[Congressional Record Volume 160, Number 40 (Tuesday, March 11, 2014)]
[Senate]
[Pages S1487-S1491]
CIA DETENTION AND INTERROGATION REPORT
Mrs. FEINSTEIN. Good morning.
Mr. President, over the past week there have been numerous press
articles written about the intelligence committee's oversight review of
the detention and interrogation program of the CIA.
Specifically, press attention has focused on the CIA's intrusion and
search of the Senate select committee's computers, as well as the
committee's acquisition of a certain internal CIA document known as the
Panetta review.
I rise today to set the record straight and to provide a full
accounting of the facts and history.
Let me say up front that I come to the Senate floor reluctantly.
Since January 15, 2014, when I was informed of the CIA's search of this
committee's network, I have been trying to resolve this dispute in a
discreet and respectful way. I have not commented in response to media
requests for additional information on this matter. However, the
increasing amount of inaccurate information circulating now cannot be
allowed to stand unanswered.
The origin of this study.
[[Page S1488]]
The CIA's detention and interrogation program began operations in
2002, though it was not until September 2006 that members of the
intelligence committee, other than the chairman and the vice chairman,
were briefed. In fact, we were briefed by then-CIA Director Hayden only
hours before President Bush disclosed the program to the public.
A little more than a year later, on December 6, 2007, a New York
Times article revealed the troubling fact that the CIA had destroyed
videotapes of some of the CIA's first interrogations using so-called
enhanced techniques. We learned that this destruction was over the
objections of President Bush's White House counsel and the Director of
National Intelligence.
After we read about the destruction of the tapes in the newspapers,
Director Hayden briefed the Senate intelligence committee. He assured
us that this was not destruction of evidence, as detailed records of
the interrogations existed on paper--in the form of CIA operational
cables describing the detention conditions and the day-to-day CIA
interrogations.
The CIA Director stated that these cables were ``a more than adequate
representation'' of what would have been on the destroyed tapes.
Director Hayden offered at that time, during Senator Jay Rockefeller's
chairmanship of the committee, to allow members or staff to review
these sensitive CIA operational cables, given that the videotapes had
been destroyed.
Chairman Rockefeller sent two of his committee staffers out to the
CIA on nights and weekends to review thousands of these cables, which
took many months. By the time the two staffers completed their review
into the CIA's early interrogations in early 2009, I had become
chairman of the committee and President Obama had been sworn into
office.
The resulting staff report was chilling. The interrogations and the
conditions of confinement at the CIA detention sites were far different
and far more harsh than the way the CIA had described them to us. As a
result of the staff's initial report, I proposed and then Vice Chairman
Bond agreed, and the committee overwhelmingly approved, that the
committee conduct an expansive and full review of the CIA's detention
and interrogation program.
On March 5, 2009, the committee voted 14 to 1 to initiate a
comprehensive review of the CIA detention and interrogation program.
Immediately, we sent a request for documents to all relevant executive
branch agencies, chiefly among them the CIA.
The committee's preference was for the CIA to turn over all
responsive documents to the committee's office, as had been done in
previous committee investigations.
Director Panetta proposed an alternative arrangement: to provide,
literally, millions of pages of operational cables, internal emails,
memos, and other documents, pursuant to the committee's document
requests at a secure location in northern Virginia. We agreed but
insisted on several conditions and protections to ensure the integrity
of this congressional investigation.
Per an exchange of letters in 2009, then-Vice Chairman Bond, then-
Director Panetta, and I agreed--in an exchange of letters--that the CIA
was to provide a ``stand-alone computer system'' with a ``network drive
. . . segregated from CIA networks'' for the committee that would only
be accessed by information technology personnel at the CIA, who would
``not be permitted to'' ``share information from the system with other
[CIA] personnel, except as otherwise authorized by the committee.''
It was this computer network, notwithstanding our agreement with
Director Panetta, that was searched by the CIA this past January, and
once before, which I will later describe.
In addition to demanding that the documents produced for the
committee be reviewed at a CIA facility, the CIA also insisted on
conducting a multilayered review of every responsive document before
providing the document to the committee. This was to ensure the CIA did
not mistakenly provide documents unrelated to the CIA's detention and
interrogation program--or provide documents that the President could
potentially claim to be covered by executive privilege.
While we viewed this as unnecessary, and raised concerns that it
would delay our investigation, the CIA hired a team of outside
contractors--who otherwise would not have had access to these sensitive
documents--to read, multiple times, each of the 6.2 million pages of
documents produced, before providing them to fully cleared committee
staff conducting the committee's oversight work. This proved to be a
slow and very expensive process.
The CIA started making documents available electronically to the
committee staff at the CIA-leased facility in mid-2009. The number of
pages ran quickly to the thousands, the tens of thousands, the hundreds
of thousands, and then into the millions. The documents that were
provided came without any index, without any organizational structure.
It was a true ``document dump'' that our committee staff had to go
through and make sense of.
In order to piece together the story of the CIA's detention and
interrogation program, the committee staff did two things that will be
important as I go on.
First, they asked the CIA to provide an electronic search tool so
they could locate specific relevant documents for their search among
the CIA-produced documents--just like you would use a search tool on
the Internet to locate information.
Second, when the staff found a document that was particularly
important or that might be referenced in our final report, they would
often print it or make a copy of the file on their computer so they
could easily find it again. There are thousands of such documents in
the committee's secure spaces at the CIA facility.
Now, prior removal of documents by the CIA.
In early 2010, the CIA was continuing to provide documents, and the
committee staff was gaining familiarity with the information it had
already received.
In May of 2010, the committee staff noticed that the documents that
had been provided for the committee's review were no longer accessible.
Staff approached the CIA personnel at the off-site location, who
initially denied the documents had been removed. CIA personnel then
blamed information technology personnel, who were almost all
contractors, for removing the documents themselves without direction or
authority. Then the CIA stated that the removal of the documents was
ordered by the White House. When the committee approached the White
House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA
personnel electronically removed committee access to CIA documents
after providing them to the committee. This included roughly 870
documents--or pages of documents--that were removed in February 2010
and, secondly, roughly another 50 that were removed in mid-May
2010. This was done without the knowledge or approval of committee
members or staff and in violation of our written agreements.
Further, this type of behavior would not have been possible had the
CIA allowed the committee to conduct the review of documents here in
the Senate. In short, this was the exact sort of CIA interference in
our investigation that we sought to avoid at the outset.
I went to the White House to raise the issue with the then-White
House counsel. In May 2010 he recognized the severity of the situation
and the grave implications of executive branch personnel interfering
with an official congressional investigation. The matter was resolved
with a renewed commitment from the White House counsel and the CIA 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.
On May 17, 2010, the CIA's then-Director of Congressional Affairs
apologized on behalf of the CIA for removing the documents. And that,
as far as I was concerned, put the incident aside. This event was
separate from the documents provided that were part of the internal
Panetta review which occurred later, and which I will describe next.
At some point in 2010, committee staff searching the documents that
had been made available found draft versions of what is now called the
internal Panetta review. We believe
[[Page S1489]]
these documents were written by CIA personnel to summarize and analyze
the materials that had been provided to the committee for its review.
The Panetta review documents were no more highly classified than other
information we had received for our investigation. In fact, the
documents appeared based on the same information already provided to
the committee.
What was unique and interesting about the internal documents was not
their classification level but, rather, their analysis and
acknowledgment of significant CIA wrongdoing. To be clear, the
committee staff did not hack into CIA computers to obtain these
documents, as has been suggested in the press. The documents were
identified using the search tool provided by the CIA to search the
documents provided to the committee. We have no way to determine who
made the internal Panetta review documents available to the committee.
Further, we do not know whether the documents were provided
intentionally by the CIA, unintentionally by the CIA, or intentionally
by a whistleblower. In fact, we know that over the years on multiple
occasions the staff have asked the CIA about documents made available
for our investigation. At times the CIA has simply been unaware that
these specific documents were provided to the committee. And while this
is alarming, it is also important to note that more than 6.2 million
pages of documents have been provided. This is simply a massive amount
of records. As I described earlier, as part of its standard process for
reviewing records, the committee staff printed copies of the internal
Panetta review and made electronic copies of the committee's computers
at the facility. The staff did not rely on these internal Panetta
review documents when drafting the final 6,300-page committee study.
But it was significant that the internal Panetta review had documented
at least some of the very same troubling matters already uncovered by
the committee staff, which is not surprising in that they were looking
at the same information.
There is a claim in the press and elsewhere that the marks on these
documents should have caused the staff to stop reading them and turn
them over to the CIA. I reject that claim completely. As with many
other documents provided to the committee at the CIA facility, some of
the internal Panetta review documents--some--contained markings
indicating that they were ``deliberative'' and/or ``privileged.'' This
was not especially noteworthy to staff. In fact, CIA has provided
thousands of internal documents to include CIA legal guidance and
talking points prepared for the CIA Director, some of which were marked
as being ``deliberative'' or ``privileged.''
Moreover, the CIA has officially provided such documents to the
committee here in the Senate. In fact, the CIA's official June 27, 2013
response to the committee study which Director Brennan delivered to me
personally is labeled ``deliberative process, privileged document.''
We have discussed this with the Senate legal counsel who has
confirmed that Congress does not recognize these claims of privilege
when it comes to documents provided to Congress for our oversight
duties. These were documents provided by the executive branch pursuant
to an authorized congressional oversight investigation, so we believe
we had every right to review and keep the documents.
There are also claims in the press that the Panetta internal review
documents, having been created in 2009 and 2010, were outside the date
range of the committee's document request or the terms of the committee
study. This, too, is inaccurate. The committee's document requests were
not limited in time. In fact, as I have previously announced, the
committee study includes significant information on the May 2011 Osama
bin Laden operation, which obviously postdated the detention
and interrogation program.
At some time after the committee staff identified and reviewed the
internal Panetta review documents, access to the vast majority of them
was removed by the CIA. We believe this happened in 2010, but we have
no way of knowing the specifics, nor do we know why the documents were
removed. The staff was focused on reviewing the tens of thousands of
new documents that continue to arrive on a regular basis.
Our work continued until December 2012 when the Intelligence
Committee approved a 6,300-page committee study of the CIA's detention
and interrogation program and sent the executive report to the
executive branch for comment. The CIA provided its response to the
study on June 27, 2013.
As CIA Director Brennan has stated, the CIA officially agrees with
some of our study, but, as has been reported, the CIA disagrees and
disputes important parts of it. And this is important. Some of these
important parts the CIA now disputes in our committee study are clearly
acknowledged in the CIA's own internal Panetta review. To say the
least, this is puzzling. How can the CIA's official response to our
study stand factually in conflict with its own internal review?
Now after noting the disparity between the official CIA response to
the committee study and the internal Panetta review, the committee
staff securely transported a printed portion of the draft internal
Panetta review from the committee's secure room at the CIA-leased
facility to the secure committee spaces in the Hart Senate office
building. And let me be clear about this. I mentioned earlier the
exchange of letters that Senator Bond and I had with Director Panetta
in 2009 over the handling of information for his review. The letters
set out a process whereby the committee would provide specific CIA
documents to CIA reviewers before bringing them back to our secure
offices here on Capitol Hill.
The CIA review was designed specifically to make sure that committee
documents available to all staff and members did not include certain
kinds of information, most importantly the true names of nonsupervisory
CIA personnel and the names of specific countries in which the CIA
operated detention sites. We had agreed upfront that our report didn't
need to include this information, and so we agreed to redact it from
materials leaving the CIA's facility.
In keeping with the spirit of the agreements, the portion of the
internal Panetta review at the Hart building in our safe has been
redacted. It does not contain names of nonsupervisory CIA personnel or
information identifying detention site locations. In other words, our
staff did just what the CIA personnel would have done had they reviewed
the documents.
There are several reasons why the draft summary of the Panetta review
was brought to our secure spaces at the Hart building. Let me list
them: No. 1, the significance of the internal review, given disparities
between it and the June 2013 CIA response to the committee's study. The
internal Panetta review summary, now at the secure committee office in
Hart, is an especially significant document, as it corroborates
critical information in the committee's 6,300-page study that the CIA's
official response either objects to, denies, minimizes, or ignores.
Unlike the official response, these Panetta review documents were in
agreement with the committee's findings. That is what makes them so
significant and important to protect.
When the internal Panetta review documents disappeared from the
committee's computer system, this suggested once again that the CIA had
removed documents already provided to the committee in violation of CIA
agreements and White House assurances that the CIA would cease such
activities.
As I have detailed, the CIA has previously withheld and destroyed
information about its detention and interrogation program, including
its decision in 2005 to destroy interrogation videotapes over the
objections of the Bush White House and the Director of National
Intelligence. Based on the above, there was a need to preserve and
protect the internal Panetta review in the committee's own secure
spaces. The relocation of the internal Panetta review was lawful and
handled in a manner consistent with its classification. No law prevents
the relocation of a document in the committee's possession from a CIA
facility to secure committee offices on Capitol Hill. As I mentioned
before, the document was handled and transported in a manner consistent
with its classification, redacted appropriately, and it remained secure
with restricted access in committee spaces.
[[Page S1490]]
Now the January 15, 2014, meeting with Director John Brennan. In late
2013, I requested in writing that the CIA provide a final and complete
version of the internal Panetta review to the committee, as opposed to
the partial document the committee currently possesses.
In December, during an open committee hearing, Senator Mark Udall
echoed this request. In early January 2014, the CIA informed the
committee it would not provide the internal Panetta review to the
committee citing the deliberative nature of the document.
Shortly thereafter, on January 15, 2014, CIA Director Brennan
requested an emergency meeting to inform me and Vice Chairman Chambliss
that without prior notification or approval, CIA personnel had
conducted a ``search''--that was John Brennan's word--of the committee
computers at the offsite facility. This search involved not only a
search of documents provided by the committee to the CIA but also a
search of the stand-alone and walled-off committee network drive
containing the committee's own internal work product and
communications.
According to Brennan, the computer search was conducted in response
to indications that some members of the committee staff might already
have had access to the internal Panetta review. The CIA did not ask the
committee or its staff if the committee had access to the internal
Panetta review or how we obtained it.
Instead, the CIA just went and searched the committee's computers.
The CIA has still not asked the committee any questions about how the
committee acquired the Panetta review. In place of asking any
questions, the CIA's unauthorized search of the committee computers was
followed by an allegation--which we have now seen repeated anonymously
in the press--that the committee staff had somehow obtained the
document through unauthorized or criminal means, perhaps to include
hacking into the CIA's computer network.
As I have described, this is not true. The document was made
available to the staff at the offsite facility and it was located using
a CIA-provided search tool running a query of the information provided
to the committee pursuant to its investigation.
Director Brennan stated that the CIA search had determined that the
committee staff had copies of the internal Panetta review on the
committee staff's shared drive and had accessed them numerous times. He
indicated at the meeting that he was going to order further forensic
investigation of the committee network to learn more about activities
of the committee's oversight staff.
Two days after the meeting, on January 17, I wrote a letter to
Director Brennan objecting to any further CIA investigation due to the
separation of powers constitutional issues that the search raised. I
followed this with a second letter on January 23 to the Director,
asking 12 specific questions about the CIA's actions--questions that
the CIA has refused to answer.
Some of the questions in my letter related to the full scope of the
CIA's search of our computer network. Other questions related to who
had authorized and conducted the search and what legal basis the CIA
claimed gave it authority to conduct the search. Again, the CIA has not
provided answers to any of my questions.
My letter also laid out my concern about the legal and constitutional
implications of the CIA's actions. Based on what Director Brennan has
informed us, I have grave concerns that the CIA's search may well have
violated the separation of powers principles embodied in the U.S.
Constitution, including the speech and debate clause. It may have
undermined the constitutional framework essential to effective
congressional oversight of intelligence activities or any other
government function. I have asked for an apology and a recognition that
this CIA search of computers used by its oversight committee was
inappropriate. I have received neither. Besides the constitutional
implication, the CIA's search may also have violated the Fourth
Amendment, the Computer Fraud and Abuse Act, as well as Executive Order
12333, which prohibits the CIA from conducting domestic searches or
surveillance.
Days after the meeting with Director Brennan, the CIA inspector
general David Buckley learned of the CIA search and began an
investigation into the CIA's activities. I have been informed that Mr.
Buckley has referred the matter to the Department of Justice given the
possibility of a criminal violation by CIA personnel.
Let me note, because the CIA has refused to answer the questions in
my January 23 letter and the CIA inspector general is ongoing, I have
limited information about exactly what the CIA did in conducting its
search.
Weeks later, I was also told that after the inspector general
referred the CIA's activities to the Department of Justice, the acting
counsel general of the CIA filed a crimes report with the Department of
Justice concerning the committee staff's actions.
I have not been provided the specifics of these allegations or been
told whether the Department has initiated a criminal investigation
based on the allegations of the CIA's acting general counsel.
As I mentioned before, our staff involved in this matter have the
appropriate clearances, handled this sensitive material according to
established procedures and practice to protect classified information,
and were provided access to the Panetta review by the CIA itself. As a
result there is no legitimate reason to allege to the Justice
Department that the Senate staff may have committed a crime. I view the
acting counsel general's referral as a potential effort to intimidate
this staff, and I am not taking it lightly.
I should note that 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. From mid-2004 until the official
termination of the detention and interrogation program in January of
2009, he was the unit's chief lawyer. He is mentioned by name more than
1,600 times in our study.
Now this individual is sending a crimes report to the Department of
Justice 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 Department of Justice about the program.
Let me say this: All Senators rely on their staff to be their eyes
and ears and to carry out our duties. The staff members of the
intelligence committee are dedicated professionals who are motivated to
do what is best for our Nation. The staff members who have been working
on this study and this report have devoted years of their lives to it,
wading through the horrible details of a CIA program that never, never,
never should have existed.
They have worked long hours and produced a report unprecedented in
its comprehensive attention to detail in the history of the Senate.
They are now being threatened with legal jeopardy just as the final
revisions to the report are being made so parts of it can be
declassified and released to the American people.
I felt I needed to come to the floor to correct the public record and
to give the American people the facts about what the dedicated
committee staff have been working so hard on for the last several years
as part of the committee's investigation.
I also want to reiterate to my colleagues my desire to have all
updates to the committee report completed this month and approved for
declassification. We are not going to stop. I intend to move to have
the findings, conclusions, and the executive summary of the report sent
to the President for declassification and release to the American
people. The White House has indicated publicly--and to me personally--
that it supports declassification and release. If the Senate can
declassify this report, we will be able to ensure that an un-American,
brutal program of detention and interrogation will never again be
considered or permitted.
The recent actions I have just laid out make this a defining moment
for the oversight of our intelligence committee. How this will be
resolved will show whether the intelligence committee can be effective
in monitoring
[[Page S1491]]
and investigating our Nation's intelligence activities or whether our
work can be thwarted by those we oversee.
I believe it is critical that the committee and the Senate reaffirm
our oversight role and our independence under the Constitution of the
United States.
I thank the Presiding Officer for his patience, and I yield the
floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, while the distinguished Senator from
California is on the floor, I will tell her through the Chair that I
have had the privilege of serving in this body for 40 years. I have
heard thousands of speeches on this floor. I cannot think of any speech
by any Member of either party as important as the one the Senator from
California just gave.
What she is saying is that if we are going to protect the separation
of powers and the concept of congressional oversight, then she has
taken the right steps to do that.
The very first vote I cast in this body was for the Church Committee,
which examined the excesses of the CIA and other agencies--everything
from assassinations to spying on those who were protesting the war in
Vietnam. There was a famous George Tames picture, where then-chairman
of the Armed Services Committee John Stennis was berating Senator Frank
Church for proposing this committee. He said that he, Senator Stennis,
could find out what he wanted to find out but didn't really want to
know everything.
I was standing behind George Tames when he took that picture in my
first caucus. There is pressure on the junior Members--and I was the
most junior Member of the Senate at that time--not to vote for the
Church Committee.
Senator Mike Mansfield said to me--as did Senator Fritz Mondale and
others--that the Senate is bigger than any one Senator. We come and go,
but the Senate lasts. If we do not stand up for the protection of the
separation of powers and our ability to do oversight--especially when
conduct has happened that is, in all likelihood, criminal conduct on
the part of a government agency--then what do we stand for? We are
supposed to be the conscience of the Nation.
The Senator from California, Mrs. Feinstein, has spoken to our
conscience--to every one of the 100 Senators, men and women, of both
parties. She has spoken to our conscience. Now let's stand up for this
country. Let's stand up as the Senate should and as the Senator from
California has.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________
[Congressional Record Volume 160, Number 40 (Tuesday, March 11, 2014)]
[Senate]
[Page S1491]
COMMENDING SENATOR FEINSTEIN
Mr. REID. Mr. President, I wish to take a minute to commend Senator
Dianne Feinstein. There is not a more dignified, competent Senator in
this body than Dianne Feinstein. She works tireless hours leading the
Intelligence Committee. It is a very difficult job, always away from
the press, one that is very important to our country.
Her statement outlined I believe one of most important principles we
must maintain; that is, separation of powers. The Founding Fathers were
visionary in creating this great government of ours, three separate but
equal branches of government: executive, judicial, and legislative.
Her statement today pronounced, in a very firm fashion, that must
continue, that separation of powers. The work the committee has done
over the last many years dealing with what went on in the prior
administration is imperative.
I do not know much of the details as to what they are working on, but
I know what they have been working on generally. I admire what she has
done and the committee has done, and especially her statement today was
one of courage and conviction. We know, those of us who have worked
with her over the years, that no one has more courage and conviction
than Dianne Feinstein.
Mr. CARDIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Booker). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
