Politics

The CIA Lawyer Who Led a Secret Effort to Spy on the Senate

An insider's account of why the intelligence agency monitored its overseers

By Conor Friedersdorf

When the CIA got caught spying on Senate staffers working on the 6,000 page torture report, John Brennan, who heads the agency, denied the transgression. "As far as the allegations of the CIA hacking into computers, nothing could be further from the truth," he said on March 11, 2014. "That's beyond the scope of reason." Four months later, the CIA Inspector General found that the CIA did, in fact, improperly spy on the Senate intelligence committee. After that, Brennan apologized.

Now the public can read an extraordinary, recently released memo written by the unnamed CIA lawyer who led the effort to improperly monitor Senate overseers, outraging Senator Dianne Feinstein and prompting calls for a new CIA director. The document gives insight into the CIA's tortured logic for its actions and it raises new questions about Brennan's truthfulness in March of last year.

The memo states that on January 13, 2014, the unnamed CIA lawyer met with Brennan and at least a half-dozen others. They briefed Brennan on their efforts to clandestinely probe a computer system used by the Senate intelligence committee staff. They wanted to see if it contained a review of CIA torture ordered by former CIA Director Leon Panetta. "I informed the Director of my view that the conduct in question could be criminal, and that the Agency—based solely on its current understanding, that unauthorized documents existed on the SSCI side of the system and had been repeatedly accessed—had an obligation to answer the question of whether there had been a security violation or potential violation of law that should be referred to the Department of Justice," the unnamed lawyer writes.

At that point, Brennan ordered a "pause" in the secret CIA spying.

"At 5:30 pm on January 16, I was asked to come to the Director's office," the memo continues. "He said he appreciated my advice, fully supported all my actions in this matter, and urged me to be proactive in coming to him with future concerns."

Two months later, when legislators were publicly accusing the CIA of secretly monitoring the Senate intelligence committee, Brennan declared, "When the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong." But he'd known for months that multiple CIA staffers conspired to probe what documents the Senate intelligence committee possessed and monitor how many times it accessed at least one document. It's hard to see Brennan's comment as anything other than a willful attempt to mislead Congress and the public.

As for the unnamed CIA lawyer who led the effort to spy on the Senate intelligence committee, let's take a step back to reflect on his or her claims in context. Since the 1970s, the Senate intelligence committee has been charged with overseeing the CIA. Its charge is to ensure that it never again engages in historic abuses.

In keeping with these duties, senators and their staffers embarked on a years-long, multi-million dollar effort to study the CIA's interrogation of prisoners after 9/11. Senate staffers working on the torture report were cleared to see classified information. And as it turned out, the CIA possessed classified documents on the torture of prisoners: a review commissioned by former CIA Director Leon Panetta.

Common sense suggested that the Senate ought to see that review.

The principle that the CIA's overseers should be as well-informed as possible about its activities—particularly potentially illegal activities—suggested the same conclusion.

But by the CIA's logic, it wasn't merely justified in trying to keep that review secret and trying to withhold it from its overseers—it was also justified in spying on anyone it suspected of possessing the review and trying to get them criminally charged.

Imagine the following exchange in a federal prison:

"What are you in for?"

"Oh, I used to work for the Senate. I was writing a classified report on CIA torture. For my research, the CIA insisted that I come to their headquarters and work on their computers. And while I was there, I came across this torture review they made."

"So no one went to jail for CIA torture, but you went to jail for reading a CIA report on the thing you were supposed to be investigating?"

"Yes."

The CIA's effort to criminalize oversight is even more extraordinary when one considers how Senate staffers were able to access the so-called Panetta review on interrogations.

As suggested above, the Senate would've liked to review the documents required to complete its torture report on their own turf, but the CIA insisted that due to the sensitive nature of the material, senators and their staffers should do their work in a CIA facility on a computer system set up by the CIA itself. This would cost millions of taxpayer dollars and hundreds of hours of staff time, but the Senate agreed to the demand. The CIA set up a computer system with two sides—one controlled by the CIA, the other used by the Senate intelligence committee, which would have a Google search tool to access the documents to which it was entitled.

But the CIA messed up. The search tool that it gave the Senate indexed a bunch of documents that were beyond the scope of the intelligence committee's investigation. The CIA's Office of the Inspector General agrees, as Katherine Hawkins explains:

The OIG report found that there was indeed “a vulnerability” with the Google search tool that the CIA provided to the committee, which was “not configured to enforce access rights or search permissions within RDINet and its holdings” from 2009 to April 2013. But contrary to the CIA lawyer’s memorandum and the crimes report to DOJ, OIG found no evidence that Senate staff had deliberately “exploited” this flaw until CIA personnel “confronted them” with inappropriately accessed documents. Rather, it was SSCI staff who brought the vulnerability to the CIA’s attention. On November 1, 2012, a SSCI staff member alerted CIA staff that the search tool “was indexing the Majority staff work product on a shared drive,” and asked them to make it stop. The CIA did not act on this request for months. Then in 2013, a SSCI staff member requested “a number of detainee videos not provided to the SSCI by the CIA,” based on a spreadsheet that a CIA employee recognized as being from the Panetta Review. After this incident, in April 2013, CIA IT staff finally discovered and repaired the flaw with the Google search tool.

These actions are not consistent with Senate staffers knowingly “exploiting a vulnerability” in a CIA firewall. They are consistent with the CIA providing a Google search tool that did not work the way it was supposed to work. As Senator Feinstein said on the Senate floor in March 2014, "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 intelligence committee."

As Hawkins notes, "That is not a crime or anything close to a crime," but the CIA treated it as a crime to justify its secret intrusion into the Senate committee's digital workspace. Says Marcy Wheeler, "CIA set up an expensive server, accessed by Google searches, so SSCI staffers could do their job. And then tried to get them prosecuted for using what turned out to be a flaw in that Google search function." And there's no indication that the CIA, which purports to regard this as a worrisome breach, ever disciplined whoever set up the flawed search tool.

There's one last part of the unnamed CIA lawyer's logic that warrants special scrutiny. The lawyer purports to have felt compelled to monitor the actions of Senate staffers without alerting the leadership of the Senate intelligence committee or the White House, "Informing committee leadership of the potential breach at this stage," he or she wrote, "would result in the potential targets of investigation—SSCI staff—being informed of the investigation, and would permit them to 'get their story straight' prior to being interviewed by the Agency's security officer or law enforcement, a practice that would not be viewed as appropriate by criminal investigators."

By this logic, if the CIA suspected that Senator Dianne Feinstein illegitimately possessed a hard copy of a CIA document in her Senate office, they would be justified in clandestinely breaking into her desk drawers themselves to see if it was there.

(Tellingly, even after secretly monitoring the Senate staff, the CIA went on to contact the Department of Justice with a crime report that has since been proved inaccurate.)

Even before the unnamed CIA lawyer's memo was made public, various politicians and pundits were calling for Brennan to resign his post, or for President Obama to fire him. These latest details only strengthen the case for his ouster, as do the dubious efforts of the sham accountability board that he has empowered. Unfortunately, leadership of the intelligence committee has passed from Senator Feinstein, who failed miserably in her efforts to hold the CIA accountable, to Senator Richard Burr, who evidences no desire to keep it accountable at all.