Senator Dianne Feinstein

Reported and alleged Central Intelligence Agency spying on Senate Select Committee on Intelligence members should only increase the effort by senators to have a report on the agency’s rendition, detention and interrogation program released.

McClatchy reports that the CIA Inspector General’s Office has requested that the Justice Department investigate “malfeasance” by the agency stemming from conduct related to the Senate report, which comprehensively details the CIA’s role in the torture of terrorism suspects.

The “malfeasance” is suspected to be alleged “monitoring” of computers that committee staff were using when working on the report in a “secure room at CIA headquarters.”

The American Civil Liberties Union (ACLU), which has pushed for the release of the 6,300-page report and filed a Freedom of Information Act (FOIA) lawsuit against the CIA, appropriately reacted, “If it turns out that the CIA was spying on the Senate committee that oversees the agency, it would be an outrageous violation of separation of powers.”

…The CIA is prohibited from spying in the United States itself, and there can be few greater violations of that rule than spying on congressional staff carrying out the constitutional duty of being a check on the CIA’s powers. CIA surveillance of Congress would be another sign that the intelligence community has come to believe that they are above the law, and should get only deference from the other branches of government, not the meaningful oversight that’s required by the Constitution. Checks and balances, especially for agencies like the CIA and NSA that have many secret operations, are essential for democratic government. At the very least, these reports should spur the committee to vote quickly for the declassification and release of its full report into the CIA’s torture program so the American people can see what it is that the CIA is so eager to hide… [emphasis added]

Alleged CIA spying should infuriate all members of the committee and strengthen their conviction that the public has a right to know what is in the report. But does the Senate intelligence committee want to have the torture report declassified? Is the leadership remotely interested in making a version that is not mostly blacked out with redactions available to the public?

Senator Dianne Feinstein, chair of the committee, has not taken the opportunity to make any public comments on the torture report for over a year.

During a hearing she chaired on December 17, 2013, on the nomination of Caroline Krass to the position of CIA general counsel, Feinstein did not address the issue of declassifying the report. She avoided this issue during CIA director John Brennan’s nomination hearing on February 7, 2013. She has put out no press releases related to the report, since it was approved by the committee on December 13, 2012.

In contrast, Senator Mark Udall has pushed for the declassification of the report to the “fullest extent” possible. He has put hold on the nomination of Krass until he gets more information. He put a hold on the confirmation of another individual, Stephen W. Preston, who served as a high-ranking lawyer at the CIA and sought a similar position at the Pentagon. He confronted Brennan during his nomination hearing about the importance of declassifying a version of the torture report.

It is Udall, who sent a letter to President Barack Obama yesterday, which mentioned “unprecedented action” against senators (possibly CIA spying). He urged:

…I strongly believe there should be a public and unequivocal commitment from the White House to the fullest and most expedited possible declassification of the Committee’s Study. Such a commitment is especially vital in light of the fact that the significant amount of information on the CIA’s detention and interrogation program that has been declassified and released to the American public is misleading and inaccurate…

Udall renewed a request for the White House to make a “public statement” on declassification of the torture report (and also expressed concern about a final version of a CIA internal review that the agency is withholding).

A recent government motion to dismiss the ACLU’s FOIA lawsuit indicates quite clearly that whether the report is ultimately declassified or not depends on the Senate intelligence committee that approved the study.

The Report was drafted by SSCI after extensive discussions with the CIA to reach an accommodation that respected both the President’s constitutional authority to protect classified information, and Congress’s constitutional authority to conduct oversight of the Executive. Thus, SSCI and the CIA sought to properly protect both the highly sensitive and compartmented classified information at issue in the Report, information that necessarily came from the CIA; as well as the autonomy and control that SSCI maintained over the drafting, finalization, and dissemination of the Report itself. Id. In order to best protect the highly sensitive and compartmented nature of the voluminous amount of classified information at issue, therefore, the CIA established a secure electronic reading room on CIA premises, and created a segregated network share drive, where designated SSCI personnel could review the highly classified materials and confidentially prepare and store their work product, including initial draft versions of the SSCI Report, in a secure environment.

A June 2, 2009, from Feinstein and the intelligence committee’s vice chairman to the CIA director stated the “draft and final recommendations, reports, or other materials generated by Committee staff” would “remain congressional records.” They would not be CIA records under FOIA or “any other law.” The committee would be in control of any decisions related to having the report reviewed for declassification.

Crucially, this means the report may never be public so long as senators do not want to take the political risk of disclosing a damning report they know will deeply inflame tensions with the CIA.

The leadership’s interest is not the truth. The leadership’s interest is being able to get the CIA to cooperate with it on a daily basis as it conducts what it likes to claim is “oversight.” It may be willing to protect the study from release in return for other concessions from the CIA, such as the provision of information it continues to withhold from the committee (since there is always something it is keeping secret).

This torture report cost 40 million taxpayer dollars and took three years to produce. It is the most comprehensive official account of what happened in a dark chapter of recent US history that, despite some of Obama’s actions, is not entirely over.

It is not over so long as the CIA continues to engage in a coverup and obstruct senators who seek to uncover details on what really happened when they seek out information.

What the committee did in producing the torture report is an atypical example of oversight aimed at curtailing executive power, but it cannot possibly have any meaningful impact if the public never gets to read the details in the report.

Like Udall told The New Yorker’s Jane Mayer, the CIA has not “sufficiently acknowledge[d] the flaws that the committee has meticulously detailed with thirty-five-thousand footnotes in six-thousand-three-hundred pages.”

“Without the right amount of sunshine, some of the problems documented in the study—to include problems that I believe still exist today—will remain uncorrected. The American people have the right to know what the government has done on their behalf.”