“Despite the frequency of misguided practices and policies” within particular agencies, like the CIA, in the “national security” area of government, there are often very few whistleblowers. Abuses remain “well-concealed” even though they relate to “gravely wrongful or dangerous policies.”
This is what Pentagon Papers whistleblower Daniel Ellsberg has previously written. He’s also described how there is an “apparatus of secrecy” in government, which works to conceal from Americans, the Congress, the courts, “policy errors, recklessness, violation of domestic and international law, deception, crimes, corruption in various forms, questionable or disastrous judgment, responsibility for catastrophes,” etc.
The conduct of the CIA over the past four to five years, which has been a response to the Senate Select Committee on Intelligence’s efforts to produce a study on the agency’s post-9/11 rendition, detention and interrogation program, is indicative of an agency working to prevent the public from understanding the full scope of abuses and misconduct committed when it came to a program that involved the torture of terrorism suspects. These actions are the epitome of what Ellsberg believes whistleblowers should come forward and reveal to the public.
As the Washington Post noted, “The bulk of the research was completed more than a year ago, yielding a report by the Senate Intelligence Committee that amounts to a damning chronicle of that CIA program. But the struggle to shape whether and how that history is presented to the public has triggered a fight between the CIA and the committee over what happened behind that locked door.”
In the course of producing the study, Senate staffers came across documents from a review by former CIA director Leon Panetta that was apparently initiated to summarize a good portion of the 6.2 million documents that would be provided to the committee for their investigation.
This “Panetta review” allegedly shows that the CIA has been disingenuous in its response to the committee’s completed study, which the senators must reconcile with before they can proceed with declassifying the findings in the study. The “Panetta review” is said to draw many of the conclusions about the CIA’s program that they now dispute.
The CIA found out that Senate staffers had obtained a copy of documents from this “Panetta review” and began a search to figure out how this had happened.
“This search,” according to scathing remarks from Senator Dianne Feinstein, “involved not only a search of documents provided to the committee but also a search of the standalone and walled off committee network drive containing the committee’s own internal work product and communications.” CIA Director John Brennan also then ordered “further forensic investigation of the committee network to learn more about activities of the oversight staff.”
The CIA also removed electronic documents from a database of millions of documents that staffers were accessing from an offsite facility in northern Virginia.
Feinstein argued that what the CIA had done, in violation of agreements to not interfere with the staffers’ work, likely amounted to a violation of the separation of powers principles in the US Constitution, the Fourth Amendment, the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits domestic spying by the CIA.
Staffers did print off documents from this “Panetta review.” Feinstein said they redacted portions of it to protect the identities of non-supervisory CIA personnel and also where detention sites had been located. The staffers then took the copies to the Hart Senate Office Building, where they secured it so the CIA could not destroy the review like they had destroyed videotapes of interrogations. (This was entirely lawful in Feinstein’s opinion and within the parameters of conducting oversight.)
As an indication of how this upset the agency, Robert Eatinger, acting general counsel for the CIA, referred allegations that the staffers had engaged in the “unauthorized removal” of documents to the Justice Department for a criminal investigation. However, as Feinstein explained, Eatinger had an interest in ensuring that the Justice Department looked into what the staffers had done because he is named over a thousand times in the study.
“For most if not all of the CIA’s detention and interrogation program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center, the unit within which the CIA managed and carried out this program,” Feinstein explained. “From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study and now this individual is sending a crimes report to the Justice Department on the actions of congressional staff, the same congressional staff who researched and drafted a report that details how CIA officers including the acting general counsel himself provided inaccurate information to the Justice Department about the program.”
To Feinstein, this decision to refer allegations was clearly an act of intimidation against senators and their staff for daring to take on the CIA in an effort to release a study that contains the truth and is not diluted by CIA statements that are inaccurate and deliberately misleading.
Jonathan Turley, a Georgetown Law professor, highlighted Eatinger’s role in the destruction of videotapes:
In 2005, the CIA destroyed videotapes of brutal interrogations of detainees. Eatinger had been one of two lawyers to approve their destruction. As I expressed at the time, it was astonishing that no one was disciplined let alone prosecuted for the destruction of the evidence. One official admitted that the CIA wanted to destroy evidence that could be used in their own criminal prosecution. Instead of being prosecuted, people like Eatinger were promoted.
Eatinger informed Jose Rodriguez, head of the Counterterrorism Center, that he was not legally barred from destroying the videotapes.
His “career speaks volumes about the lack of serious deterrent or accountability among intelligence officials. He is the very personification of an intelligence community that has become dangerously independent and unchecked. It was only a matter of time before that sense of impunity would result in the agency defying Congress itself,” Turley wrote.
“The latest scandal shows the sense of absolute immunity enjoyed by intelligence officials — that sense is the result of years of acquiescence and passivity by Congress and the courts,” Turley added. “If Eatinger is denounced as the manifestation of the arrogance in the intelligence community, Congress has been the enabler of such attitudes. Even in the face of perjury, Congress (and specifically Feinstein’s committee) has looked the other way and scrupled efforts to investigate.”
Notably, Turley explained that government lawyers could work in “areas of conflicts” if they had a waiver. He wondered if Eatinger obtained some kind of a waiver from Brennan because he would have known that the conclusions of the committee’s report would implicate Eatinger. If a waiver was granted so Eatinger could forward allegations against staffers to the Justice Department, this would be poor judgment on the part of Brennan.
It was news media reports containing allegations from anonymous officials against staffers who had diligently worked to complete the study, which drove Feinstein to deliver her remarks on the Senate floor and go public with details of how the CIA had acted to interfere and intimidate the committee. But, this spat would have become known eventually because Brennan refused to give the committee the final draft of the “Panetta review.”
President Barack Obama has told the committee to get the finalized report to him soon so it can be declassified and released to the public.
There are questions as to whether the White House has worked against the committee in service to the CIA. It has, as McClatchy reported, withheld “more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation” for over five years. And the White House has “ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records,” even though an official claim of “executive privilege” has not been made.
Altogether, the reaction to the Senate intelligence committee’s efforts has been indicative of secret government that has grown unaccountable. Its malignant nature has grown vastly out of control because Congress has permitted it to grow without properly challenging it in the past decade.
It is a part of a battle over what history will remain untold. The true history of torture cannot become undisputed official US history by being declassified in a Senate report because it will threaten a select group of individuals—former CIA director Michael Hayden, former acting CIA general counsel John Rizzo, former Vice President Dick Cheney, Rodriguez and others who go around sharing their skewed ideological version of what happened benefiting of secrecy and the fact that the public cannot call their accounts into question.
Like Sen. Jay Rockefeller (D-W.Va.), a member of the intelligence committee, told The Hill on Wednesday,”As our 6,300 pages show, there’s a hell of a lot lying going on, to the White House, to everybody. The substance of this thing is so deep and so wide and so unknown to the American people.”