel and Senate aides.
“These documents certainly raise the specter that the White House has been involved in stonewalling the investigation,” said Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School.
The committee and the CIA declined to comment.
In a statement to McClatchy, the White House confirmed that “a small percentage” of the 6.2 million pages of documents provided to the committee were “set aside because they raise executive branch confidentiality interests.”
The White House also said that it had worked closely with the committee “to ensure access to the information necessary to review the CIA’s former program.”
Speaking to reporters earlier during a White House event, Obama said that the administration has worked with the committee to ensure that its study is “well informed” and that he was committed to seeing the report declassified once a final version is completed. He said it wouldn’t be proper for him to comment directly on the battle between the CIA and the committee, except to say that CIA Director John Brennan had referred the issues to the “appropriate authorities and they are looking into it.”
The Democrat-controlled committee has largely kept silent about the tussle with the White House, even as some members have decried what they contend has been the CIA’s refusal to surrender key materials on the agency’s use under the Bush administration of interrogation methods denounced by the panel chairwoman as “un-American” and “brutal.”
The chairwoman, Sen. Dianne Feinstein of California, made no mention of the White House documents during a blistering floor speech Tuesday in which she charged that the CIA may have undermined the Constitution and violated the law by searching computers used by her staff to compile the study. Brennan has denied her allegations and the White House has expressed continued confidence in his leadership of the CIA.
In question are some 9,400 documents that came to the committee’s attention in 2009, McClatchy has learned. It’s unclear whether the CIA first gave the committee staff access to the materials before the White House withheld them.
Obama, however, still hasn’t formally decreed that the documents are protected by executive privilege, McClatchy learned. Although the doctrine isn’t mentioned explicitly in the Constitution, the Supreme Court in 1974 recognized a limited power by the White House to withhold certain communications between high officials and close aides who advise and assist them.
The withholding of the documents “may not be a smoking gun” proving White House obstructionism, said Goitein, a former Senate Judiciary Committee legal adviser.
Among the other explanations: The White House might have determined that the documents are not relevant to the inquiry or that they are indeed covered by executive privilege but that the president has not yet been forced to assert the claim, she said.
“The most nefarious explanation is that they are not privileged and the White House simply doesn’t want to hand them over,” Goitein said. “Executive privilege is generally asserted after negotiations and brinksmanship behind the scenes. People put on paper what they want to be formalized, and these negotiations by their very nature are very informal.”
The committee, the CIA and the White House have held periodic talks on the materials since 2009. Their apparent failure to resolve the standoff prompted Feinstein to write several letters last year to Obama’s chief legal adviser, Kathryn Ruemmler, seeking a resolution, McClatchy has learned.
A White House official, who declined to be further identified as a matter of administration policy, said that Ruemmler responded to Feinstein’s letters, although information obtained by McClatchy indicated that she hadn’t.
It was not known if the materials came up during a visit that Ruemmler and White House Chief of Staff Denis McDonough paid to Feinstein and the committee’s vice chairman, Sen. Saxby Chambliss, R-Ga., on Tuesday after Feinstein delivered her speech.
To date, the most explicit public reference to documents being withheld by the White House appears to have been made last August by Sen. Mark Udall, D-Colo., an Intelligence Committee member who has led calls for a full disclosure of the CIA interrogation program.
In written questions that he submitted for the confirmation process of former CIA General Counsel Stephen W. Preston to be the Pentagon’s top lawyer, Udall asked Preston what role he’d played in an agency decision to withdraw documents that initially had been provided to the committee staff.
“During the CIA’s document production of more than six million pages of records, the CIA removed several thousand CIA documents that the CIA believed could be subject to executive privilege claims by the president,” Udall wrote. “While the documents represent an admittedly small percentage of the total number of records produced, the documents – deemed responsive – have nonetheless not been provided to the committee.”
Preston responded that “a small percentage of the total number of documents was set aside for further review. The agency (CIA) has deferred to the White House and has not been substantially involved in subsequent discussions about the disposition of those documents.”
In a related episode in 2010 as described by Feinstein in her speech on Tuesday, the committee staff discovered that it was no longer able to access hundreds of documents that it previously had been able to read.
“This was done without the knowledge or approval of committee members or staff and in violation of our written agreements,” she said.
CIA personnel initially accused computer technicians of removing the documents and then asserted that they were pulled on the White House’s orders, Feinstein said. The White House denied issuing such orders, she said, and “the matter was resolved” with renewed administration and CIA pledges that there would be no further intrusions into the staff’s database.
Feinstein, however, did not say what happened to the documents.
The records being held by the White House are separate from materials generated by an internal CIA review of some 6.2 million pages of operational cables, emails and other top-secret documents made accessible to committee staff in a secret CIA electronic reading room in Northern Virginia. The committee approved a final draft of the $40 million, 6,300-page study in December 2012.
In his first significant comments on the scandal, Chambliss took to the Senate floor late Wednesday afternoon to launch an apparent counterattack on Feinstein’s speech.
“Although people speak as though we know all the pertinent facts surrounding this matter, the truth is, we do not,” said Chambliss, who pointed out that the committee’s Republican staff didn’t participate in investigating the detention and interrogation program.
“We do not have the actual facts concerning the CIA’s alleged actions or all of the specific details about the actions by the committee staff regarding the draft of what is now referred to as the Panetta internal document,” Chambliss said. “Both parties have made allegations against one another, and even speculated (on) each other’s actions, but there are still a lot of unanswered questions that must be addressed.”
“No forensics have been run on the CIA computers . . . at the CIA facility to know what actually happened either regarding the alleged CIA search or the circumstances under which the committee came into possession of the Panetta internal review document.”
Lesley Clark and William Douglas of the Washington Bureau contributed.
April 11, 2014
By Ali Watkins, Jonathan S. Landay and Marisa Taylor
A still-secret Senate Intelligence Committee report calls into question the legal foundation of the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists, a finding that challenges the key defense on which the agency and the Bush administration relied in arguing that the methods didn’t constitute torture.
The report also found that the spy agency failed to keep an accurate account of the number of individuals it held, and that it issued erroneous claims about how many it detained and subjected to the controversial interrogation methods. The CIA has said that about 30 detainees underwent the so-called enhanced interrogation techniques.
The CIA’s claim “is BS,” said a former U.S. official familiar with evidence underpinning the report, who asked not to be identified because the matter is still classified. “They are trying to minimize the damage. They are trying to say it was a very targeted program, but that’s not the case.”
The findings are among the report’s 20 main conclusions. Taken together, they paint a picture of an intelligence agency that seemed intent on evading or misleading nearly all of its oversight mechanisms throughout the program, which was launched under the Bush administration after the Sept. 11, 2001, attacks and ran until 2006.
Some of the report’s other conclusions, which were obtained by McClatchy, include:
_ The CIA used interrogation methods that weren’t approved by the Justice Department or CIA headquarters.
_ The agency impeded effective White House oversight and decision-making regarding the program.
_ The CIA actively evaded or impeded congressional oversight of the program.
_ The agency hindered oversight of the program by its own Inspector General’s Office.
The 6,300-page report is the culmination of a four-year, $40 million investigation into the detention and interrogation program by the Democrat-led committee. A final draft was approved in December 2012, but it has undergone revisions. The panel voted 11-3 on April 3 to send the report’s 480-page executive summary, the findings and conclusions to the executive branch for declassification prior to public release.
Asked to comment on the findings, CIA spokesman Dean Boyd said: “Given the report remains classified, we are unable to comment. As we have stated previously, the CIA, in consultation with other agencies, will carry out an expeditious classification review of those portions of the final SSCI report submitted to the executive branch for review.”
Senate Intelligence Committee Chairwoman Dianne Feinstein also declined to comment except to say: “If someone distributed any part of this classified report, they broke the law and should be prosecuted.”
The investigation determined that the program produced very little intelligence of value and that the CIA misled the Bush White House, the Congress and the public about the effectiveness of the interrogation techniques, committee members have said.
The techniques included waterboarding, which produces a sensation of drowning, stress positions, sleep deprivation for up to 11 days at a time, confinement in a cramped box, slaps and slamming detainees into walls. The CIA held detainees in secret “black site” prisons overseas and abducted others who it turned over to foreign governments for interrogation.
The CIA, which contends that it gained intelligence from the program that helped identify al Qaida terrorists and averted plots against the United States, agreed with some of the report’s findings but disputed other conclusions in an official response sent to the committee in June 2013.
The report has been embroiled in a public furor since Feinstein, D-Calif., took to the Senate floor last month to accuse the CIA of possibly violating the law and the Constitution by monitoring computers used by her staff to assemble the report, and by removing and blocking access to documents.
The Justice Department, meanwhile, launched a criminal investigation at the CIA’s request into the alleged unauthorized removal of classified documents by Democratic committee staffers from the top-secret facility where they were required to review more than 6 million pages of operational emails and other documents related to the interrogation program.
Some current and former U.S. officials and military commanders, numerous experts and foreign governments have condemned the harsh interrogation methods as violations of international and U.S. laws against torture, a charge denied by the CIA and the Bush administration.
They’ve based their defense on a series of top-secret legal opinions issued by the Justice Department beginning in August 2002. At that time, the agency sought advice on whether using the harsh techniques on Zayn al Abidin Muhammad Husayn, a close aide to Osama bin Laden who went by the nom de guerre Abu Zubaydah, would violate U.S. law against torture.
The Justice Department’s Office of Legal Counsel found that the methods wouldn’t breach the law because those applying them didn’t have the specific intent of inflicting severe pain or suffering.
The Senate report, however, concluded that the Justice Department’s legal analyses were based on flawed information provided by the CIA, which prevented a proper evaluation of the program’s legality.
“The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program,” the report found.
Several human rights experts said the conclusion called into question the program’s legal foundations.
“If the CIA fundamentally misrepresented what it was doing and that was what led (Justice Department) lawyers to conclude that the conduct was legal, then the legal conclusions themselves were inaccurate,” said Andrea Prasow, senior national security counsel for Human Rights Watch. “The lawyers making those assessments were relying on the facts that were laid before them.”
“This just reinforces the view that everyone who has said the torture program was legal has been selling a bill of goods and it’s time to revisit the entire conventional wisdom being pushed by those who support enhanced interrogation that this program was safe, humane and lawful,” said Raha Wala, a lawyer with Human Rights First’s Law and Public Safety Program.
Among other findings, the report said that CIA personnel used interrogation methods that weren’t approved by the Justice Department or their headquarters.
The conclusion that the CIA provided inaccurate information to the Justice Department reflects the findings of a top-secret investigation of the program by the CIA Inspector General’s Office that was triggered by allegations of abuse.
The CIA inspector general’s May 7, 2004, report, which was declassified, found that in waterboarding Zubaydah and Khalid Sheikh Mohammad, deemed the chief architect of the 9/11 attacks, the CIA went beyond the parameters it outlined to the Justice Department’s Office of Legal Counsel, which wrote the legal opinions.
Zubaydah was waterboarded 83 times, while Mohammad underwent the procedure 183 times.
Those cases clashed with the CIA’s assertion _ outlined in the now-declassified top-secret August 2002 Office of Legal Counsel opinion _ that repetition of the methods “will not be substantial because the techniques generally lose their effectiveness after several repetitions.”
The Office of Legal Counsel opinion stated that its finding that the harsh interrogation techniques didn’t constitute torture was based on facts provided by the CIA, and that “if these facts were to change, this advice would not necessarily apply.”
The CIA inspector general’s report found that the “continued applicability of the DOJ opinion” was in question because the CIA told the Justice Department that it would use waterboarding in the same way that it was used in training U.S. military personnel to evade capture and resist the enemy. In fact, the inspector general’s report continued, the CIA used waterboarding in a “manner different” from U.S. military training.
The CIA also failed to keep track of the number of individuals it captured under the program, the Senate report concluded. Moreover, it said, the agency held people who didn’t meet the legal standard for detention. The report puts that number at 26, McClatchy has learned.
“The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained and held individuals who did not meet the legal standard for detention,” it found. “The CIA’s claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate.”
“The CIA’s records were hazy, inconsistent and at times inaccurate,” said the former U.S. official.
October 16, 2014
By Jonathan S. Landay, Ali Watkins and Marisa Taylor
A soon-to-be released Senate report on the CIA doesn’t assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency’s detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.
“This report is not about the White House. It’s not about the president. It’s not about criminal liability. It’s about the CIA’s actions or inactions,” said a person familiar with the document, who asked not to be further identified because the executive summary – the only part to that will be made public – still is in the final stages of declassification.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.
As a result, the $40 million, five-year inquiry passed up what may be the final opportunity to render an official verdict on the culpability of Bush, former Vice President Dick Cheney and other senior officials for the program, in which suspected terrorists were abducted, sent to secret overseas prisons, and subjected to the harsh interrogation techniques.
“If it’s the case that the report doesn’t really delve into the White House role, then that’s a pretty serious indictment of the report,” said Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School. “Ideally it should come to some sort of conclusions on whether there were legal violations and if so, who was responsible.”
At the same time, she said, the report still is critically important because it will give “the public facts even if it doesn’t come to these conclusions. The reason we have this factual accounting is not for prurient interest. It’s so we can avoid something like this ever happening again in the future.”
Several panel members have extolled the more than 6,000-page report as one of the most comprehensive examinations of an executive branch agency ever undertaken by Congress.
“There are more than 35,000 footnotes in the report,” Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., declared after the panel approved the final draft of the report in December 2012. “I believe it to be one of the most significant oversight efforts in the history of the United States Senate, and by far the most important oversight activity ever conducted by this committee.”
However, the Democratic-controlled committee apparently dropped a demand that the White House surrender some 9,400 documents related to the program, raising questions about Feinstein’s claim. The White House had refused to turn over the records for five years, citing “executive branch confidentiality interests.”
The specific details of the documents remain unknown. The CIA declined to comment. In a statement, Feinstein declined to discuss the report but said it was meticulous and the “definitive review of the program.”
The White House declined to comment on the contents of the committee’s report. “The president has made clear that the program that is the subject of the committee’s work is inconsistent with our values as a nation,” said national security spokeswoman Bernadette Meehan.
Meehan also said there were no updates on the documents the White House withheld from the panel’s review. “As we have discussed with the committee, during the course of the review, a small percentage of the total number of documents have been set aside because they raise executive branch confidentiality interests,” she said.
In voting in March 2009 to review the CIA’s Rendition, Detention and Interrogation Program, the committee tailored the guidelines to focus the inquiry solely on the CIA, including how the agency “created, operated, and maintained its detention and interrogation program.”
“As an oversight document the main premise is about whether Congress was accurately and appropriately informed by the CIA,” said the person familiar with the report, one of several knowledgable sources who spoke to McClatchy. “The report will show that the CIA did not provide accurate information, and in some cases provided misleading information.”
The narrow parameters of the inquiry apparently were structured to secure the support of the committee’s minority Republicans. But the Republicans withdrew only months into the inquiry, and several experts said that the parameters were sufficiently flexible to have allowed an examination of the roles Bush, Cheney and other top administration officials played in a top-secret program that could only have been ordered by the president.
“It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction,” said Kenneth Roth, executive director of Human Rights Watch. “It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”
It’s not as if there wasn’t evidence that Bush and his top national security lieutenants were directly involved in the program’s creation and operation.
The Senate Armed Services Committee concluded in a 2008 report on detainee mistreatment by the Defense Department that Bush opened the way in February 2002 by denying al Qaida and Taliban detainees the protection of an international ban against torture.
White House officials also participated in discussions and reviewed specific CIA interrogation techniques in 2002 and 2003, the public version of the Senate Armed Services Committee report concluded.
Several unofficial accounts published as far back as 2008 offered greater detail.
Cheney and Defense Secretary Donald Rumsfeld relentlessly pressured interrogators to subject detainees to harsh interrogation methods in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein, McClatchy reported in April 2009. Such evidence, which was non-existent, would have substantiated one of Bush’s main arguments for invading Iraq in 2003.
Other accounts described how Cheney, Rumsfeld, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and Secretary of State Colin Powell approved specific harsh interrogation techniques. George Tenet, then the CIA director, also reportedly updated them on the results.
“Why are we talking about this in the White House? History will not judge this kindly,” Ashcroft said after one of dozens of meetings on the program, ABC News reported in April 2008 in a story about the White House’s direct oversight of interrogations.
News reports also chronicled the involvement of top White House and Justice Department officials in fashioning a legal rationale giving Bush the authority to override U.S. and international laws prohibiting torture. They also helped craft opinions that effectively legalized the CIA’s use of waterboarding, wall-slamming and sleep deprivation.
Even so, the executive summary of the Senate Intelligence Committee’s report doesn’t examine the responsibility of Bush and his top advisers for abuses committed while the program was in operation from 2002 to 2006, according to several people familiar with the 500-page document.
Their comments are bolstered by the report’s 20 main conclusions, which do not point to any wrongdoing outside of the CIA.
Instead, the conclusions only mention the White House once, asserting that the CIA impeded effective White House oversight and decision-making.
“The report does not put responsibility with the White House,” said a second person familiar with the panel’s report.
The conclusions, published by McClatchy in April, paint a picture of an intelligence agency that concocted and implemented the program on its own and sought to evade any oversight.
The report primarily focused on discerning whether the use of the harsh interrogation techniques gained valuable intelligence, concluding that they did not. The CIA has rejected that finding, contending that use of the techniques produced vital information.
The executive summary of the report condenses the narratives of 20 detainee cases.
In one instance, McClatchy learned, the Bush administration claimed that the waterboarding of Khalid Sheikh Mohammed, the 9/11 mastermind, led to the foiling of a terror plot against Los Angeles’ Library Tower. The study, however, concludes that that information could have been learned without using the harsh interrogatiom techniques on Mohammad, who was waterboarded 183 times.
The scope of the committee’s work was hamstrung by concerns that the investigation would be an open-ended political witch hunt.
“This issue has unfortunately become so politicized that this report might have been attacked as a political document if it had” delved into the White House, said Goitein. “That’s not the ideal outcome, but it’s an understandable calculus in my mind.”
Along with being handicapped by the political considerations, the panel confronted two prior Justice Department investigations that declined to assign criminal liability to any officials involved in the program. One probe was conducted under the Bush administration and the second under President Barack Obama.
Moreover, Obama opposed any further inquiry. Although he signed an executive order banning waterboarding and other enhanced interrogation techniques soon after taking office, he also ruled out future prosecutions of those who participated in the program.
The extent of the Obama’s fury over the panel’s study was revealed in a memoir by former CIA Director Leon Panetta that was released this month. The president, he wrote, was livid that the CIA agreed in 2009 to give the committee access to millions of the agency’s highly classified documents.
“The president wants to know who the f--- authorized this release to the committees,” Panetta recalled then-White House Chief of Staff Rahm Emanuel shouting at him. “I have a president with his hair on fire and I want to know what the f--- you did to f--- this up so bad!”
The Senate Intelligence Committee’s investigation has been mired in controversy. Earlier this year, the agency was forced to admit it had improperly monitored the computers panel staff had used to construct the study. Meanwhile, the agency accused staff of removing classified information from a secure CIA facility without authorization. Both incidents resulted in warring criminal referrals to the Justice Department, which declined in July to further investigate.
The tensions over the investigation have continued to hold up the public release of the executive summary, which now has been delayed for nearly two years since the panel approved the final draft in December 2012.
The executive branch originally requested that 15 percent of the summary be redacted. McClatchy has learned that negotiations have reportedly progressed so that now roughly 5 percent will be blacked out of the summary’s public version, but there is no set date on when it will be released.
August 27, 2014
By Ali Watkins and Marisa Taylor
The background of a key negotiator in the battle over a Senate report on the CIA’s use of interrogation techniques widely denounced as torture has sparked concerns about the Obama administration’s objectivity in handling the study’s public release.
Robert Litt, the general counsel for the Office of the Director of National Intelligence, is a former defense lawyer who represented several CIA officials in matters relating to the agency’s detention and interrogation program. Now he’s in a key position to determine what parts of the Senate Intelligence Committee’s 6,300-page report will be made public.
Litt’s involvement doesn’t appear to be an ethics issue, at least by the legal definition. But experts say that while it may be acceptable on paper, his involvement in the review should have been a red flag.
“It does not cross the very low bar that the profession sets for an impermissible conflict of interest,” said Jack Marshall, the president and founder of ProEthics Ltd., a national ethics consulting and training company that has provided seminars to government lawyers, including those employed by the CIA. “But it is the kind of conflict of interest that should be avoided at all costs. The government has to be held to a higher standard.”
Litt, who’s now 64, was confirmed to his post by the U.S. Senate in 2009, contingent upon his agreement to recuse himself from situations that involved his former clients. He referred to the potential conflict in his responses to the Intelligence panel’s questions for the record, submitted during the course of his confirmation process.
“I represent several present and former employees of the Central Intelligence Agency in matters relating to the detention and interrogation of suspected terrorists,” Litt wrote to the committee in 2009. “By statute, under the rules of ethics and by virtue of my ethics agreement that has been provided to the committee, I will not participate personally and substantially in any particular matter involving these clients . . . including decisions about similarly situated individuals.”
Despite his 2009 testimony, though, Litt has found himself in the middle of a heated dispute over a program that, according to his testimony, involved several of his former clients.
Litt’s prior representations, however, didn’t seem to bother Sen. Dianne Feinstein, D-Calif., who chairs the Senate Intelligence Committee and who approved the arrangement.
“I spoke with Bob Litt about this matter and believe he will be fair, and negotiations thus far have shown that to be the case,” Feinstein said in a statement. “The DNI’s designated ethics official has reviewed the situation and determined there is no conflict that would necessitate a recusal.”
The Office of the Director of National Intelligence confirmed Feinstein’s approval and denied that Litt’s involvement violated his prior testimony.
“Consistent with his commitments, Mr. Litt has not participated in any decisions relating to the possible prosecution or investigation of his former clients, or any decisions that would affect the outcome of such matters,” the office said in a statement. “In addition, he and the designated ethics official met with Chairman Feinstein to discuss the matter and she did not ask for his recusal in this matter.”
The director of national intelligence’s ethics official is Susan Gibson, Litt’s principal deputy counsel at his current post.
The conversations between the Senate Intelligence Committee and the administration about Litt’s past representations and their approval of his involvement effectively waive charges of a conflict of interest, at least by rules of the legal profession.
“If he advised them on their legal exposure by virtue of their conduct and this report blasts them for that same conduct, he should not participate with regard to that part of the report,” said Stephen Gillers, a professor at New York University School of Law who specializes in legal ethics. “However, if everyone involved waives their objections, it wipes the slate clean.”
All of Litt’s former CIA clients also would have to waive a potential conflict, Gillers said. Administration officials wouldn’t say whether that occurred.
While Marshall, the ethics consultant and a Washington lawyer, agreed that it didn’t violate professional ethics regulations regarding conflicts, he said Litt’s involvement in the negotiations raised “questions of transparency and fairness.”
“It’s wrong because it raises the specter of cover-ups, it raises the specter of coordinated stories and it creates the danger of an appearance of impropriety,” he said.
“The public has a reason to be distrustful when it sees that kind of multiple representations,” Marshall continued. “I think every lawyer in this situation has to look back and say, ‘Do I have a conflict of interest at this moment with the duties of a government lawyer to the people of the United States of America? Does the public consent to this potential conflict of interest?’ ”
Citing attorney-client privilege, Litt declined in 2009 to name several of his clients who were involved in “nonpublic investigative matters.” Later in his responses to the committee, he said that some of the matters for which he’d provided counsel to CIA officials were classified.
Neither the White House nor Feinstein’s office would characterize Litt’s prior representation during his time in private practice. When asked whether Litt had represented former senior CIA officials involved in the interrogation program, the Office of the Director of National Intelligence declined to comment, also citing attorney-client privilege.
According to reports in The Washington Post, Litt previously represented a CIA analyst, Alfreda Frances Bikowsky, who played a central role in the bungled rendition of Khaled el-Masri. El-Masri, who was revealed to be innocent, claimed to have been tortured by the agency.
While Litt’s involvement appears to meet legal guidelines, it has nonetheless added to the criticism over the administration’s handling of the report’s public release.
“I have been concerned all along about conflicts of interest related to the declassification of the Senate Intelligence Committee’s study,“ said Sen. Mark Udall, D-Colo., a member of the panel. “I urged the president in April to have the White House lead the declassification process instead of the CIA. . . . The redaction process has not been conducted in accordance with my request, and I remain concerned about who continues to lead and drive the process.”
It’s been a long, difficult history for the panel’s study on the CIA’s interrogation and detention program, which has been a source of major deterioration in the relationship between the agency and the Senate oversight committee. The report’s executive summary is nearing public release. But the White House and its chief spy agency have effectively stalled even that process.
The Intelligence panel began compiling the report on the CIA’s post-9/11 detention, rendition and interrogation program in 2009. The report, although completed in 2012, has been held hostage because of fierce debates between the agency and the panel.
Those disputes culminated last month when the agency revealed that it had spied on the computers of committee staffers who were compiling the report. The agency also revealed that, during the course of the spying, CIA officials had falsified evidence against the committee staffers in order to charge them with mishandling classified information.
Feinstein’s panel voted to declassify the nearly 500-page executive summary of its report in April, but that’s been indefinitely halted because of disagreements over the report’s blackouts. The document that was returned to the committee after the executive branch’s declassification review was rendered incomprehensible due to redactions, according to Feinstein and several of her Democratic committee colleagues.
The crux of the redactions, officials said, are the pseudonyms used to identify CIA officials involved with the program. Feinstein and several of her fellow Democrats appealed to the White House that it _ not the agency _ lead the declassification process for the executive summary.
Their appeals fell on deaf ears, as the White House has deferred to the agency’s leadership throughout the declassification effort. White House national security Council? representative Caitlin Hayden defended Litt’s involvement, as well.
“Bob Litt is one of the administration’s strongest proponents of transparency in intelligence, consistent with our national security, and he and we are fully committed to ensuring there is no conflict of interest as the administration continues to work to see the results of the committee’s review made public,” Hayden said in a statement.
Accusations of conflict and mishandling have plagued the committee’s report for months. Litt’s involvement is just the latest controversy. In an explosive floor speech in March, Feinstein revealed that the CIA lawyer responsible for filing the falsified crimes report against her staffers, Robert Eatinger, is named more than 1,600 times in the report.
CORRECTION: An earlier version of this story inaccurately described CIA Director John Brennan's role in the agency's detention, rendition and interrogation program. Brennan has said he wasn’t directly involved in the program but was made aware of it and didn’t take steps to stop it.
Tish Wells contributed to this article.
July 15, 2014
By Marisa Taylor and Jonathan S. Landay
The CIA obtained a confidential email to Congress about alleged whistleblower retaliation related to the Senate’s classified report on the agency’s harsh interrogation program, triggering fears that the CIA has been intercepting the communications of officials who handle whistleblower cases.
The CIA got hold of the legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring, people familiar with the matter told McClatchy. It’s unclear how the agency obtained the material.
At the time, the CIA was embroiled in a furious behind-the-scenes battle with the Senate Intelligence Committee over the panel’s investigation of the agency’s interrogation program, including accusations that the CIA illegally monitored computers used in the five-year probe. The CIA has denied the charges.
The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight.
The email related to allegations that the agency’s inspector general, David Buckley, failed to properly investigate CIA retaliation against an agency official who cooperated in the committee’s probe, said the knowledgeable people, who asked not to be further identified because of the sensitivity of the matter.
Somehow, according to these people, Buckley obtained the email, which was written by Daniel Meyer, the intelligence community’s top official for whistleblower cases, to the office of Sen. Chuck Grassley, R-Iowa, a leading whistleblower-protection advocate. The Senate Intelligence Committee also learned of the matter, said the knowledgeable people.
After obtaining the email, Buckley approached Meyer’s boss, I. Charles McCullough III, the inspector general for the 17-agency U.S. intelligence community, in what may have constituted a violation of the confidentiality of the whistleblowing process, they said.
Monitoring inspectors’ general communications with lawmakers would clash with efforts by Congress and President Barack Obama to strengthen protections for intelligence community whistleblowers. If government officials outside an inspector general’s office accessed such communications, they could discover whistleblowers’ identities and retaliate against them by targeting them as security risks known as “insider threats.”
The incident involving Meyer’s email occurred shortly before Grassley and Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, wrote to Director of National Intelligence James Clapper demanding to know if all of the communications of federal employees with security clearances are being continually monitored, without protections for whistleblowers. McClatchy’s sources said that the letter and the email were likely connected.
“If whistleblower communications with Inspectors General or with Congress are routinely monitored and conveyed to agency leadership, it would defeat the ability to make protected disclosures confidentially, which is especially important in an intelligence community context,” the senators wrote.
The letter, which Grassley and Wyden made public on June 19, made no mention of the email controversy. Grassley’s office declined to comment on the letter or the email controversy. “The letter speaks for itself,” said Keith Chu, a Wyden spokesman, who declined further comment.
The senators wrote that monitoring whistleblower communications “could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.” They were apparently referring to former National Security Agency contractor Edward Snowden’s disclosures to the media.
Snowden has said that he decided to leak to the media thousands of top-secret documents on the NSA’s sweeping collection of Americans’ communications data in part because he did not trust the system designed to protect whistleblowers from retaliation.
Clapper responded to the letter from Grassley and Wyden on Friday _ a day after McClatchy sought comment from the CIA. Clapper’s letter, obtained by McClatchy, didn’t directly address the Meyer email.
Clapper’s letter suggested there is a need for tighter technical controls that discriminate between whistleblower-related communications and genuine insider threats.
McCullough and other intelligence community inspectors general are “currently examining the potential for internal controls that would ensure whistleblower-related communications remain confidential, while also ensuring the necessary UAM (user activity monitoring) occurs,” Clapper said in the letter.
If such disclosures occur, he said, they’d be accidental, and in such cases there are safeguards in place to maintain the confidentiality of the whistleblowers.
“In the event a protected disclosure by a whistleblower somehow comes to the attention of personnel responsible for monitoring user activity, there is no intention for such disclosures to be reported to agency leadership under an insider threat program,” Clapper wrote.
The email controversy finds an echo in the allegations that the CIA monitored computers that Senate Intelligence Committee staffers used to compile the 6,000-page investigative report on the agency’s use of waterboarding and other harsh interrogation methods on terrorist suspects held in secret overseas prisons.
The report is undergoing a declassification review, and its 400-page executive summary, findings and conclusions are expected to be made public in coming weeks.
Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., took to the Senate floor in March to charge that the CIA “may have violated the separation of powers principles embodied in the United States Constitution” by monitoring her staff’s computers.
The Justice Department announced earlier this month that it would not pursue her charges or separate CIA allegations that her staff removed classified materials from a top-secret CIA facility without authorization.
The Senate Intelligence Committee declined to comment on Meyer’s email, as did the Office of the Inspector General for the Intelligence Community, the CIA and Clapper’s office. Meyer’s office declined to allow a reporter to speak to him.
Meyer’s email concerned allegations that Buckley failed to thoroughly investigate a whistleblower retaliation claim, McClatchy has learned. The retaliation allegedly involved delays by the CIA in paying the legal fees of CIA officials who cooperated with the Senate committee. An indemnification agreement required the agency to cover those costs – which it eventually did – as long as the officers weren’t found to have committed any wrongdoing.
Meyer, whose official title is Executive Director, Intelligence Community Whistleblowing and Source Protection, handles whistleblower allegations of waste, fraud and abuse within the intelligence community. He works for McCullough, the intelligence community inspector general, in a facility whose email network is part of the CIA’s system, McClatchy was told.
The Intelligence Community Inspector General’s Office was set up in 2011 as an independent watchdog with some oversight powers over other intelligence agency inspectors general, including the CIA.
After Buckley approached McCullough about Meyer’s email, McCullough’s office sent two classified notifications to the Senate Intelligence Committee.
Grassley announced in an April 14 press release that he’d received two notifications from McCullough’s office, but he did not provide details, saying the contents of the notifications were classified.
The first notification, sent on March 28, 2014, had the unclassified subject line “Whistleblower Communications,” Grassley said. The second, sent three days later, had the unclassified subject line “Whistleblower Communications – Clarification.”
In a letter to Clapper and CIA Director John Brennan attached to Grassley’s release, the senator questioned the need to keep the notifications secret and asked them to declassify the documents because of the “strong public interest in their content.” Grassley copied the letter to Senate Judiciary Chairman Patrick Leahy, D-Vt., members of the Senate Intelligence Committee, the Office of Senate Security and intelligence agency officials.
“I respectfully request that they be declassified as soon as possible so that the serious policy implications and potential Constitutional issues that they raise can be debated publicly,” Grassley wrote.
There could be several explanations of how Buckley obtained Meyer’s email, said experts familiar with insider threat monitoring. They requested anonymity because of the matter’s sensitivity.
CIA computer security systems could have inadvertently flagged Meyer’s email because it contained certain keywords deemed to be indicators of a potential breach, they said.
Other triggers could include sending email from a personal account over a government network, the identity of the recipient or emailing an attachment, they said.
Intelligence and defense agencies log their workforces’ computer use to detect and deter security risks as part of the administration’s Insider Threat Program, an effort to prevent unauthorized leaks of information.
Employees are notified of the monitoring and are told that they could lose their security clearances if they are caught improperly divulging sensitive or classified information. But security officials are barred from targeting whistleblowers.
Clapper earlier this year discussed the need to continually evaluate the trustworthiness of federal employees with security clearances as part of the Insider Threat Program by monitoring their official and “off the job” communications.
“We’re going to need to change our security clearance process to a system of continuous evaluation,” he told the Senate Armed Services Committee on Feb. 11. The intelligence community, he continued, needed to have “a way of monitoring their behavior, both their electronic behavior on the job as well as off the job.”
Last year, a series of McClatchy reports described how the Insider Threat Program had become an unprecedented government-wide crackdown in which federal bureaucrats were ordered to watch co-workers for “high-risk persons or behaviors.”
The program covers virtually every federal department and agency, including the Peace Corps, the Department of Education and others not directly involved in national security.
December 30, 2014
By Marisa Taylor
When Ilana Greenstein blew the whistle on mismanagement at the CIA, she tried to follow all the proper procedures.
First, she told her supervisors that she believed the agency had bungled its spying operations in Baghdad. Then, she wrote a letter to the director of the agency.
But the reaction from the intelligence agency she trusted was to suspend her clearance and order her to turn over her personal computers. The CIA then tried to get the Justice Department to open a criminal investigation of her.
Meanwhile, the agency’s inspector general, which is supposed to investigate whistleblower retaliation, never responded to her complaint about the treatment.
Based on her experience in 2007, Greenstein is not surprised that many CIA employees did little to raise alarms when the nation’s premier spy agency was torturing terrorism suspects and detaining them without legal justification. She and other whistleblowers say the reason is obvious.
“No one can trust the system,” said Greenstein, now a Washington attorney. “I trusted it and I was naive.”
Since 9/11, defense and intelligence whistleblowers such as Greenstein have served as America’s conscience in the war on terrorism. Their assertions go to the heart of government waste, misconduct and overreach: defective military equipment, prisoner abuse at Abu Ghraib, surveillance of Americans.
Yet the legal system that was set up to protect these employees has repeatedly failed those with the highest-profile claims. Many of them say they aren’t thanked but instead are punished for speaking out.
More than 8,700 defense and intelligence employees and contractors have filed retaliation claims with the Pentagon inspector general since the 9/11 attacks, with the number increasing virtually every year, according to a McClatchy analysis.
While President Barack Obama expanded protections for these whistleblowers, his changes didn’t go far enough to address the gaping holes in an ineffective and unwieldy bureaucracy for those who claim retaliation, McClatchy found.
The daunting obstacles for defense and intelligence whistleblowers in such cases include:
– A battle between investigators and managers at the Pentagon inspector general’s office over the handling of reprisal claims, culminating in accusations that findings were intentionally altered in ways that were detrimental to whistleblowers.
– An entrenched and pervasive anti-whistleblower attitude, especially when the claims involve high-level officials or significant or embarrassing wrongdoing.
– Delays that discourage even the most persistent whistleblower.
‘A Trojan horse’
“Only someone with a martyr complex would submit themselves to this system,” said Tom Devine, legal director of the Government Accountability Project, an advocacy group that’s helped whistleblowers since 1977. “We advise intelligence whistleblowers to stay away from established channels to defend against retaliation. In our experience they’ve been a Trojan horse, a trap that ends up sucking the whistleblower into a long-term process that predictably ends up with the whistleblower as the target.”
Obama rejected such criticism of the whistleblowing system after National Security Agency contractor Edward Snowden pointed to the leak prosecution of an NSA whistleblower as one of the reasons he’d decided to go to the news media about the spy agency’s collection of Americans’ data.
“I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community for the first time,” the president said after the leaks in June 2013. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”
Officials with inspectors general’s offices also say they already investigated reprisal complaints before the expanded protections. Employees, however, often can’t prove they were retaliated against under the terms outlined in whistleblower laws, they said.
In many cases, employers demonstrate that they took action against an employee for performance-related reasons – not in retaliation for whistleblowing. In just over a decade, five intelligence inspectors general have substantiated only a total of four retaliation claims, according to their own estimates.
“There’s a view that these whistleblower reprisal cases are all these big, huge programmatic issues, when in reality many of them are about things like performance and promotions,” James A. Protin, counsel to the NSA inspector general, told McClatchy. “There are a lot of reasons that action may have been taken that had nothing to do with them talking to the IG.”
Gaps also remain in legal protections despite the president’s revisions. Intelligence contractors, for instance, who are fired still can’t claim retaliation.
“People that the public might perceive as being protected under whistleblowing laws sometimes are not,” said Nilgun Tolek, the director of whistleblower reprisal investigations at the Pentagon inspector general’s office. “The system is a patchwork of different laws . . . not all complaints meet the criteria necessary for coverage and investigation.”
But the obstacles whistleblowers face are more than legal technicalities, McClatchy’s inquiry found.
At the Pentagon inspector general’s office, its own investigators accused the office of improperly dismissing, watering down or stalling conclusions in retaliation inquiries, according to five federal officials who are familiar with the allegations and spoke only on the condition of anonymity because of the matter’s sensitivity.
Cases that are controversial, complicated or involve high-level officials are especially prone to being altered in a way that’s unfavorable to whistleblowers, the federal officials said.
For instance, managers and the top lawyer for the office are accused of reversing findings that Mike Helms, an Army intelligence officer, was retaliated against for blowing the whistle in 2004 on inadequate care for military civilians wounded in combat.
‘They cherry-pick the evidence’
Pentagon inspector general managers also are accused of impeding an investigation into claims by a staff judge advocate in Quantico, Va. Maj. James Weirick accused the Marine Corps of interfering with the prosecution of four scout snipers who were videotaped urinating on dead Taliban fighters in Afghanistan.
The officials said the inspector general’s office had sought for years to avoid investigating claims of retaliation for legal reasons, rather than determining whether cases merited investigation in the first place.
“Managers make the narrative what they want it to be,” charged one official. “They cherry-pick the evidence they deem as ‘relevant.’ ”
According to the McClatchy analysis, less than 20 percent of retaliation claims since 9/11 have been investigated. The rest were thrown out after a preliminary analysis or no investigation.
Only 4 percent have been substantiated. In private industry, the substantiation rate is said to be three times higher.
In September, five congressional Democrats and three Republicans wrote to Inspector General Jon Rymer to complain that the office was interpreting protections for contractor whistleblowers “so narrowly” that it had “the potential to preclude meritorious claims of retaliation.”
In yet another sign of the internal problems, the Pentagon’s inspector general office tried – and failed – to suspend the top-secret access of its former director of whistleblowing, triggering concerns in Congress that he was being retaliated against for doing his job.
Officials who’ve raised the concerns about reprisal investigations have alleged that they’ve been retaliated against themselves.
“It’s not surprising there are so few substantiated reprisal cases at the Pentagon,” said Sen. Charles Grassley, an Iowa Republican who’s pushed for more aggressive whistleblower investigations. “There is an inherent bias against whistleblowers in the inspector general’s office.”
Officials with the Pentagon inspector general’s office said they couldn’t comment on specific cases but that investigations underwent “a rigorous quality-review process” to ensure that final reports were accurate, complete and “legally sufficient.” As a result, findings might be modified or “conclusions changed.”
To ensure cases don’t slip through the cracks, managers have doubled the staff assigned to the unit that handles retaliation, officials said.
“This office is dedicated to providing a thorough and fair analysis of every complaint submitted,” said Tolek, who oversees reprisal investigations.
More obstacles
Yet even whistleblowers who prove they’ve been retaliated against face recalcitrant agencies.
Agencies may ignore reprisal findings because inspectors general can’t enforce their recommendations. The Office of Special Counsel, which is able to sue on behalf of whistleblowers, often cannot do so in intelligence or defense cases because the retaliation involves revoking or suspending a security clearance. (The office has no jurisdiction over decisions on security clearances.)
Appealing to a panel overseen by the intelligence community inspector general is a new option in such cases. Whistleblowers can ask to get their security clearances or jobs back and to be awarded back pay and other compensation. Employees must wait for their own agencies to investigate the complaint before appealing, however.
The intelligence community inspector general decides which cases the panel will hear, and he urged whistleblowers not to “have a misperception that blowing the whistle provides a shiny badge or a force shield preventing adverse actions.”
“Protection comes after the damage has been done and only if an investigation substantiates wrongdoing and the agency provides corrective action,” said the intelligence community inspector general, I. Charles McCullough III.
In fact, whistleblowers may experience years of retaliation even after their claims are substantiated. George Sarris, a former mechanic at Offutt Air Force Base in Nebraska, first blew the whistle on improper maintenance of reconnaissance planes used in Iraq and Afghanistan in 2004. Many of his claims were eventually substantiated, but not before he was accused of being psychologically unstable, a violent troublemaker and a thief.
The charges against him were later disregarded by an administrative law judge who recommended that his security clearance be reinstated. The Air Force, however, resisted the judge’s recommendation. Instead, officials told Sarris he could keep his job only if he agreed to be detailed to the base gym until his retirement. Exhausted by his decade-long experience, he retired earlier this year.
“I would advise people to consider their position in life to see if they can endure an attack on their character,” he said in a recent interview. “Defending myself was a full-time job.”
Another major hurdle for defense and intelligence whistleblowers is an insular and secretive culture that tends to discourage investigating or speaking out against government abuses, although defense and intelligence agencies say they’ve bolstered training on how managers should handle complaints.
‘It depends on the tone at the top’
Lanie D’Alessandro, a former inspector general for the National Reconnaissance Office, acknowledged the challenges of investigating allegations of significant wrongdoing, especially at military intelligence agencies. She pointed out that those inspectors general became “statutorily independent” only recently, which shielded them from being unilaterally removed by the directors of their own agencies.
“There can be obstacles for inspectors general,” D’Alessandro said. “It depends on the tone at the top. The intelligence community still lacks a culture of consistently encouraging independence from their IGs.”
D’Alessandro, who’s retired, handled a major whistleblower case during her tenure but refused to comment on it.
She did add that “if you’re going to do this job well, you risk your future job aspirations. It’s best if you take the job as a swan song before you retire.”
McClatchy independently reported in 2012 that her office had notified Congress about launching an inquiry after meeting secretly with four top officers of the National Reconnaissance Office, which oversees the nation’s spy satellites.
The officers told her about “a series of allegations” of malfeasance by a colleague. The agency’s then No. 2 official, Air Force Maj. Gen. Susan Mashiko, was accused of threatening to retaliate against those who went to the inspector general.
Mashiko continued to serve in her position for an additional year and has since retired honorably. However, the careers of some who spoke up suffered, according to people familiar with the matter, who asked not to be identified because of the sensitivity of the issue. The Pentagon inspector general’s office refused to comment on the conclusions of the retaliation case, although it published other findings that Mashiko had used her government car improperly as a “personal limousine service.”
The high-level officers had told the inspector general they were concerned about flaws in a classified program that involved hundreds of millions of dollars, according to the people familiar with the matter. Officials in the agency disagreed over whether the National Reconnaissance Office already was fixing the problems, which were alleged to be wide-ranging and expensive. The NRO did not respond to McClatchy’s questions about the program.
“These were major problems, and no one wanted to deal with them,” one of the sources said. “It’s probably because they felt they were too big to deal with.”
Other intelligence agencies have been accused of ignoring significant abuses or mismanagement, including the CIA in a newly released Senate Intelligence Committee report on the agency’s detention and interrogation of overseas terrorism suspects.
The report said the CIA had “marginalized and ignored numerous internal critiques, criticisms and objections” to its interrogation program, although the agency maintained that it made changes to the program in response to criticism earlier than it had been given credit for.
The Senate report said senior officials with the agency had overruled their inspector general’s recommendations about the program after he “identified wrongdoing,” including in the death of a detainee.
“The CIA rarely reprimanded or held personnel accountable for serious and significant violations,” it said.
As the inspector general was investigating the program, then-CIA Director Michael Hayden ordered an internal inquiry into the inspector general’s office itself. Hayden’s inquiry sparked criticism that he was meddling improperly in the work of what was supposed to be an independent watchdog, a charge the CIA denied.
Few complaints are substantiated
Despite experiencing such intense scrutiny, intelligence inspectors general have little experience in handling whistleblower reprisal complaints.
The CIA inspector general’s office, for instance, says it hasn’t substantiated any of the eight whistleblower retaliation complaints it’s closed since 2003. Two more are still open inquiries. It didn’t count 67 other reprisal claims, saying they didn’t involve whistleblower claims of waste, fraud or abuse.
Some critics question whether the CIA is splitting hairs on the definition of “whistleblower” in a way that makes it appear the agency receives far fewer complaints than it does.
“To those of us in the private sector who protect whistleblowers, anyone who files a complaint is blowing the whistle on agency misconduct,” said Kel McClanahan, an attorney who handles such cases. “They’re whistleblowers because they are bringing misconduct to the attention of those offices set up to investigate it.”
Greenstein, the former CIA officer in Iraq, said she wouldn’t be surprised if the CIA didn’t count her complaint as a whistleblower reprisal case or even investigate her allegations, including that her security chief in Baghdad had deleted details about safety risks from cables.
The CIA instead focused on trying to get the Justice Department to open a criminal case against her, Greenstein said. She’d mentioned that she was writing a book, which is permitted at the agency as long as it goes through a review. The CIA then demanded to see her personal computers. When she got them back months later, all that she’d written had been deleted.
“I wrote a letter to the IG documenting all that had happened, including the agency’s illegal possession of my computers,” said Greenstein, who’s now an attorney with Mark Zaid’s law firm, which specializes in national security law. “We received no response.”
Soon after, news broke that Hayden had ordered the internal inquiry of the inspector general’s office. Disheartened by the handling of her case, she resigned.
John Reidy, a former CIA contractor, recently cited his frustration with the inspector general’s handling of his case in his appeal to the new intelligence community panel. Reidy claimed he was demoted and eventually fired in retaliation after he tried to raise the alarm in 2007 on an “intelligence failure” by the spy agency.
His lawyer McClanahan said he understood that “the intelligence failure involved U.S. government activity that was supposed to be covert but was done in such a bungled way that it was virtually guaranteed to be discovered.”
CIA inspector general investigators didn’t interview Reidy until two years after he first went to them and then only after being directed to do so by the House Intelligence Committee, McClanahan said.
The inspector general’s office also prevented Reidy from telling McClanahan more details because they might be classified, the lawyer said.
McClatchy’s requests to speak to the CIA inspector general were referred to the agency’s public affairs office, where spokesman Ryan Trapani said he couldn’t respond to questions about specific cases.
The CIA and other intelligence agencies, however, told McClatchy their inspectors general had investigated retaliation allegations before the president’s expansion of whistleblower protections.
Obama’s initiative “reiterated CIA’s long-standing policy that reprisals or threats . . . will not be tolerated,” Trapani said in a statement.
The NSA inspector general’s office has substantiated only two of the 35 reprisal claims it’s received since 9/11. The office opened nine of them without the whistleblowers requesting it themselves.
Officials there say NSA employees have more confidence in the system than Snowden led the public to believe. Since his leaks, whistleblower reprisal claims have increased slightly.
“In general, employees of the NSA want to do what’s right,” said Protin, counsel to the NSA inspector general. “So when Snowden went public with classified information, employees are aware that’s not legally the way to do it.”
‘You’re doomed’
Former senior NSA official Thomas Drake, however, said his own case was emblematic of why intelligence employees couldn’t rely on the system.
He and four others cooperated with a Pentagon inspector general inquiry into allegations of the waste of hundreds of millions of dollars in an NSA program known as Trailblazer.
Federal investigators later targeted him for leaking to a New York Times reporter, although he wasn’t a source for the story. After the evidence against him unraveled, federal prosecutors permitted him to plead guilty to a misdemeanor. The judge, who sentenced him to probation, scolded the government for the prosecution, saying he was troubled by how it had collapsed despite a long, drawn-out investigation.
Drake resigned as the NSA was moving to revoke his security clearance and fire him. Although the findings haven’t been made public, McClatchy has learned that investigators with the Pentagon inspector general’s office have concluded he wasn’t retaliated against.
His attorneys have been told only that “clear and convincing evidence” had demonstrated that the NSA would have taken the same actions even without his disclosures.
“Who would want to go through the whistleblowing system after seeing what happened to me?” Drake said. “You’re doomed.”
Even whistleblowers whose retaliation claims are substantiated describe delays and inaction.
The average wait for the Pentagon inspector general to close a reprisal case was 420 days, according to a congressional analysis. Only three of 46 were substantiated in that time period, the inquiry by Grassley’s office found. In the end, 39 waited in vain, because their cases were thrown out.
Franz Gayl, a civilian science adviser for the Marine Corps, fought his case for more than seven years before reaching a settlement in September. Senators credited him with blowing the whistle about delays on armored vehicles that would have protected troops from roadside bombs.
But Gayl, who was able to keep his job, pointed out he’ll have little recourse if the Pentagon decides he’s ineligible for a renewed security clearance.
“National security whistleblowers aren’t safe,” he said. “I was one of the very lucky ones. And my temporary victory could vanish at any moment.”
Samantha Ehlinger and Tish Wells contributed to this article.
Dear Judges,
McClatchy’s reporting first exposed and then detailed multiple efforts by the CIA and White House to thwart the Senate Intelligence Committee’s investigation into the agency’s use of torture, including CIA intrusions into the committee’s computers, in the most serious clash over congressional oversight of intelligence operations in decades.
McClatchy's reporting compelled Senate Intelligence Committee Chairman Dianne Feinstein, DCalif., to confirm on the Senate floor the unprecedented CIA monitoring - which she called potential violations of the law and the Constitution - and the extraordinary closed-door battle between the agency and its congressional overseers over the torture report. Eventually, CIA Director John Brennan acknowledged the monitoring and apologized to the committee in a closed meeting, which McClatchy also was the first to report.
Other McClatchy exclusive reports revealed the startling, top-secret conclusions of the committee's five-year, $40 million investigation eight months before the public release of the report's declassified executive summary. Other stories suggested collusion between the CIA and the Obama administration, which withheld more than 9,000 top-secret documents from Senate investigators. McClatchy was the first news organization to report on the key role played by the White House in the tug-of-war over how much of the declassified executive summary should be made public.
McClatchy dug deeper, exposing flaws in the Intelligence Community's whistleblowing system that potentially discouraged CIA officers from speaking out on the torture program. Finally, McClatchy disclosed the CIA's interception of electronic communications to Congress about alleged whistleblower retaliation related to the torture report. The story compelled Director of National Intelligence James Clapper to end months of silence and explain the interception to Congress.
McClatchy's scoops were the result of "shoe-leather" investigative reporting. McClatchy reporters turned up at officials' homes on weekends and waited for hours outside front doors in the snowy cold. McClatchy reporters also spent months dogging senators through the halls of Congress, waiting outside their offices and hearing rooms, and pressing CIA officials to disclose details of the conflict with Congress.
The main obstacle to McClatchy’s reporting was the intense secrecy that the committee, the CIA and the White House strived to maintain amid a rigorous government crackdown on leaks in the wake of the Snowden and Wikileaks scandals. As a measure of the prevailing atmosphere, McClatchy’s disclosure of the classified conclusions of the torture investigation prompted Feinstein to demand a Justice Department leak investigation.
Ali Watkins, then a Temple University senior interning at the McClatchy Washington Bureau, picked up the first hints of serious tensions between the CIA and the committee in late 2013 from sources she’d developed while covering hearings on the National Security Agency.
Watkins, who was later hired, began staking out the committee’s bi-weekly closed-door business meetings. She was often the only reporter there as many veteran journalists saw little value in spending hours outside the committee’s high-security offices in the Hart Senate Office Building.
Watkins’ persistence paid off. She was the only reporter present when the panel held an emergency closed-door meeting – hours before President Barack Obama’s 2014 State of the Union Address – at which CIA Director John Brennan denied that the agency had monitored the committee’s computers and then accused staff members of removing classified documents from a top-secret CIA facility without authorization.
At that time, however, Watkins had only crumbs of information. She brought her leads to Senior National Security Correspondent Jonathan S. Landay, who started canvassing national security sources he’d developed during nearly 20 years covering the intelligence, defense and diplomatic beats.
As the pair learned more about what one source called an unprecedented intelligence scandal, Washington Bureau Chief James Asher decided that more firepower was required. So Asher brought in Marisa Taylor, an investigative reporter who’d developed sources while chronicling whistleblowing in defense and intelligence agencies.
Taylor plumbed her sources while Watkins and Landay visited the homes of lawmakers and other officials at nights and on weekends, sometimes spending several hours outside in the January and February cold. Most of the stakeouts ended with little accomplished.
Finally, however, the trio felt confident enough to break the initial report on March 4 despite warnings from U.S. intelligence officials that they had the story wrong. Some of those same U.S. intelligence officials then sought to plant misleading and inaccurate information on McClatchy for subsequent stories, including the notion that committee staffers “hacked” into a CIA data base, an erroneous allegation that nevertheless was reported by one of the nation’s leading newspapers.
McClatchy’s reporters continued relentlessly pursuing the story, keeping pressure on lawmakers and officials to disclose information to the public that they’d sought to suppress.
The CIA inspector general later concluded that CIA employees had improperly monitored Senate staff, including by conducting keyword searches of staffers’ emails. The inspector general also criticized three CIA information technology specialists for showing “a lack of candor” in interviews with his office.
The conclusion prompted bipartisan outrage and calls for spy chief Brennan to resign. A CIA panel, however, disagreed with the findings and recommended that none of the agency’s employees be punished.
- James Asher, McClatchy Washington Bureau Chief
Biography
Marisa Taylor, an investigative reporter, has more than 15 years of daily newspaper experience in Washington, California, Virginia, Texas and Mexico.
Jonathan S. Landay is senior national security and intelligence correspondent for McClatchy Newspapers.
Ali Watkins worked as a regional reporter and intelligence correspondent for McClatchy Newspapers’ Washington bureau.
Winners
Prize Winner in National Reporting in 2015:
Carol D. Leonnig
For her smart, persistent coverage of the Secret Service, its security lapses and the ways in which the agency neglected its vital task: the protection of the president of the United States.
National Reporting
Finalists
Nominated as finalists in National Reporting in 2015:
Walt Bogdanich and Mike McIntire
For stories exposing preferential police treatment for Florida State University football players who are accused of sexual assault and other criminal offenses.
The Jury
The Jury
David Shipley(Chair )
senior executive editor
Trif Alatzas
senior vice president and executive editor
Mary Elson
managing editor
Brian McGrory
editor
Terri Thompson
director, Knight-Bagehot Fellowships in Economics and Business Journalism
Winners in National Reporting
David Philipps
For expanding the examination of how wounded combat veterans are mistreated, focusing on loss of benefits for life after discharge by the Army for minor offenses, stories augmented with digital tools and stirring congressional action.
Lisa Song, Elizabeth McGowan and David Hasemyer
For their rigorous reports on flawed regulation of the nation's oil pipelines, focusing on potential ecological dangers posed by diluted bitumen (or "dilbit"), a controversial form of oil.
David Wood
For his riveting exploration of the physical and emotional challenges facing American soldiers severely wounded in Iraq and Afghanistan during a decade of war.
Jesse Eisinger and Jake Bernstein
For their exposure of questionable practices on Wall Street that contributed to the nation's economic meltdown, using digital tools to help explain the complex subject to lay readers.
2015 Prize Winners
Anthony Doerr
An imaginative and intricate novel inspired by the horrors of World War II and written in short, elegant chapters that explore human nature and the contradictory power of technology.
Julia Wolfe
A powerful oratorio for chorus and sextet evoking Pennsylvania coal-mining life around the turn of the 20th Century.
Stephen Adly Guirgis
A nuanced, beautifully written play about a retired police officer faced with eviction that uses dark comedy to confront questions of life and death.
David I. Kertzer
An engrossing dual biography that uses recently opened Vatican archives to shed light on two men who exercised nearly absolute power over their realms.