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Friday, December 9, 2016

By Jonathan S. Landay, Ali Watkins and Marisa Taylor, McClatchy Washington Bureau

WASHINGTON — The White House has been withholding for five years more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation into the now-defunct CIA detention and interrogation program, even though President Barack Obama hasn’t exercised a claim of executive privilege.

In contrast to public assertions that it supports the committee’s work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records, a McClatchy investigation has found.

The significance of the materials couldn’t be learned. But the administration’s refusal to turn them over or to agree to any compromise raises questions about what they would reveal about the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists in secret overseas prisons.

The dispute indicates that the White House is more involved than it has acknowledged in the unprecedented power struggle between the committee and the CIA, which has triggered charges that the agency searched the panel’s computers without authorization and has led to requests to the Justice Department for criminal investigations of CIA personnel and Senate aides.

“These documents certainly raise the specter that the White House has been involved in stonewalling the investigation,” said Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School.

The committee and the CIA declined to comment.

In a statement to McClatchy, the White House confirmed that “a small percentage” of the 6.2 million pages of documents provided to the committee were “set aside because they raise executive branch confidentiality interests.”

The White House also said that it had worked closely with the committee “to ensure access to the information necessary to review the CIA’s former program.”

Speaking to reporters earlier during a White House event, Obama said that the administration has worked with the committee to ensure that its study is “well informed” and that he was committed to seeing the report declassified once a final version is completed. He said it wouldn’t be proper for him to comment directly on the battle between the CIA and the committee, except to say that CIA Director John Brennan had referred the issues to the “appropriate authorities and they are looking into it.”

The Democrat-controlled committee has largely kept silent about the tussle with the White House, even as some members have decried what they contend has been the CIA’s refusal to surrender key materials on the agency’s use under the George W. Bush administration of interrogation methods denounced by the panel chairwoman as “un-American” and “brutal.”

The chairwoman, Sen. Dianne Feinstein of California, made no mention of the White House documents during a blistering floor speech Tuesday in which she charged that the CIA may have undermined the Constitution and violated the law by searching computers used by her staff to compile the study. Brennan has denied her allegations and the White House has expressed continued confidence in his leadership of the CIA.

In question are some 9,400 documents that came to the committee’s attention in 2009, McClatchy has learned. It’s unclear whether the CIA first gave the committee staff access to the materials before the White House withheld them.

Obama, however, still hasn’t formally decreed that the documents are protected by executive privilege, McClatchy learned. Although the doctrine isn’t mentioned explicitly in the Constitution, the Supreme Court in 1974 recognized a limited power by the White House to withhold certain communications between high officials and close aides who advise and assist them.

The withholding of the documents “may not be a smoking gun” proving White House obstructionism, said Goitein, a former Senate Judiciary Committee legal adviser.

Among the other explanations: The White House might have determined that the documents are not relevant to the inquiry or that they are indeed covered by executive privilege but that the president has not yet been forced to assert the claim, she said.