By Jonathan S. Landay and Marisa Taylor
WASHINGTON — Five CIA personnel involved in searching computers used by Senate staffers to compile a scathing report on the torture of detainees didn’t break the law, had good reasons to conduct the searches and shouldn’t be penalized, said an agency accountability board report released on Wednesday.
The findings contradicted those of the CIA Inspector General’s Office and charges by former Senate Intelligence Committee Chairwoman Dianne Feinstein that the searches possibly violated the law and the Constitution, casting in an awkward light an apology for the intrusions made by CIA Director John Brennan in July.
While it only reviewed the CIA’s conduct, the board implied that it was Feinstein’s staffers who violated CIA guidelines governing the use of the computers by accessing highly classified, “privileged” agency documents that they were not authorized to have.
“The board found that no discipline was warranted for the five CIA personnel under review because they acted reasonably under the complex and unprecedented circumstances involved in investigating a potential security breach in the highly classified shared computer network, while also striving to maintain the sanctity of the (committee) work product,” said retired Democratic Sen. Evan Bayh of Indiana, who chaired the accountability board.
Feinstein rejected the conclusions of the board, which also included current and former CIA officers.
“The CIA’s actions constituted a violation of the constitutional separation of powers” and prompted the agency to seek a Justice Department investigation into the alleged unauthorized removal by committee staffers of top-secret documents from a CIA facility, said Feinstein.
“I’m disappointed that no one at the CIA will be held accountable,” Feinstein, D-Calif., said in a statement. “The decision was made to search committee computers, and someone should be found responsible for those actions.”
The accountability board findings appeared to draw to a close without a final resolution the most damaging battle ever fought between the CIA and the Senate Intelligence Committee over the powers of the spy agency’s congressional overseers.
The Justice Department last year declined to open an criminal investigation of the CIA computer intrusions – the subject of a crimes report by CIA Inspector General David Buckley – and the CIA’s allegations of unauthorized document removals by Feinstein’s staff. Meanwhile, the Senate Sergeant at Arms office, the chamber’s law enforcement unit, reportedly closed a probe of the alleged unauthorized document removals.
The battle fueled unprecedented tensions between the Democrats – who ran the committee until the Republicans took control of the Senate last week – and the CIA over the panel’s four-year investigation of the agency’s use of waterboarding and other brutal interrogation techniques on suspected terrorists during the Bush administration.
The review’s declassified executive summary released last month found that the interrogation procedures produced no effective intelligence and that the CIA misled the Bush administration, the Congress and the public over the program’s value. The CIA, former senior agency officials and former Bush administration officials rejected those conclusions.
The controversy over the computer intrusions erupted after Democratic committee members demanded in November 2013 that the CIA turn over to the panel documents collectively dubbed the Panetta Review after former CIA Director Leon Panetta. The Democrats contended that the documents contradicted the CIA’s official rejection of the conclusions of the committee’s torture report.
The CIA refused to provide the documents. It asserted that they were summaries of top-secret cables, emails and other materials that the panel already possessed and contained unofficial, personal notes and observations by CIA personnel that hadn’t been officially vetted.
CIA personnel responsible for computer security in January 2014 twice searched the computers used by the committee to determine if the Senate staffers accessed the Panetta documents without authorization. The materials were “deemed privileged, and not part of the SSCI (Senate Select Committee on Intelligence) review,” said the accountability board’s 38-page report.
Moreover, there was no formal security agreement with the committee prohibiting such searches, said the board, and the CIA personnel were obligated by law to ensure that the computer system was secure and not compromised.
Finally, it said, a sign-on page warned the staffers that by using the machines “they consent to monitoring and recording and unauthorized use is prohibited and subject to civil and criminal penalties.”
The searches, which were limited only to those documents and not to the committee’s “work product,” found the Panetta documents on the committee’s side of the computer network. The findings were briefed to Brennan, who ordered the CIA personnel to determine if the staffers had accessed the documents, printed them out and taken them to the committee’s Capitol Hill offices.
A CIA contractor employee involved in the searches theorized that the staff had obtained the documents because of a faulty Google search engine. But, the board said, he was unable to test his theory because Brennan ordered an end to the searches and proposed a joint investigation with the committee. That investigation never took place.
However, Brennan’s “stand down” order wasn’t received “in a timely fashion” by other CIA security personnel who conducted a third search of the computers that resulted in “inappropriate access” of five committee staff emails, “none of any consequence,” the board continued.
In a scathing Senate floor speech in March, Feinstein charged that the searches violated an agreement under which only CIA technicians were allowed to access the committee’s side of the computer system used by the staff to review more than 6 million pages of classified documents on the interrogation program.
The board, however, said that it found no “evidence of a ‘Common Understanding’ that would have prevented (CIA personnel) from looking on the SSCI side of the RDINet for the presence of CIA documents – highly classified and sensitive documents SSCI was not entitled to access.”
The board faulted Buckley for asking the Justice Department to investigate whether the CIA personnel who’d searched the computers had violated federal laws on wire-tapping and computer fraud. The searches were authorized and routine, and the committee staff had previously asked for CIA assistance on some occasions in searching their data base, the board said.
A person familiar with the panel’s internal deliberations said that the “root of the problem was the complicated and very sensitive relationship between the CIA and the Senate” over the use of the computer network.
The person, who requested anonymity because he wasn’t authorized to speak publicly, said the board found no evidence that CIA personnel had ignored the constitutional separation of powers between the executive branch and Congress.
“I just don’t think the record supports the view that there is anything like contempt here,” the person said, adding that those who conducted the searches were trying to “find out about a potential security incident but having to do so in a way that respected Senate equities. The board did not find any evidence of indifference or contempt.”
The board didn’t investigate breaches of the staff computers in May 2010 in which the agency “unilaterally removed 926 documents” because of concerns they were covered by executive privilege.
The person familiar with the board’s internal deliberations said that the panel hadn’t been tasked by Brennan to examine those incidents.