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Despite Vows Of Help, White House Withholds Thousands Of Documents From Senate CIA Probe

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.

“The most nefarious explanation is that they are not privileged and the White House simply doesn’t want to hand them over,” Goitein said. “Executive privilege is generally asserted after negotiations and brinksmanship behind the scenes. People put on paper what they want to be formalized, and these negotiations by their very nature are very informal.”

The committee, the CIA and the White House have held periodic talks on the materials since 2009. Their apparent failure to resolve the standoff prompted Feinstein to write several letters last year to Obama’s chief legal adviser, Kathryn Ruemmler, seeking a resolution, McClatchy has learned.

A White House official, who declined to be further identified as a matter of administration policy, said that Ruemmler responded to Feinstein’s letters, although information obtained by McClatchy indicated that she hadn’t.

It was not known if the materials came up during a visit that Ruemmler and White House Chief of Staff Denis McDonough paid to Feinstein and the committee’s vice chairman, Sen. Saxby Chambliss (R-GA) on Tuesday after Feinstein delivered her speech.

To date, the most explicit public reference to documents being withheld by the White House appears to have been made last August by Sen. Mark Udall (D-CO) an Intelligence Committee member who has led calls for a full disclosure of the CIA interrogation program.

In written questions that he submitted for the confirmation process of former CIA General Counsel Stephen W. Preston to be the Pentagon’s top lawyer, Udall asked Preston what role he had played in an agency decision to withdraw documents that initially had been provided to the committee staff.

“During the CIA’s document production of more than six million pages of records, the CIA removed several thousand CIA documents that the CIA believed could be subject to executive privilege claims by the president,” Udall wrote. “While the documents represent an admittedly small percentage of the total number of records produced, the documents — deemed responsive — have nonetheless not been provided to the committee.”

Preston responded that “a small percentage of the total number of documents was set aside for further review. The agency (CIA) has deferred to the White House and has not been substantially involved in subsequent discussions about the disposition of those documents.”

In a related episode in 2010 as described by Feinstein in her speech on Tuesday, the committee staff discovered that it was no longer able to access hundreds of documents that it previously had been able to read.

“This was done without the knowledge or approval of committee members or staff and in violation of our written agreements,” she said.

CIA personnel initially accused computer technicians of removing the documents and then asserted that they were pulled on the White House’s orders, Feinstein said. The White House denied issuing such orders, she said, and “the matter was resolved” with renewed administration and CIA pledges that there would be no further intrusions into the staff’s database.

Feinstein, however, did not say what happened to the documents.

The records being held by the White House are separate from materials generated by an internal CIA review of some 6.2 million pages of operational cables, emails and other top-secret documents made accessible to committee staff in a secret CIA electronic reading room in Northern Virginia. The committee approved a final draft of the $40 million, 6,300-page study in December 2012.

In his first significant comments on the scandal, Chambliss took to the Senate floor late Wednesday afternoon to launch an apparent counterattack on Feinstein’s speech.

“Although people speak as though we know all the pertinent facts surrounding this matter, the truth is, we do not,” said Chambliss, who pointed out that the committee’s Republican staff didn’t participate in investigating the detention and interrogation program.

“We do not have the actual facts concerning the CIA’s alleged actions or all of the specific details about the actions by the committee staff regarding the draft of what is now referred to as the Panetta internal document,” Chambliss said. “Both parties have made allegations against one another, and even speculated (on) each other’s actions, but there are still a lot of unanswered questions that must be addressed.”

“No forensics have been run on the CIA computers … at the CIA facility to know what actually happened either regarding the alleged CIA search or the circumstances under which the committee came into possession of the Panetta internal review document.”

AFP Photo/Mark Wilson

FBI Probing Alleged Removal Of Documents From CIA By Senate Staffers

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

WASHINGTON — The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.

The FBI’s involvement takes to a new level an extraordinary behind-the-scenes battle over the report that has plunged relations between the agency and its congressional overseers to their iciest in decades. The dispute also has intensified uncertainty about how much of the committee’s four-year-long study will ever be made public.

The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.

The matter is now with the FBI, said one federal official. Like all of those who spoke to McClatchy, the federal official requested anonymity because the case is highly sensitive, closely guarded and could potentially involve criminal charges.

The investigation request by the CIA general counsel’s office is one of two criminal referrals sent to the Justice Department in connection with the committee’s 6,300-page report, which remains unreleased nearly 15 months after the panel voted to approve its final draft, according to those familiar with the case.

The second was made by CIA Inspector General David Buckley, they said. It relates to the monitoring by the agency of computers that the committee staff used to review millions of classified documents in the electronic reading room set up inside a secret CIA facility in Northern Virginia, they said.

It was unclear when precisely the referrals were made or when the FBI became involved or whether the bureau investigation also includes the computer monitoring.

The FBI and the CIA declined to comment. The committee referred calls to the Justice Department, which also declined to comment.

The committee’s $40 million classified study concluded that little valuable intelligence was obtained by the CIA’s use during the George W. Bush administration of waterboarding and other harsh interrogation methods on suspected terrorists in “black site” prisons in Europe, Africa, Asia and the Middle East, according to lawmakers who have read it.

The study, the lawmakers have said, also found that the CIA misled the White House, Congress and the public about the usefulness of the information gained from the techniques, which many experts and governments condemn as torture. The CIA and former Bush administration officials said the methods were legal. The program ended in 2006.

The committee approved a final draft of its report in December 2013 and submitted it to the CIA for an official response and recommendations on what portions should be withheld from the public. The agency submitted its response in June 2013 and has resisted its release, citing inaccuracies in some of the committee’s conclusions.

As reported earlier this week by McClatchy, the dispute escalated last fall when committee staff discovered what lawmakers have characterized as a draft of a top-secret internal CIA review ordered by former CIA Director Leon Panetta that broadly corroborated their report’s findings, according to one of the knowledgeable people. They found the draft in a database into which documents were deposited after being vetted by a team of CIA officials and contractors.

The staff then realized that the draft review showed that CIA leadership misled the panel in submitting an official response that disputed some report conclusions, the knowledgeable person said.

The staff printed out the draft, walked the document out of the CIA facility and took it to Capitol Hill, an act that the CIA regarded as the unauthorized removal of classified material and a violation of a user agreement between the sides, according to knowledgeable people.

The CIA confronted the committee in January with details of the unauthorized removal. The staff then determined that the CIA had recorded their use of the computers in the high-security research room that also allegedly violated the user agreement, McClatchy learned.

The CIA has denied that it conducted an internal review, saying that the group assembled at Panetta’s direction only produced summaries of the documents deposited in the database for use by the committee staff, and that it didn’t compile an analytical report.

AFP Photo/Saul Loeb

CIA Monitoring Of Senate Computers Referred To Justice Department

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

WASHINGTON — The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

The development marks an unprecedented breakdown in relations between the CIA and its congressional overseers amid an extraordinary closed-door battle over the 6,300-page report on the agency’s use of waterboarding and harsh interrogation techniques on suspected terrorists held in secret overseas prisons. The report is said to be a searing indictment of the program. The CIA has disputed some of the reports findings.

White House officials have closely tracked the bitter struggle, a McClatchy investigation has found. But they haven’t directly intervened, perhaps because they are embroiled in their own feud with the committee, resisting surrendering top-secret documents that the CIA asserted were covered by executive privilege and sent to the White House.

McClatchy’s findings are based on information found in official documents and provided by people with knowledge of the dispute being fought in the seventh-floor executive offices of the CIA’s headquarters in Langley, Va., and the committee’s high-security work spaces on Capitol Hill.

The people who spoke to McClatchy asked not to be identified because the feud involves highly classified matters and carries enormous consequences for congressional oversight over the executive branch.

The CIA and the committee declined to comment.

Caitlin Hayden, a spokeswoman for the National Security Council, declined to discuss the matter and referred questions to the CIA and the Justice Department.

In question now is whether any part of the committee’s report, which took some four years to compose and cost $40 million, will ever see the light of day.

The report details how the CIA misled the Bush administration and Congress about the use of interrogation techniques that many experts consider torture, according to public statements by committee members. It also shows, members have said, how the techniques didn’t provide the intelligence that led the CIA to the hideout in Pakistan where Osama bin Laden was killed in a 2011 raid by Navy SEALs.

The committee determined earlier this year that the CIA monitored computers — in possible violation of an agreement against doing so — that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden (D-OR) a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

Brennan replied that he’d have to get back to Wyden after looking into “what the act actually calls for and it’s applicability to CIA’s authorities.”

The law makes it a criminal act for someone to intentionally access a computer without authorization or to go beyond what they’re allowed to access.

People familiar with the issue said it wasn’t clear whether the monitoring violated any law or administrative regulations.

Sen. Mark Udall, D-Colo., who has led calls for the CIA to allow the release of the report, also appeared to be referring to the monitoring in a letter he sent Tuesday to President Barack Obama.

“As you are aware, the CIA has recently taken unprecedented action against the committee in relation to the internal CIA review and I find these actions to be incredibly troubling for the committee’s oversight responsibilities and for our democracy,” Udall wrote. “It is essential that the committee be able to do its oversight work — consistent with our constitutional principle of the separation of powers — without the CIA posing impediments or obstacles as it is today.”

Udall also called on Obama to strip the CIA of control over how much of the Senate report should be made public. The report remains classified nearly 15 months after the panel approved the document and turned it over to the agency for vetting.

“It is my belief that the declassification of the Committee Study is of paramount importance and that decisions about what should or should not be declassified regarding this issue should not be delegated to the CIA, but directly handled by the White House,” Udall wrote.

Udall has led a handful of lawmakers in pressing for the release of the report’s conclusions, which committee members have publicly said show that the CIA misled the Bush administration and Congress about the intelligence gained from using water-boarding and other interrogation techniques. On Tuesday, Hayden said, “For some time, the White House has made clear to the chairman of the Senate Select Committee on Intelligence that a summary of the findings and conclusions of the final … report should be declassified, with any appropriate redactions necessary to protect national security.”

The conflict over the committee’s investigation heightened late last year when the committee discovered that a CIA internal review confirming some of the committee’s findings had been withheld from Senate investigators.

In his letter to Obama, Udall said the internal report not only corroborates aspects of the committee’s investigation, but “acknowledges significant mistakes and errors made during the course of the CIA program.”

“It is vital that we understand how and why the content of the CIA’s internal review contradicts the CIA’s official June 27, 2013, response to the Committee,” he added.

The agency has downplayed the importance of the document, characterizing it as a compilation of summaries of classified documents, rather than an analytical report.

AFP Photo/Saul Loeb