Sen. Mark Udall

The Justice Department has reportedly requested that the FBI conduct a criminal investigation into Senate staffers who have been involved in producing a study on the CIA’s rendition, detention and interrogation program, which involved torture.

Time Magazine reported:

The Justice Department has been asked to investigate whether Senate staffers improperly obtained and removed documents from a CIA computer system at a joint facility created by the CIA and the Senate Select Committee on Intelligence (SSCI), TIME has learned.

The CIA general counsel’s office was apparently responsible for asking the Justice Department to investigate. And, subsequently, the Justice Department decided to have the FBI actually start an investigation.

The investigation into Senate staffers appears to be running parallel to whatever is happening with a second investigation CIA Inspector General David Buckley referred to the Justice Department, which basically alleges that the CIA was spying on Senate Select Committee on Intelligence (SSCI) staffers when they were reviewing “millions of classified documents in an electronic reading room in a secret CIA facility in Northern Virginia.”

A filing by the government in a Freedom of Information Act lawsuit by the American Civil Liberties Union (ACLU) outlines the arrangement between the CIA and SSCI so the torture study could be produced:

…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…

But the situation is not just that the staffers did not respect the security arrangements necessary for protecting classified information. According to Senator Mark Udall, the CIA has had a final draft of an internal review that came to conclusions similar to the conclusions in the Senate torture study.

At a Senate intelligence committee hearing on January 29, 2014, on “worldwide threats,” Udall questioned CIA Director John Brennan:

UDALL: Director Brennan, you know the long history of this committee’s study of our detention interrogation programs. I’d like to put my statement in the record that walks us through that — that record, but I did want to focus initially on the CIA internal review, some people call it the Panetta review.

Were you aware of this CIA internal review when you provided the CIA’s official response to this committee in June of last year? I don’t have much time, so I’d appreciate a yes-or-no answer.

BRENNAN: It wasn’t a review, Senator, it was a summary. And at the time, no, I had not gone through it.

UDALL: It strikes me as a bit improbable, given that you knew about the internal review, and you spoke to us and stated that your obligation as the CIA director was to make sure that the CIA’s response was as thorough and accurate as possible.

But, in that context, let me move to the next question, does the information in the internal review contradict any of the positions included in your June 2013 response to the committee?

BRENNAN: Senator, I’d respectfully like to say that I don’t think this is the proper format for that discussion, because our responses to your report were in classified form. And I look forward to addressing these questions with the committee at the appropriate time.

UDALL: Let me make sure I understand. Are you saying that the CIA officers who were asked to produce this internal review got it wrong, just like you’ve said, the committee got it wrong? We had 6,300 pages, 6 million documents, 35,000 footnotes.

BRENNAN: Senator, as you well know, I didn’t say that the committee got it wrong. I said there were things in that report that I disagreed with, there were things in that report that I agreed with. And I look forward to working with the committee on the next steps in that report.

And I stand by my statement. I’m prepared to deal with the committee to make sure that we’re able to address the issue of the detention, rendition [and] interrogation program at the appropriate time.

It’s something Udall raised in a December hearing for CIA General Counsel nominee Caroline Krass. Udall asked Crass why an internal review from years ago was “so different from the CIA’s formal written response to the committee study.”

Udall recently wrote to President Barack Obama and indicated he could place a hold on Krass’ nomination until he received a copy of the CIA’s internal review and a public statement from the White House on the declassification of the study.

Somehow Senate staffers were able to view documents that suggested to them the CIA was hiding a crucial document, this internal review. CIA contractors were determining the universe of documents that the staffers were able to discover this review they wanted to conceal would be a blunder on the part of the CIA.

All that background information leads to the fundamental point: The CIA has not been held accountable for torture. No person in the CIA has been put on trial for authorizing interrogation methods that amounted to torture.

Here’s former CIA general counsel Stephen W. Preston, who is now a top lawyer for the Pentagon, conceding to Udall that the CIA misled (possibly deliberately) the Justice Department:

My understanding is that DOJ did not always have accurate information about the detention and interrogation program in that the actual conduct of that program was not always consistent with the way the program had been described to DOJ. Of particular note, I understand that, in a number of instances, enhanced interrogation techniques, specifically waterboarding, were applied substantially more frequently than previously had been described to DOJ…

Yet, the Justice Department consciously chose not to prosecute current and former government officials. Even though the administration issued an Executive Order intended to discontinue the official use of torture or “enhanced interrogation techniques,” the Obama administration has effectively decriminalized torture. In fact, sleep deprivation and sensory deprivation through drugs that do not cause “permanent derangement” can still be used against detainees.

The investigation into the destruction of CIA torture tapes ended with no charges.

One former CIA officer has gone to prison for a crime related to the CIA’s criminal rendition, detention and interrogation program. That person is John Kiriakou, and he is in a federal correctional institution in Loretto, Pennsylvania, serving a thirty-month sentence for confirming the name of an individual involved in renditions to a reporter.

The federal government actually began to investigate him when he unwittingly became a part of an effort by a group of human rights attorneys to identify individuals who may have tortured detainees at the Guantanamo Bay prison camps so cases could be brought against those individuals.

As Udall sees it, “The CIA tried to intimidate the Intelligence Committee, plain and simple.” Having your name provided to the FBI for investigation is part of that intimidation.

People in government who are investigated for anything remotely related to torture are the ones who play a role in the effort to expose the truth of what the agency did after the September 11th attacks.

Anyone in government who fights for transparency, tries to complete an investigation because they believe in accountability or confirms details to a reporter because the CIA is doing everything it can to suppress this 6,300-page report will likely become the target of a criminal investigation.

It is not the torturers and those who authorized torture who have to worry about risks to their careers. It is the people who offend secrecy and order in government by actually pursuing the truth, who must be concerned about never being able to work in Washington, DC, again.