Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute.
Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by removing certain documents, including drafts of the “Internal Panetta Review,” from the CIA facility without getting pre-clearance to do so. I agree with Donesa that Feinstein clearly, though implicitly, acknowledged such a violation. She claimed in her statement that the removal of the documents was lawful and in keeping with the “spirit” of the agreement (because the committee redacted the information that it believed the CIA would legitimately be able to protect). The corollary is that SSCI violated the letter of the agreement, and I doubt that the CIA would agree that SSCI complied with the agreement’s spirit either.
I would note here that Feinstein doesn’t say whether she authorized the committee staff to remove the documents. But she is clearly saying that the staff acted properly because “there was a need to preserve and protect the Internal Panetta Review in the committee’s own space.” If they had not done so, she suggests, the CIA might have removed the committee’s ability to access the documents at the CIA facility. Moreover, the CIA might have destroyed the documents altogether.
Donesa finds the last suggestion, in particular, rather implausible under the circumstances, and this would be my first reaction as well. But the most important point is that Senator Feinstein is accusing the CIA of being such a rogue agency that it cannot be trusted to avoid even the reckless and unlawful step of destroying evidence specifically known to and demanded by its oversight committee.
So the question I would raise is whether Feinstein’s charge should be viewed as merely the sort of hyperbole we have come to expect in the back and forth of Washington bickering, or whether it should be taken seriously. And if the latter, what is the proper mechanism for adjudicating such an extraordinary charge?
This appears to be an attempt to use a good offense as the best defense. Senator Feinstein claims that the Committee’s removal of the documents was lawful. But even if redactions were made to protect the same information the CIA would have protected, it is clear that the Committee did not have permission to possess the documents outside of the CIA facility. The CIA’s report to the Justice Department could include a claim that the Committee staff removed classified documents without authorization. Former National Security Adviser Sandy Berger pled guilty to that charge after he was permitted access to classified documents related to the work of the 9/11 Commission but removed them from the National Archives. Even if the redactions eliminated national security implications from the removal, such a removal may still constitute a theft of government property.
Other than a security investigation, there could be other issues that would affect the analysis of the CIA’s search of the computer. Did the search gather Committee work product related to the Panetta Review documents? Was there a procedure to retrieve documents that inadvertently were placed on the system? Even if the Committee had the documents, it might still be in the CIA’s interest to remove them from them system in case there were others that the Committee did not have that might also have been inadvertently placed on the system. Did the CIA follow that procedure or even a reasonable procedure for doing so. It is not even clear from he reporting that the CIA’s search was inconsistent with its agreement with the Committee? Would it have been inconsistent with that agreement for the CIA, upon learning that certain documents that were not supposed to be produced but that were on the system, to instruct an IT specialist to remove them? How were documents identified for production in the first place? Surely CIA officials were involved in that — they were not placed on the system just by an IT specialist.
On both sides there has been too much self-help that undermines trust between the Committee and the CIA. As Chris Donesa notes, the Committee had other ways to protect its interests in the documents. The CIA also could have halted access while it worked out with the Committee how to handle these problematic documents.
There are always tussles between agencies and Congress over documents required t be produced. These disagreements can derail an investigation. Occasionally, a Committee is thrilled to receive or become aware of a document the agency did not intend to produce. Once the Committee is aware of these documents, it must be careful not to overplay its hand. Similarly, agencies that inadvertently produce documents might do better to minimize their importance rather than heighten interest by overreacting as well. The Committee and the CIA need to find a way to get back on the same page and move ahead with the investigation. Otherwise, the results of the investigation will be long on allegations of misconduct and short on the important issues sought to be addressed.
There really are no heroes in this story, are there?
Don’t worry, the Senate Majority Leader has turned this important matter over to the Sergeant at Arms. http://blogs.rollcall.com/wgdb/reid-asks-sergeant-at-arms-to-probe-spying-warns-of-intelligence-community-run-amok/
Uhh, never mind. http://blogs.rollcall.com/wgdb/sergeant-at-arms-terrance-gainer-to-leave-the-hill/