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Originally posted by UtahOwl » Mon Sep 12, 2016 10:01 am – 67 views before being transplanted here.
I propose that we read The Guardian's series "The Insider" about Daniel Jones, a staffer on the Senate's intelligence oversight committee, who managed to obtain a copy of the highly secret "Panetta Report" on the CIA's torture and other activities in the early days of the Iraq war. It is in three parts, all online
at this point.
[RL Editorial Note – The following articles are reproduced below.]
Part 1: https://www.theguardian.com/us-news/201 ... estigation: Inside the fight to reveal the CIA's torture secrets
Part 2: https://www.theguardian.com/us-news/201 ... niel-jones: The CIA turns on the Senate
Part 3: https://www.theguardian.com/us-news/201 ... estigation: The CIA torture report's aftermath
Have a look and decide whether this is worth our attention!
The CIA - A Constitutional Crisis? (proposed by Utah Owl)
First Guardian Article
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theguardian.com/us-news/2016/sep/09/cia-insider-daniel-jones-senate-torture-investigation
The Guardian – 9/9/2016
Inside the fight to reveal the CIA’s torture secrets
By Spencer Ackerman
Daniel Jones had always been friendly with the CIA personnel who stood outside his door.
When he needed to take something out of the secured room where he read mountains of their classified material, they typically obliged. An informal understanding had taken hold after years of working together, usually during off-peak hours, so closely that Jones had parking privileges at an agency satellite office not far from its McLean, Virginia, headquarters. They would ask Jones if anything he wanted to remove contained real names or cover names of any agency officials, assets or partners, or anything that could compromise an operation. He would say no. They would nod, he would wish them a good night, and they would go their separate ways.
After midnight in the summer of 2013, Jones deliberately violated that accord.
Jones, a counter-terrorism staffer, had become the chief investigator for the Senate intelligence committee, the CIA’s congressional overseer, on its biggest inquiry. For five years, he had been methodically sifting through internal CIA accounts of its infamous torture program, a process that had begun after the committee learned – thanks to a New York Times article, not the agency – that a senior official had destroyed videotapes that recorded infamously brutal interrogations. The subsequent committee inquiry had deeply strained a relationship with Langley that both sides badly wanted to maintain. The source of that strain was simple: having read millions of internal emails, cables and accounts of agency torture, Jones had come to believe everything the CIA had told Congress, the Bush and Obama White Houses and the public was a lie.
There was one document in particular that proved it. Jones and his team had found it years before, placed mysteriously onto a shared computer network drive the Senate intelligence committee investigators were using in northern Virginia, not far from CIA headquarters. But they hadn’t appreciated its full significance until the agency, in an attempt at refuting a report that was still far from publication, told Barack Obama’s staff that the committee was pushing a hysterical interpretation of the agency’s fateful post-9/11 embrace of torture. The document, prepared for Leon Panetta when he was CIA director, had reached the same conclusions about the torture program that Jones had. As long as Jones had it, he would be able to show that the agency knew full well how brutal the torture was; how ineffective its torturers considered it to be; and how thoroughly the CIA had covered all of that up.
As long as Jones had the document, that is. Lurking in the back of his mind was the event that had led him to devote five years of ceaseless work, through nights and weekends: the CIA had already destroyed evidence of torture. It did that before the Senate had launched an investigation, and long before that investigation had turned acrimonious.
Inside the small room in Virginia the CIA had set up for the Senate investigators, Jones reached for his canvas messenger bag. He slipped crucial printed-out passages of what he called the Panetta Review into the bag and secured its lock. Sometime after 1am, Jones walked out, carrying his bag as he always did, and neglecting to tell the agency security personnel what it contained. After years of working together, no one asked him to open the bag.
Jones walked to the parking lot until he found his black Porsche Boxster. He tossed the bag onto the passenger seat and drove across the Potomac river, not stopping until he reached the Hart Senate office building on Capitol Hill. It was hours before dawn, but Jones walked into the building, sped to the second floor where the committee did its work, and placed the locked bag into a committee safe.
Jones, by accord, had significant access to classified agency material. He would not be leaking the Panetta Review to the public. He was ensuring its preservation so Congress could exercise its constitutionally mandated oversight on an agency with a vivid recent history of document destruction on precisely this issue. But Jones, in his first-ever interview, acknowledged to the Guardian: “We had crossed a bridge. For the first time we had knowingly violated a CIA agreement.”
It was an unfathomable turn of events, and it would have severe repercussions. Jones had years of training and experience handling classified material: before joining the Senate committee staff, he was an FBI counter-terrorism analyst. The Senate committee was not favorably inclined toward absconding with intelligence documents: its leadership was spending summer 2013 excoriating NSA whistleblower Edward Snowden as a traitor. But, Jones said: “I was afraid [the document] would be destroyed … I was the one saying, ‘We have to do this.’”
Jones takes “full responsibility” for taking the document, but will not clarify who actually made the decision. Senators on the committee say they learned about it after the fact rather than directing him to take the document, and support the decision to this day.
“I don’t disagree with it. I mean, look, Director [John] Brennan tried very hard to cover up the Panetta Review,” said Senator Ron Wyden, an Oregon Democrat and longtime intelligence committee member.
The Panetta Review saga would spur a furious CIA to take an extraordinary step: it would spy on its own legislative overseers – especially Jones. The episode would spill out publicly the following March, when top committee Democrat Dianne Feinstein, who had already taken a huge political risk in pushing the torture inquiry, accused the CIA on the Senate floor of triggering what she called a constitutional crisis. Both sides requested the justice department pursue a criminal investigation on the other. The bitterness would nearly overshadow a landmark report, a fraction of which was released to the public in December 2014, that documented in chilling detail the depravations CIA inflicted on terrorism suspects after 9/11.
The CIA has stopped defending its torture program but not its personnel. While it has reknit its relationship to the committee, thanks to a GOP leadership that has all but disavowed the torture investigation, it continues to maintain that the torture report is inaccurate. Obama, whose trusted aide John Brennan runs the CIA, kept the report at arm’s length, with his administration declining even to read it.
But the CIA has gone beyond successfully suppressing the report. In a grim echo of Jones’s fears, the agency’s inspector general, Langley recently revealed, destroyed its copy – allegedly an accident. Accountability for torture has been the exclusive province of a committee investigation greeted with antipathy by Obama. While Obama prides himself on ending CIA torture, the Republican presidential nominee, Donald Trump, has vowed if elected to “bring back a hell of a lot worse than waterboarding”. Key CIA leaders defending the agency against the committee, including Brennan and former director Michael Morrell, are reportedly seeking to run Langley under Hillary Clinton.
This is the inside story of the Senate investigation into torture and the crisis with the CIA it spurred. It is formed from interviews with critical players in the drama, supported by voluminous internal reports and publicly available documents. Jones agreed to provide new details but would not discuss classified information with the Guardian.
When it came time for Brennan to talk publicly about the Senate inquiry, long after Jones’s predawn drive, he spent five minutes fitting the CIA’s torturers into the context of 9/11. But 9/11 changed Jones’s life as well.
A native of central Pennsylvania, Jones, now 41 years old, taught in Baltimore in his early 20s as part of the Teach for America program encouraging service in inner-city schools. After 9/11, he recalled, he wanted to influence public policy over the emerging war on terrorism, and sought work on Capitol Hill. An aide to Tom Daschle, then the Senate Democratic leader, advised Jones to instead spend several years at a counter-terrorism agency, like the CIA or FBI. The aide would eventually cross paths with Jones in a different capacity – he was Denis McDonough, the Obama confidant who would become White House chief of staff.
Jones arrived at the FBI in 2003 and spent the next four years there. The bureau was in the midst of a transformation: a generation after Congress had drastically reduced its domestic intelligence-gathering functions, following Nixon-era scandals, 9/11 had compelled its re-entry into the business of pre-empting homegrown terrorists. Jones set up shop in the counter-terrorism division as an analyst, primarily focused on al-Qaida and Sunni extremist groups and occasionally traveling overseas for his work. At one point, he was even detailed to the CIA.
But his future in the bureau was always limited, as he wasn’t a special agent, the field operatives who form the heart of the FBI. Sticking to his plan, Jones arrived on the Hill in January 2007, where his intelligence credentials helped find him a place working for Jay Rockefeller, a West Virginia Democrat and the chairman of the Senate intelligence committee.
Rockefeller told the Guardian that while Jones’s FBI experience qualified him to work on counter-terrorism issues on the committee, Jones’s time as a Baltimore teacher attracted Rockefeller’s interest.
“His decision to make this contribution before he began his career in national security told me something about his character and it was something to which I could relate. He impressed me then and I have only come to admire him more in the years since,” Rockefeller, who retired from the Senate in 2015, said.
The intelligence committee is a culture all to itself. Unlike most congressional panels, the vast majority of its work occurs in secret. The byzantine rules of classification restrict staffers who might bolster legislators’ knowledge from accessing significant relevant information. Membership, particularly on committee leadership, instantly boosts the profile of ambitious legislators, who become de facto surrogates for intelligence officials on cable news. All of this means that a committee tasked as the primary avenue for imposing accountability on secret agencies faces the ever-present risk of becoming captive to the agencies they oversee.
Each element of the 16-agency intelligence community responds to the committee differently. As every intelligence service carries an inherent risk of scandal, they all have an abiding interest in keeping the panel on its side. The National Security Agency, the most powerful and technically sophisticated aspect of US intelligence, tends to send briefers to the Hill who wax loquaciously about the complicated details of its digital surveillance – which lends them an advantage over legislators afraid to admit what they don’t understand. The CIA, however, tends to duck uncomfortable questions by telling senators they’ll send responses later, the better to ensure accurate answers, and secure in the knowledge that busy legislators won’t often follow up. Yet its high-handed style tends not to provoke legislators who would prefer a close relationship with an agency many are inclined to see as performing unsavory tasks for the greater national good.
The committee’s internal politics also operate outside the partisan straightjackets that the broader Congress eagerly wears. Aside from the vanishingly few public hearings it holds – an annual threat briefing, a budget briefing, nominations for senior intelligence appointees – its work occurs in secret. That secrecy prevents the public from knowing the overwhelming amount of activity about its intelligence services. It also affords committee members the leeway to take positions in tensions with party leadership or to ask questions of intelligence briefers that don’t track conveniently with what their more ideological constituents would prefer. While there is a limit to how bipartisan or cross-ideological the committee will behave – former staffers are quick to point out that their work still occurs on the hyper-partisan Hill – both senators and staff describe the closed-door committee work as a venue where unity concerning national security can occur.
“It’s absolutely what people hope Congress is,” Jones recalled.
The torture report began in such a manner.
In November 2005, a senior CIA official named Jose Rodriguez destroyed 92 videotapes depicting the brutal 2002 interrogations of two detainees, Abu Zubaydah and Abdel Rahim Nashiri. Rodriguez’s tapes destruction remained a secret to his congressional overseers for two years, until a 6 December 2007 New York Times article revealed it; they barely even knew the CIA taped interrogations at all. Outrage was swift and, while tilted toward the Democrats, bipartisan, to include the éminences grises of the 9/11 commission. Even the US justice department began an ultimately fruitless inquiry. The Senate committee, then controlled by the Democrat Rockefeller, demanded an explanation.
Michael Hayden, the CIA director, provided an assurance. The CIA did not destroy evidence, Hayden told them, because the agency had extensive records of the interrogations, from field cables, memoranda and internal emails. It was the first time the committee had learned about the documentation of one of the agency’s major operations. Jones, a committee lawyer named Alissa Starzak and two Republican staffers were tasked with combing through Langley archives and documenting what would have been on the destroyed tapes.
Both Jones and Starzak – who declined comment to the Guardian – knew they would be looking through a soda straw. (The GOP staffers stopped coming to Langley after two or three visits, Jones recalls.) The material they reviewed covered only April to December of 2002. It occurred around only one black site, in Thailand, and concerned just two detainees. The heavily redacted material went only one way: cables back to headquarters, containing nothing about what agency leaders instructed their field operatives to do. Yet the material was extensive: the paper documents the agency permitted the staffers to see looked to Jones like an Encyclopedia Britannica.
What they found, over a half a year’s work examining just two detainees’ interrogations from the first year of the torture program, shocked them. It was widely known by 2008 that Abu Zubaydah was tortured. But Jones and Starzak did not expect to see internal accounts detailing, by the minute, what the CIA did to him. They didn’t know, for instance, that interrogators had tortured him to the point that he would obey, like a dog, when they would snap their fingers, nor that they left a man suspected of knowing al-Qaida’s secrets alone for 47 days. The cables describe Abu Zubaydah as kept naked, filthy, stinking, shaking with fear, shoved inside a filth-riddled wooden box, defecating on himself. Agency personnel, in the official communications, get emotional and request transfers rather than continue torturing men they come to believe lack relevant information on terrorism. It immediately raised the question of what the CIA was really doing to dozens of other detainees at its black sites.
“I don’t think the CIA even knew what they were giving us, to be honest,” Jones said.
“These cables were the most graphic of all the cables to exist. Later on, as you go through the program, the cables get less and less detailed. To the credit of the agency personnel who were working on it, they were very detailed. … Everything that we were told was basically the opposite of what happened.”
That detail gave Jones his first recognition of the gulf between what the CIA actually did and what it told everyone outside of Langley that it did. Jones ended up creating a 29-page Microsoft Excel spreadsheet of the early days of CIA torture.
Behind closed doors in the Hart building, Jones presented his findings to the committee on 11 February 2009. Both Republicans and Democrats were shocked by “the incredible brutality of the program at a level beyond which anybody imagined,” Jones said.
“At the back of the report, for what we called the ‘tapes investigation’, the staff created a chart that depicted the most torturous 17 days of Abu Zubaydah’s interrogation. It was almost a minute-by-minute chronology of what the CIA was doing to Abu Zubaydah, and how Abu Zubaydah reacted,” recalled Rockefeller.
“I think everyone on the committee – Democrat and Republican alike – was quite taken by this section of the report. It was hard to deny the ineffectiveness of the CIA interrogations, the brutality, or the fact that the committee had been deeply misled by the CIA.”
Some senators, particularly Republicans, were taken aback at the idea that the CIA would perform such acts. But Jones’s presentations that CIA interrogators knew the torture was useless – contradicting years of agency spin – did not attract significant interest from the senators.
“To me, I thought that’s what people would be taken with – holy shit, we’ve been sold a bill of goods,” he said. “But what they were really taken with was the brutality. … There was a bipartisan consensus that this can’t be the end, there’s got to be a final product, there’s got to be more here.”
Less than a month later, on 5 March 2009, the committee voted 14-1 to expand the investigation, the dissenting vote being Georgia Republican Saxby Chambliss. Instead of examining Rodriguez’s destruction of the videotapes, now the Senate committee would investigate the entire torture program. Part of Jones’s new mandate was to assess whether the CIA “accurately described” its torture program within the Bush administration and to Congress. Still, some of the Republican members imposed limits on the investigation’s scope: Jones couldn’t look at the Bush White House, just the CIA.
The announced inquiry came at an uncomfortable time for the CIA and the White House. Since Obama won the presidency in November, human rights groups had spent four months pressing for a reckoning with torture.
While Obama shut down the torture program on his second day in office, he also said that his focus as president would be to “look forward as opposed to looking backwards”. A senior campaign aide and former senior CIA official, John Brennan, became his chief White House adviser for counter-terrorism, a signal that Obama did not wish to have antagonistic relations with Langley. His choice for CIA director, after Brennan’s equivocations on torture raised red flags for liberals, was Leon Panetta, a longtime Democratic congressman and consummate insider.
Obama’s eagerness to turn the page on torture alarmed some of his allies. The Democratic chairmen of the House and Senate judiciary committees, Patrick Leahy and John Conyers, were pushing for broad investigations into both torture and mass surveillance.
In February 2009, Antonio Taguba, the army major general who blew the whistle on Abu Ghraib, joined a coalition of 18 human rights groups pressing Obama and the Democratic Congress for an independent truth commission on torture. They had support from very senior Democratic legislators, including House speaker Nancy Pelosi, Senate judiciary chairman Patrick Leahy and House judiciary chairman John Conyers. Activists petitioned attorney general Eric Holder to appoint a special prosecutor for the agency.
If the White House and the CIA didn’t like the intelligence committee looking into the CIA’s recent past, they would like an unpredictable 9/11 Commission-style panel and an independent prosecutor far less. The secretive panel, with its longstanding ties to Langley and its Democratic leadership, seemed like a safer option. An added political benefit was the committee’s new chair: Dianne Feinstein of California, who had a long history of disappointing liberals over national security.
Still, the CIA had some caveats.
Usually, when the Senate committee investigates the intelligence agencies, it does so on its home territory. The business of the committee, to include investigations, occurs in secure, locked rooms at the Hart building. Members and staff leave their phones outside; staff who lack the appropriate security clearances do not enter. The entire premise of the intelligence committees, established in the 1970s, was their unique fitness within Congress to handle classified material in order to provide accountability on secret agencies.
Panetta wanted a different arrangement. The CIA was forecasting the provision of between three and six million pages of relevant documents. Panetta’s aides voiced concern that they could not abide names of operatives, locations of black sites and countries cooperating in the torture program transiting to Capitol Hill. Either the committee would have to wait on the delivery of the documents until after the agency painstakingly redacted its material – a process with no defined endpoint and likely to last months, if not years – or it could set up shop in a satellite CIA facility in northern Virginia.
“Every other investigation the committee conducted when I was chairman was done from the intelligence committee’s offices – offices that are fully secured and certified to hold the most sensitive and classified information that exists,” said Rockefeller.
“The CIA’s detention and interrogation program was the exception.”
The proposed arrangement discomfited the committee. Both Jones and Louis Tucker, the GOP staff director, agreed that the investigation should unfold in the Hart building, the same as any the panel would conduct.
Feinstein was giving their concerns teeth. Her meetings with Panetta, whose “intelligence and integrity” she praised in his confirmation hearing that February, showed a hard edge. Behind closed doors, in early June, Feinstein pressed Panetta for access to documents. Panetta, a salty politician, raised his voice, referenced their long history together, and said she was asking for unprecedented access. Feinstein raised hers back, and threatened to send subpoenas to the CIA. Here were two fixtures of decades of California Democratic politics, sizing each other up to determine who would dominate whom.
But the committee had to consider the reality of the task it was confronting. It had taken over a year to investigate just two interrogations related to the tapes, and in truth, primarily one, as Nashiri did not come into CIA custody at the Thai black site until December 2002, the tail end of the period Jones and Starzak investigated. The CIA did not produce any documents until the middle of 2008. How much time would they lose if they waited for the agency to redact at least 3m documents concerning more than 100 detainees?
The CIA offer came to look acceptable. Jones and his team would drive out to the satellite location. They would have an office, lit bright white and windowless, in its basement. While there, Jones believed, they would receive access to a computer network, known as RDINet – for “Rendition, Detention and Interrogation” – hived off from the internet, accessible to them alone, onto which the CIA would place the documents. It was unusual, but they found, compared to the alternatives, they could live with it. Jones’s team set to work at the site on 18 May.
Days later, Panetta and Feinstein came to a final agreement on access. Several letters document their accord, with a final one from Panetta on 12 June saying “an agreement was reached between CIA and SSCI staff personnel regarding operating procedures for the SSCI review of material related to the CIA’s detention and interrogation programs.” The letter said the CIA would establish “a walled-off network share-drive” that only the Senate staff would access for work, and that “CIA access to the walled off network shared drive will be limited to CIA information technology staff, except as authorized by the committee or its staff.”
An earlier accord, dated 28 May, also referred to establishing a “share-drive [that] can be segregated with only SSCI access and walled-off CIA IT administrators, except as otherwise authorized by SSCI.” That document was titled Memorandum of Understanding Senate Select Committee on Intelligence’s Review of CIA’s Detention and Interrogation Program – something agency reviews would later claim, as controversy over the inquiry reached a crisis point, did not exist.
Ironically for an agency whose concerns were premised on security breaches, now it had to hire IT contractors to set up the network for the committee staff. Documents did not actually arrive until 22 June, and then, they were maddeningly difficult to search through, as the agency insisted on using an obscure and not terribly functional search tool. The staff the CIA posted to liaise with the investigators were “openly hostile”, Jones said, and dragged their feet on responding to Jones’s concerns.
Then the CIA was hit by what seemed like a bombshell. In August 2009, US attorney general Eric Holder expanded the remit of the prosecutor looking at the tapes destruction, John Durham, to include the torture program, much as the Senate committee had. The justice department’s new mandate was not as broad as the Senate’s. It would only concern itself with torture that exceeded the boundaries set for the CIA by the Bush-era justice department. Still, for all of Obama’s emphasis on looking forward and not backward, now the CIA had to face its greatest fear since launching the torture program: possible prosecution.
Holder’s decision, ironically, would ultimately hinder the committee more than the CIA, and lead to a criticism that the agency would later use as a cudgel against the Senate.
Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.
But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.
Through a spokesman, Durham, an assistant US attorney in Connecticut, declined to be interviewed for this story.
The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. “Regrettably, that made it difficult for our committee to do interviews. So the judgment was, use the record,” said Wyden, the Oregon Democrat on the panel.
But when the Senate investigators discovered discrepancies between what the cables they read indicated and what CIA leaders represented internally or publicly, they would be unable to solicit answers from the people in question.
Durham’s investigation led to the first partisan break on the committee. The committee’s vice-chairman and top Republican, Kit Bond of Missouri, informed Feinstein that GOP members and staff were withdrawing. The special prosecutor had put the committee – and CIA officials – in an untenable position, Bond said publicly on 25 September: “What current or former CIA employee would be willing to gamble his freedom by answering the committee’s questions?”
By then, the Republican staff had largely withdrawn from the investigation already, with many not bothering to show up to the Virginia facility. Feinstein had already complained about that to Bond in early April. And other strains were evident in the committee’s bipartisanship: a top Republican aide, Kathleen Rice, maintained it would be too onerous to require the CIA to list for the investigators all its black-site detainees.
Bond did not stop at withholding Republican support for the investigation.
In early April 2010, Feinstein, frustrated with the lack of access to agency personnel, wrote to Panetta requesting interviews. It was a preliminary step: at that point, she sought little more than Panetta’s assurance to begin processing interviews on the committee’s behalf.
Bond rejected Feinstein’s request – not only in a letter to her two weeks later, but in a letter to Panetta a few days after that, urging him not to make CIA officials available to the committee. His stated rationale was the same: steering agency employees out of criminal danger. But as Bond also objected to document requests of the sort Panetta had already agreed to provide, Jones suspected other motives.
Jones had lost the support of the committee Republicans. “At this point, they’re working on behalf of CIA,” he said. Bond did not reply to a request for an interview.
Panetta, and his successors, never approved any interviews the committee sought with agency personnel. It wasn’t only officials involved in the program who were constrained in speaking with Jones. In October 2009, during a visit to Langley, Jones sought to interview staff from the inspector general’s office, which had investigated interrogations in 2004. Stephen Preston, the CIA’s lead attorney, stood in the hallway outside his office and insisted he be able to attend the meeting, explicitly to monitor what they discussed on behalf of Panetta. Voices were raised, and Jones’s team marched out of Langley rather than hold the meeting on those terms. Preston – who declined comment to the Guardian – finally relented, and an unmonitored meeting occurred the following month.
“When Director Panetta agreed to provide [the committee] with unprecedented access to CIA documents to pursue its review, the Office of General Counsel was established as the sole conduit for requests and responses to the committee,” said CIA spokesman Ryan Trapani.
“There was a meeting with [committee] staff and OIG where the General Counsel participated in that role. It is our understanding that when topics moved to issues unrelated to the review, the General Counsel left and the meeting between [committee] staff and the OIG proceeded.”
Jones’s fight with the CIA was just beginning.
It turned out that those contractors the committee thought the CIA hired to aid in collecting responsive documents were also acting as gatekeepers. They would review torture documents three times before disseminating them to the investigators to determine not only relevance, but whether higher-ups ought to make the call to turn them over. In some cases, the chain went up to the White House, to review for executive privilege – advisory conversations with White House staff, a broad category that typically keeps a record within the hands of an administration.
White House counsel Greg Craig, his successor Bob Bauer, and Don Verilli were involved in the review, with their colleague Kate Shaw trekking to the off-site location. The attorneys would describe the documents flagged for them to Jones and Starzak, case by case, and ask if they were interested in them. In several cases, the volume of documents meant the CIA had already unwittingly turned over copies of documents flagged for executive privilege review – and, once informed of that, the White House attorneys would roll their eyes and move on.
The White House involvement helped Feinstein navigate the first outright crisis in CIA-committee relations over the torture inquiry. In March 2010 Jones and his colleagues started noticing that they had difficulty accessing documents they knew they already had. Simple search terms weren’t retrieving certain records anymore.
“We noticed they were gone right away,” Jones said.
It would have been easy to disappear documents, even in substantial amounts. The agency had provided millions of pages. The only way it could have happened was for the agency to have removed the information from a computer network the CIA set up for the Senate that Jones did not know the agency could access.
Confronted, the CIA pointed to the tech consultants. Then they pointed the finger at the White House, suggesting that Obama’s attorneys ordered them to remove the documents – a much bigger accusation, with serious implications. Feinstein, alarmed, turned to the White House, and on 12 March, Jones met with White House lawyers, who denied ordering the removal of anything.
In a process that remains opaque to Jones, the CIA investigated internally and, months later, determined they had removed over 900 documents from the committee. It happened twice – with another, smaller wave of removals occurring in May, months after Feinstein first brought the issue to the White House. And it was a violation of the agreements the agency had reached with the committee about the conduct of the inquiry.
“This really upset us early on, because it would never have happened if we had conducted this investigation like we conducted every other CIA and intelligence community investigation, which is that it happens at our location, on our computers,” Jones said.
Ultimately, new White House counsel Bauer conveyed verbally to the chairwoman that the CIA would not remove any more documents. On 17 May, the CIA apologized to Feinstein as well. The committee never got the removed documents back, but at least had alternate copies of some .
“It wasn’t like, we thought, they would enter into our computers and search them, or go through them,” Jones said, with a wry laugh.
Around then, the CIA’s contractor staff largely turned over. The new crew were “more cordial, open, informal”, Jones remembered. (“Those working relationships were professional and I am unaware of any need for bolstering,” the CIA’s Trapani said.) They dragged their feet on document requests less. Some would even complain, in shared frustration with Jones’s team, that their superiors were taking too long to release material.
Jones attempted to accommodate his CIA counterparts. Agency officials would occasionally come to him, expressing concern that some documents they provided were marginally related to interrogations, but they contained information about ongoing and unrelated operations. Some of them contained material that was especially sensitive, particularly for contemporary agency activities, but didn’t shed significant light on torture. He let them “pull the documents … This happened throughout, even up until the very end.”
The agency made other changes that eased the committee’s task. Later in 2010, CIA got rid of the clunky old search tool, following longstanding complaints from both Jones and Durham’s investigators, and replaced the network search function with a Google interface. Easier sifting was “hugely important”, Jones said, as the agency kept piling material on.
The year 2010 gave way to 2011 and 2012. Panetta left to run the Pentagon and David Petraeus, the retired general, took his place. Petraeus seemed “supportive” of the inquiry, recalled Jones. Yet as the committee staff worked nights and weekends at the satellite CIA office, some wondered if the deluge of documentation was a tactic to ensure the investigation collapsed under the weight of accumulated material.
Even with the glut of documentation, the Senate team did not have sufficient evidence to give an account of a major aspect of the CIA’s post-9/11 apparatus: rendition.
Renditions, used before 9/11, were extrajudicial transfers of captured people; after 9/11, a variant, called “extraordinary rendition”, sent captives to the custody of allied intelligence services, neither American nor the country of a detainee’s origin. Some of the CIA’s closest rendition partners worked for the world’s most brutal dictators: Syria’s Bashar al-Assad, Libya’s Muammar Gaddafi, Pakistan’s Pervez Musharraf, Egypt’s Hosni Mubarak.
The rendition infrastructure was even bigger than that of the black sites, which the CIA itself ran. More detainees ran through it than the at least 119 held at the black sites. But once detainees moved into a different intelligence service’s custody, the records the CIA retained of them were scant, or secondhand, or both. It posed a problem for an investigation that sought rigorous internal documentation for every claim it would make. The more time the Senate spent attempting to run down rendition leads, the more it would delay its investigation of the CIA’s interrogations and detentions. And after all, the mandate for the inquiry set by the committee was to determine what the CIA did to men it detained, not what its partners did.
“It was a killer not to cover it, but you’ve got to draw a line,” Jones said. Much CIA documentation the committee had referring to rendition amounted to “hearsay”, not enough to responsibly present.
“Those rendition records don’t involve people who were technically detained by the CIA. These are transients. The records are just not there.”
But the consequence of that decision was profound. While ultimately the classified version of Jones’s report would contain information on CIA renditions, the vast majority of the CIA’s renditions operations – operations that left still-untold numbers of people disappeared, severely wounded, and likely worse – have been lost to history.
Among legislators, the inquiry became background noise. Bond had relinquished the vice-chairmanship to Saxby Chambliss of Georgia, who in 2009 had been the only dissenting vote against launching the investigation. Feinstein, on five different occasions, asked the GOP to rejoin the inquiry, to no avail.
It took until August 2012 for the CIA to cease the bulk document production. (The CIA disputes this, and Trapani said it continued to “facilitate and support” Senate document access until December 2014.) By then, the staff estimated they had the equivalent of two urban libraries. Jones had been writing the classified report incrementally. Starting in October 2011, Feinstein had him send pieces of the report to the committee, Democrats and Republicans, so no one was taken by surprise.
In December 2012, Jones finished the report. It was at that point 6,200 pages long and entirely secret. In a sign of the diminished partisan consensus around torture, the vote to adopt the report was 9-6, with Maine moderate Olympia Snowe the only Republican to assent. Now would come the next fight: to declassify the report.
But since the committee had a more immediate task, Feinstein and the Democrats decided to leverage it. On 7 February 2013, Obama confidant John Brennan had his confirmation hearing with the panel to run his beloved CIA. By now, the CIA had overcome its major fear over torture accountability: Durham’s investigation had concluded in summer 2012 and had prosecuted no one. There would be no criminal accountability for torture, and it was an open question whether the public would ever read Jones’s report. The committee sought Brennan’s attitude toward the inquiry.
Brennan equivocated on torture throughout the hearing. Although he was the agency’s deputy executive director when the program began, he minimized his knowledge of it. (A former CIA officer who has long known Brennan and who has since criticized torture, Glenn Carle, told the Guardian: “He has never been a proponent of this stuff.”) Brennan called waterboarding “reprehensible” but would not, under repeated questioning, call it torture. He promised outright to provide the committee with his “full and honest views” after reading the torture report, but when pressed on declassifying it, said: “I would have to take that declassification request under serious consideration, obviously.”
No response was forthcoming to the declassification request. But on 27 June 2013, the CIA sent a 100-plus page response to the committee raising a host of objections to the Senate’s conclusions.
The agency dissented from the conclusion that torture “did not produce unique intelligence that led terrorist plots to be disrupted, terrorists to be captured, or lives to be saved.” That “flawed conclusion” led to another, the agency claimed: that the CIA “resisted internal and external oversight and deliberately misrepresented to Congress, the executive branch, the media, and the American people” the truth about its torture.
Rejecting an assessment that the agency “misrepresented” the program – lied about torture, less euphemistically – the agency said: “The factual record maintained by the agency does not support such conclusions.”
Jones was stunned, and for a very particular reason. For years, he had been in possession of a specific agency document that not only supported those conclusions, it reached them itself – what a senator on the committee, Mark Udall of Colorado, would later call a “smoking gun”.
The document was the Panetta Review. Much of it remains a mystery to Jones even today: whether he or another staffer found it on the network, whether the agency meant them to receive it, or if an agency whistleblower slipped it onto the Senate drive. Nor does the CIA have an answer to the puzzle: “CIA does not know how [Senate] staff acquired the unauthorized documents,” Trapani said. But Jones recalls discovering it around 2010 and “pretty immediately” understanding its significance.
“When we saw this document, we weren’t like, ‘Oh, great, we got the CIA.’ It was: ‘Oh, Jesus Christ, thank God – we’re not crazy,’” he said. “This was high stakes. A lot was riding on it. It was a relief.”
They called it the Panetta Review because the agency prepared a summary of its renditions, detentions and interrogations work for Director Panetta, who had come to Langley after Obama shut the program down. One version was a Microsoft Word document, clearly a draft, with the function allowing users to see each others’ changes enabled. Another version, apparently more final, was a PDF. Iterations by CIA were clear on view: “You could see the attorneys looking at it and saying, ‘Well, let’s make sure we can back this up, can you add more citations?’”
The final version of the Panetta Review, Jones said, was more than 1,000 pages long. The CIA has represented it as “summaries of documents being provided to the [committee] … highlighting the most noteworthy information contained in the millions of pages of documents being made available,” as agency attorney Martha Lutz would tell a court after Vice reporter Jason Leopold sought to acquire the still-classified document. Jones said that description is incorrect.
“It’s a narrative, plain and simple. ‘This is Abu Zubaydah’s interrogation.’ ‘This is KSM [Khalid Shaikh Mohammed].’ They’re topic oriented: ‘These are the inaccurate things we told the president.’ It’s a final findings document. It has 13 findings. And one is, basically, they provided inaccurate information to support the use of EITs,” or enhanced interrogation techniques, the agency’s preferred euphemism for torture.
Lutz would later tell a federal court that “even the post polished versions remained drafts and were subject to change”. The CIA stopped compiling the Panetta Review in 2010 after Durham told Preston that CIA risked complicating any prosecution if it “made different judgments than the prosecutors had reached”, Charlie Savage reported in his 2015 book Power Wars.
Useful as the document was, it took on brand new significance now that the CIA was denying the conclusions that it had endorsed in the Panetta Review.
“I did not think they were going to say: ‘None of this is right, you’re all wrong.’ I expected to receive the Panetta Review,” Jones said.
“What’s so shocking about that is that we thought this problem – the CIA providing inaccurate information to the president – was limited to the Bush administration, to [ex-directors] Tenet, Goss and Hayden. This is John Brennan’s CIA, Obama’s CIA. There’s a famous picture of Brennan briefing the president with their response in May of 2013, before we received their response. They’re providing inaccurate information to the president of the United States in the present day.”
And the CIA, Jones knew, had a very recent history of destroying videotapes recording torture. It was the reason he had spent five and a half years sifting through the agency’s darkest secrets. Even more recently, the CIA had removed hundreds of documents, surreptitiously and in violation of the understanding the committee thought it reached with the agency, from the Senate files.
Jones walked to his car and drove to the satellite CIA office. His life would never be the same.
theguardian.com/us-news/2016/sep/09/cia-insider-daniel-jones-senate-torture-investigation
The Guardian – 9/9/2016
Inside the fight to reveal the CIA’s torture secrets
By Spencer Ackerman
Daniel Jones had always been friendly with the CIA personnel who stood outside his door.
When he needed to take something out of the secured room where he read mountains of their classified material, they typically obliged. An informal understanding had taken hold after years of working together, usually during off-peak hours, so closely that Jones had parking privileges at an agency satellite office not far from its McLean, Virginia, headquarters. They would ask Jones if anything he wanted to remove contained real names or cover names of any agency officials, assets or partners, or anything that could compromise an operation. He would say no. They would nod, he would wish them a good night, and they would go their separate ways.
After midnight in the summer of 2013, Jones deliberately violated that accord.
Jones, a counter-terrorism staffer, had become the chief investigator for the Senate intelligence committee, the CIA’s congressional overseer, on its biggest inquiry. For five years, he had been methodically sifting through internal CIA accounts of its infamous torture program, a process that had begun after the committee learned – thanks to a New York Times article, not the agency – that a senior official had destroyed videotapes that recorded infamously brutal interrogations. The subsequent committee inquiry had deeply strained a relationship with Langley that both sides badly wanted to maintain. The source of that strain was simple: having read millions of internal emails, cables and accounts of agency torture, Jones had come to believe everything the CIA had told Congress, the Bush and Obama White Houses and the public was a lie.
There was one document in particular that proved it. Jones and his team had found it years before, placed mysteriously onto a shared computer network drive the Senate intelligence committee investigators were using in northern Virginia, not far from CIA headquarters. But they hadn’t appreciated its full significance until the agency, in an attempt at refuting a report that was still far from publication, told Barack Obama’s staff that the committee was pushing a hysterical interpretation of the agency’s fateful post-9/11 embrace of torture. The document, prepared for Leon Panetta when he was CIA director, had reached the same conclusions about the torture program that Jones had. As long as Jones had it, he would be able to show that the agency knew full well how brutal the torture was; how ineffective its torturers considered it to be; and how thoroughly the CIA had covered all of that up.
As long as Jones had the document, that is. Lurking in the back of his mind was the event that had led him to devote five years of ceaseless work, through nights and weekends: the CIA had already destroyed evidence of torture. It did that before the Senate had launched an investigation, and long before that investigation had turned acrimonious.
Inside the small room in Virginia the CIA had set up for the Senate investigators, Jones reached for his canvas messenger bag. He slipped crucial printed-out passages of what he called the Panetta Review into the bag and secured its lock. Sometime after 1am, Jones walked out, carrying his bag as he always did, and neglecting to tell the agency security personnel what it contained. After years of working together, no one asked him to open the bag.
Jones walked to the parking lot until he found his black Porsche Boxster. He tossed the bag onto the passenger seat and drove across the Potomac river, not stopping until he reached the Hart Senate office building on Capitol Hill. It was hours before dawn, but Jones walked into the building, sped to the second floor where the committee did its work, and placed the locked bag into a committee safe.
Jones, by accord, had significant access to classified agency material. He would not be leaking the Panetta Review to the public. He was ensuring its preservation so Congress could exercise its constitutionally mandated oversight on an agency with a vivid recent history of document destruction on precisely this issue. But Jones, in his first-ever interview, acknowledged to the Guardian: “We had crossed a bridge. For the first time we had knowingly violated a CIA agreement.”
It was an unfathomable turn of events, and it would have severe repercussions. Jones had years of training and experience handling classified material: before joining the Senate committee staff, he was an FBI counter-terrorism analyst. The Senate committee was not favorably inclined toward absconding with intelligence documents: its leadership was spending summer 2013 excoriating NSA whistleblower Edward Snowden as a traitor. But, Jones said: “I was afraid [the document] would be destroyed … I was the one saying, ‘We have to do this.’”
Jones takes “full responsibility” for taking the document, but will not clarify who actually made the decision. Senators on the committee say they learned about it after the fact rather than directing him to take the document, and support the decision to this day.
“I don’t disagree with it. I mean, look, Director [John] Brennan tried very hard to cover up the Panetta Review,” said Senator Ron Wyden, an Oregon Democrat and longtime intelligence committee member.
The Panetta Review saga would spur a furious CIA to take an extraordinary step: it would spy on its own legislative overseers – especially Jones. The episode would spill out publicly the following March, when top committee Democrat Dianne Feinstein, who had already taken a huge political risk in pushing the torture inquiry, accused the CIA on the Senate floor of triggering what she called a constitutional crisis. Both sides requested the justice department pursue a criminal investigation on the other. The bitterness would nearly overshadow a landmark report, a fraction of which was released to the public in December 2014, that documented in chilling detail the depravations CIA inflicted on terrorism suspects after 9/11.
The CIA has stopped defending its torture program but not its personnel. While it has reknit its relationship to the committee, thanks to a GOP leadership that has all but disavowed the torture investigation, it continues to maintain that the torture report is inaccurate. Obama, whose trusted aide John Brennan runs the CIA, kept the report at arm’s length, with his administration declining even to read it.
But the CIA has gone beyond successfully suppressing the report. In a grim echo of Jones’s fears, the agency’s inspector general, Langley recently revealed, destroyed its copy – allegedly an accident. Accountability for torture has been the exclusive province of a committee investigation greeted with antipathy by Obama. While Obama prides himself on ending CIA torture, the Republican presidential nominee, Donald Trump, has vowed if elected to “bring back a hell of a lot worse than waterboarding”. Key CIA leaders defending the agency against the committee, including Brennan and former director Michael Morrell, are reportedly seeking to run Langley under Hillary Clinton.
This is the inside story of the Senate investigation into torture and the crisis with the CIA it spurred. It is formed from interviews with critical players in the drama, supported by voluminous internal reports and publicly available documents. Jones agreed to provide new details but would not discuss classified information with the Guardian.
When it came time for Brennan to talk publicly about the Senate inquiry, long after Jones’s predawn drive, he spent five minutes fitting the CIA’s torturers into the context of 9/11. But 9/11 changed Jones’s life as well.
A native of central Pennsylvania, Jones, now 41 years old, taught in Baltimore in his early 20s as part of the Teach for America program encouraging service in inner-city schools. After 9/11, he recalled, he wanted to influence public policy over the emerging war on terrorism, and sought work on Capitol Hill. An aide to Tom Daschle, then the Senate Democratic leader, advised Jones to instead spend several years at a counter-terrorism agency, like the CIA or FBI. The aide would eventually cross paths with Jones in a different capacity – he was Denis McDonough, the Obama confidant who would become White House chief of staff.
Jones arrived at the FBI in 2003 and spent the next four years there. The bureau was in the midst of a transformation: a generation after Congress had drastically reduced its domestic intelligence-gathering functions, following Nixon-era scandals, 9/11 had compelled its re-entry into the business of pre-empting homegrown terrorists. Jones set up shop in the counter-terrorism division as an analyst, primarily focused on al-Qaida and Sunni extremist groups and occasionally traveling overseas for his work. At one point, he was even detailed to the CIA.
But his future in the bureau was always limited, as he wasn’t a special agent, the field operatives who form the heart of the FBI. Sticking to his plan, Jones arrived on the Hill in January 2007, where his intelligence credentials helped find him a place working for Jay Rockefeller, a West Virginia Democrat and the chairman of the Senate intelligence committee.
Rockefeller told the Guardian that while Jones’s FBI experience qualified him to work on counter-terrorism issues on the committee, Jones’s time as a Baltimore teacher attracted Rockefeller’s interest.
“His decision to make this contribution before he began his career in national security told me something about his character and it was something to which I could relate. He impressed me then and I have only come to admire him more in the years since,” Rockefeller, who retired from the Senate in 2015, said.
The intelligence committee is a culture all to itself. Unlike most congressional panels, the vast majority of its work occurs in secret. The byzantine rules of classification restrict staffers who might bolster legislators’ knowledge from accessing significant relevant information. Membership, particularly on committee leadership, instantly boosts the profile of ambitious legislators, who become de facto surrogates for intelligence officials on cable news. All of this means that a committee tasked as the primary avenue for imposing accountability on secret agencies faces the ever-present risk of becoming captive to the agencies they oversee.
Each element of the 16-agency intelligence community responds to the committee differently. As every intelligence service carries an inherent risk of scandal, they all have an abiding interest in keeping the panel on its side. The National Security Agency, the most powerful and technically sophisticated aspect of US intelligence, tends to send briefers to the Hill who wax loquaciously about the complicated details of its digital surveillance – which lends them an advantage over legislators afraid to admit what they don’t understand. The CIA, however, tends to duck uncomfortable questions by telling senators they’ll send responses later, the better to ensure accurate answers, and secure in the knowledge that busy legislators won’t often follow up. Yet its high-handed style tends not to provoke legislators who would prefer a close relationship with an agency many are inclined to see as performing unsavory tasks for the greater national good.
The committee’s internal politics also operate outside the partisan straightjackets that the broader Congress eagerly wears. Aside from the vanishingly few public hearings it holds – an annual threat briefing, a budget briefing, nominations for senior intelligence appointees – its work occurs in secret. That secrecy prevents the public from knowing the overwhelming amount of activity about its intelligence services. It also affords committee members the leeway to take positions in tensions with party leadership or to ask questions of intelligence briefers that don’t track conveniently with what their more ideological constituents would prefer. While there is a limit to how bipartisan or cross-ideological the committee will behave – former staffers are quick to point out that their work still occurs on the hyper-partisan Hill – both senators and staff describe the closed-door committee work as a venue where unity concerning national security can occur.
“It’s absolutely what people hope Congress is,” Jones recalled.
The torture report began in such a manner.
In November 2005, a senior CIA official named Jose Rodriguez destroyed 92 videotapes depicting the brutal 2002 interrogations of two detainees, Abu Zubaydah and Abdel Rahim Nashiri. Rodriguez’s tapes destruction remained a secret to his congressional overseers for two years, until a 6 December 2007 New York Times article revealed it; they barely even knew the CIA taped interrogations at all. Outrage was swift and, while tilted toward the Democrats, bipartisan, to include the éminences grises of the 9/11 commission. Even the US justice department began an ultimately fruitless inquiry. The Senate committee, then controlled by the Democrat Rockefeller, demanded an explanation.
Michael Hayden, the CIA director, provided an assurance. The CIA did not destroy evidence, Hayden told them, because the agency had extensive records of the interrogations, from field cables, memoranda and internal emails. It was the first time the committee had learned about the documentation of one of the agency’s major operations. Jones, a committee lawyer named Alissa Starzak and two Republican staffers were tasked with combing through Langley archives and documenting what would have been on the destroyed tapes.
Both Jones and Starzak – who declined comment to the Guardian – knew they would be looking through a soda straw. (The GOP staffers stopped coming to Langley after two or three visits, Jones recalls.) The material they reviewed covered only April to December of 2002. It occurred around only one black site, in Thailand, and concerned just two detainees. The heavily redacted material went only one way: cables back to headquarters, containing nothing about what agency leaders instructed their field operatives to do. Yet the material was extensive: the paper documents the agency permitted the staffers to see looked to Jones like an Encyclopedia Britannica.
What they found, over a half a year’s work examining just two detainees’ interrogations from the first year of the torture program, shocked them. It was widely known by 2008 that Abu Zubaydah was tortured. But Jones and Starzak did not expect to see internal accounts detailing, by the minute, what the CIA did to him. They didn’t know, for instance, that interrogators had tortured him to the point that he would obey, like a dog, when they would snap their fingers, nor that they left a man suspected of knowing al-Qaida’s secrets alone for 47 days. The cables describe Abu Zubaydah as kept naked, filthy, stinking, shaking with fear, shoved inside a filth-riddled wooden box, defecating on himself. Agency personnel, in the official communications, get emotional and request transfers rather than continue torturing men they come to believe lack relevant information on terrorism. It immediately raised the question of what the CIA was really doing to dozens of other detainees at its black sites.
“I don’t think the CIA even knew what they were giving us, to be honest,” Jones said.
“These cables were the most graphic of all the cables to exist. Later on, as you go through the program, the cables get less and less detailed. To the credit of the agency personnel who were working on it, they were very detailed. … Everything that we were told was basically the opposite of what happened.”
That detail gave Jones his first recognition of the gulf between what the CIA actually did and what it told everyone outside of Langley that it did. Jones ended up creating a 29-page Microsoft Excel spreadsheet of the early days of CIA torture.
Behind closed doors in the Hart building, Jones presented his findings to the committee on 11 February 2009. Both Republicans and Democrats were shocked by “the incredible brutality of the program at a level beyond which anybody imagined,” Jones said.
“At the back of the report, for what we called the ‘tapes investigation’, the staff created a chart that depicted the most torturous 17 days of Abu Zubaydah’s interrogation. It was almost a minute-by-minute chronology of what the CIA was doing to Abu Zubaydah, and how Abu Zubaydah reacted,” recalled Rockefeller.
“I think everyone on the committee – Democrat and Republican alike – was quite taken by this section of the report. It was hard to deny the ineffectiveness of the CIA interrogations, the brutality, or the fact that the committee had been deeply misled by the CIA.”
Some senators, particularly Republicans, were taken aback at the idea that the CIA would perform such acts. But Jones’s presentations that CIA interrogators knew the torture was useless – contradicting years of agency spin – did not attract significant interest from the senators.
“To me, I thought that’s what people would be taken with – holy shit, we’ve been sold a bill of goods,” he said. “But what they were really taken with was the brutality. … There was a bipartisan consensus that this can’t be the end, there’s got to be a final product, there’s got to be more here.”
Less than a month later, on 5 March 2009, the committee voted 14-1 to expand the investigation, the dissenting vote being Georgia Republican Saxby Chambliss. Instead of examining Rodriguez’s destruction of the videotapes, now the Senate committee would investigate the entire torture program. Part of Jones’s new mandate was to assess whether the CIA “accurately described” its torture program within the Bush administration and to Congress. Still, some of the Republican members imposed limits on the investigation’s scope: Jones couldn’t look at the Bush White House, just the CIA.
The announced inquiry came at an uncomfortable time for the CIA and the White House. Since Obama won the presidency in November, human rights groups had spent four months pressing for a reckoning with torture.
While Obama shut down the torture program on his second day in office, he also said that his focus as president would be to “look forward as opposed to looking backwards”. A senior campaign aide and former senior CIA official, John Brennan, became his chief White House adviser for counter-terrorism, a signal that Obama did not wish to have antagonistic relations with Langley. His choice for CIA director, after Brennan’s equivocations on torture raised red flags for liberals, was Leon Panetta, a longtime Democratic congressman and consummate insider.
Obama’s eagerness to turn the page on torture alarmed some of his allies. The Democratic chairmen of the House and Senate judiciary committees, Patrick Leahy and John Conyers, were pushing for broad investigations into both torture and mass surveillance.
In February 2009, Antonio Taguba, the army major general who blew the whistle on Abu Ghraib, joined a coalition of 18 human rights groups pressing Obama and the Democratic Congress for an independent truth commission on torture. They had support from very senior Democratic legislators, including House speaker Nancy Pelosi, Senate judiciary chairman Patrick Leahy and House judiciary chairman John Conyers. Activists petitioned attorney general Eric Holder to appoint a special prosecutor for the agency.
If the White House and the CIA didn’t like the intelligence committee looking into the CIA’s recent past, they would like an unpredictable 9/11 Commission-style panel and an independent prosecutor far less. The secretive panel, with its longstanding ties to Langley and its Democratic leadership, seemed like a safer option. An added political benefit was the committee’s new chair: Dianne Feinstein of California, who had a long history of disappointing liberals over national security.
Still, the CIA had some caveats.
Usually, when the Senate committee investigates the intelligence agencies, it does so on its home territory. The business of the committee, to include investigations, occurs in secure, locked rooms at the Hart building. Members and staff leave their phones outside; staff who lack the appropriate security clearances do not enter. The entire premise of the intelligence committees, established in the 1970s, was their unique fitness within Congress to handle classified material in order to provide accountability on secret agencies.
Panetta wanted a different arrangement. The CIA was forecasting the provision of between three and six million pages of relevant documents. Panetta’s aides voiced concern that they could not abide names of operatives, locations of black sites and countries cooperating in the torture program transiting to Capitol Hill. Either the committee would have to wait on the delivery of the documents until after the agency painstakingly redacted its material – a process with no defined endpoint and likely to last months, if not years – or it could set up shop in a satellite CIA facility in northern Virginia.
“Every other investigation the committee conducted when I was chairman was done from the intelligence committee’s offices – offices that are fully secured and certified to hold the most sensitive and classified information that exists,” said Rockefeller.
“The CIA’s detention and interrogation program was the exception.”
The proposed arrangement discomfited the committee. Both Jones and Louis Tucker, the GOP staff director, agreed that the investigation should unfold in the Hart building, the same as any the panel would conduct.
Feinstein was giving their concerns teeth. Her meetings with Panetta, whose “intelligence and integrity” she praised in his confirmation hearing that February, showed a hard edge. Behind closed doors, in early June, Feinstein pressed Panetta for access to documents. Panetta, a salty politician, raised his voice, referenced their long history together, and said she was asking for unprecedented access. Feinstein raised hers back, and threatened to send subpoenas to the CIA. Here were two fixtures of decades of California Democratic politics, sizing each other up to determine who would dominate whom.
But the committee had to consider the reality of the task it was confronting. It had taken over a year to investigate just two interrogations related to the tapes, and in truth, primarily one, as Nashiri did not come into CIA custody at the Thai black site until December 2002, the tail end of the period Jones and Starzak investigated. The CIA did not produce any documents until the middle of 2008. How much time would they lose if they waited for the agency to redact at least 3m documents concerning more than 100 detainees?
The CIA offer came to look acceptable. Jones and his team would drive out to the satellite location. They would have an office, lit bright white and windowless, in its basement. While there, Jones believed, they would receive access to a computer network, known as RDINet – for “Rendition, Detention and Interrogation” – hived off from the internet, accessible to them alone, onto which the CIA would place the documents. It was unusual, but they found, compared to the alternatives, they could live with it. Jones’s team set to work at the site on 18 May.
Days later, Panetta and Feinstein came to a final agreement on access. Several letters document their accord, with a final one from Panetta on 12 June saying “an agreement was reached between CIA and SSCI staff personnel regarding operating procedures for the SSCI review of material related to the CIA’s detention and interrogation programs.” The letter said the CIA would establish “a walled-off network share-drive” that only the Senate staff would access for work, and that “CIA access to the walled off network shared drive will be limited to CIA information technology staff, except as authorized by the committee or its staff.”
An earlier accord, dated 28 May, also referred to establishing a “share-drive [that] can be segregated with only SSCI access and walled-off CIA IT administrators, except as otherwise authorized by SSCI.” That document was titled Memorandum of Understanding Senate Select Committee on Intelligence’s Review of CIA’s Detention and Interrogation Program – something agency reviews would later claim, as controversy over the inquiry reached a crisis point, did not exist.
Ironically for an agency whose concerns were premised on security breaches, now it had to hire IT contractors to set up the network for the committee staff. Documents did not actually arrive until 22 June, and then, they were maddeningly difficult to search through, as the agency insisted on using an obscure and not terribly functional search tool. The staff the CIA posted to liaise with the investigators were “openly hostile”, Jones said, and dragged their feet on responding to Jones’s concerns.
Then the CIA was hit by what seemed like a bombshell. In August 2009, US attorney general Eric Holder expanded the remit of the prosecutor looking at the tapes destruction, John Durham, to include the torture program, much as the Senate committee had. The justice department’s new mandate was not as broad as the Senate’s. It would only concern itself with torture that exceeded the boundaries set for the CIA by the Bush-era justice department. Still, for all of Obama’s emphasis on looking forward and not backward, now the CIA had to face its greatest fear since launching the torture program: possible prosecution.
Holder’s decision, ironically, would ultimately hinder the committee more than the CIA, and lead to a criticism that the agency would later use as a cudgel against the Senate.
Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.
But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.
Through a spokesman, Durham, an assistant US attorney in Connecticut, declined to be interviewed for this story.
The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. “Regrettably, that made it difficult for our committee to do interviews. So the judgment was, use the record,” said Wyden, the Oregon Democrat on the panel.
But when the Senate investigators discovered discrepancies between what the cables they read indicated and what CIA leaders represented internally or publicly, they would be unable to solicit answers from the people in question.
Durham’s investigation led to the first partisan break on the committee. The committee’s vice-chairman and top Republican, Kit Bond of Missouri, informed Feinstein that GOP members and staff were withdrawing. The special prosecutor had put the committee – and CIA officials – in an untenable position, Bond said publicly on 25 September: “What current or former CIA employee would be willing to gamble his freedom by answering the committee’s questions?”
By then, the Republican staff had largely withdrawn from the investigation already, with many not bothering to show up to the Virginia facility. Feinstein had already complained about that to Bond in early April. And other strains were evident in the committee’s bipartisanship: a top Republican aide, Kathleen Rice, maintained it would be too onerous to require the CIA to list for the investigators all its black-site detainees.
Bond did not stop at withholding Republican support for the investigation.
In early April 2010, Feinstein, frustrated with the lack of access to agency personnel, wrote to Panetta requesting interviews. It was a preliminary step: at that point, she sought little more than Panetta’s assurance to begin processing interviews on the committee’s behalf.
Bond rejected Feinstein’s request – not only in a letter to her two weeks later, but in a letter to Panetta a few days after that, urging him not to make CIA officials available to the committee. His stated rationale was the same: steering agency employees out of criminal danger. But as Bond also objected to document requests of the sort Panetta had already agreed to provide, Jones suspected other motives.
Jones had lost the support of the committee Republicans. “At this point, they’re working on behalf of CIA,” he said. Bond did not reply to a request for an interview.
Panetta, and his successors, never approved any interviews the committee sought with agency personnel. It wasn’t only officials involved in the program who were constrained in speaking with Jones. In October 2009, during a visit to Langley, Jones sought to interview staff from the inspector general’s office, which had investigated interrogations in 2004. Stephen Preston, the CIA’s lead attorney, stood in the hallway outside his office and insisted he be able to attend the meeting, explicitly to monitor what they discussed on behalf of Panetta. Voices were raised, and Jones’s team marched out of Langley rather than hold the meeting on those terms. Preston – who declined comment to the Guardian – finally relented, and an unmonitored meeting occurred the following month.
“When Director Panetta agreed to provide [the committee] with unprecedented access to CIA documents to pursue its review, the Office of General Counsel was established as the sole conduit for requests and responses to the committee,” said CIA spokesman Ryan Trapani.
“There was a meeting with [committee] staff and OIG where the General Counsel participated in that role. It is our understanding that when topics moved to issues unrelated to the review, the General Counsel left and the meeting between [committee] staff and the OIG proceeded.”
Jones’s fight with the CIA was just beginning.
It turned out that those contractors the committee thought the CIA hired to aid in collecting responsive documents were also acting as gatekeepers. They would review torture documents three times before disseminating them to the investigators to determine not only relevance, but whether higher-ups ought to make the call to turn them over. In some cases, the chain went up to the White House, to review for executive privilege – advisory conversations with White House staff, a broad category that typically keeps a record within the hands of an administration.
White House counsel Greg Craig, his successor Bob Bauer, and Don Verilli were involved in the review, with their colleague Kate Shaw trekking to the off-site location. The attorneys would describe the documents flagged for them to Jones and Starzak, case by case, and ask if they were interested in them. In several cases, the volume of documents meant the CIA had already unwittingly turned over copies of documents flagged for executive privilege review – and, once informed of that, the White House attorneys would roll their eyes and move on.
The White House involvement helped Feinstein navigate the first outright crisis in CIA-committee relations over the torture inquiry. In March 2010 Jones and his colleagues started noticing that they had difficulty accessing documents they knew they already had. Simple search terms weren’t retrieving certain records anymore.
“We noticed they were gone right away,” Jones said.
It would have been easy to disappear documents, even in substantial amounts. The agency had provided millions of pages. The only way it could have happened was for the agency to have removed the information from a computer network the CIA set up for the Senate that Jones did not know the agency could access.
Confronted, the CIA pointed to the tech consultants. Then they pointed the finger at the White House, suggesting that Obama’s attorneys ordered them to remove the documents – a much bigger accusation, with serious implications. Feinstein, alarmed, turned to the White House, and on 12 March, Jones met with White House lawyers, who denied ordering the removal of anything.
In a process that remains opaque to Jones, the CIA investigated internally and, months later, determined they had removed over 900 documents from the committee. It happened twice – with another, smaller wave of removals occurring in May, months after Feinstein first brought the issue to the White House. And it was a violation of the agreements the agency had reached with the committee about the conduct of the inquiry.
“This really upset us early on, because it would never have happened if we had conducted this investigation like we conducted every other CIA and intelligence community investigation, which is that it happens at our location, on our computers,” Jones said.
Ultimately, new White House counsel Bauer conveyed verbally to the chairwoman that the CIA would not remove any more documents. On 17 May, the CIA apologized to Feinstein as well. The committee never got the removed documents back, but at least had alternate copies of some .
“It wasn’t like, we thought, they would enter into our computers and search them, or go through them,” Jones said, with a wry laugh.
Around then, the CIA’s contractor staff largely turned over. The new crew were “more cordial, open, informal”, Jones remembered. (“Those working relationships were professional and I am unaware of any need for bolstering,” the CIA’s Trapani said.) They dragged their feet on document requests less. Some would even complain, in shared frustration with Jones’s team, that their superiors were taking too long to release material.
Jones attempted to accommodate his CIA counterparts. Agency officials would occasionally come to him, expressing concern that some documents they provided were marginally related to interrogations, but they contained information about ongoing and unrelated operations. Some of them contained material that was especially sensitive, particularly for contemporary agency activities, but didn’t shed significant light on torture. He let them “pull the documents … This happened throughout, even up until the very end.”
The agency made other changes that eased the committee’s task. Later in 2010, CIA got rid of the clunky old search tool, following longstanding complaints from both Jones and Durham’s investigators, and replaced the network search function with a Google interface. Easier sifting was “hugely important”, Jones said, as the agency kept piling material on.
The year 2010 gave way to 2011 and 2012. Panetta left to run the Pentagon and David Petraeus, the retired general, took his place. Petraeus seemed “supportive” of the inquiry, recalled Jones. Yet as the committee staff worked nights and weekends at the satellite CIA office, some wondered if the deluge of documentation was a tactic to ensure the investigation collapsed under the weight of accumulated material.
Even with the glut of documentation, the Senate team did not have sufficient evidence to give an account of a major aspect of the CIA’s post-9/11 apparatus: rendition.
Renditions, used before 9/11, were extrajudicial transfers of captured people; after 9/11, a variant, called “extraordinary rendition”, sent captives to the custody of allied intelligence services, neither American nor the country of a detainee’s origin. Some of the CIA’s closest rendition partners worked for the world’s most brutal dictators: Syria’s Bashar al-Assad, Libya’s Muammar Gaddafi, Pakistan’s Pervez Musharraf, Egypt’s Hosni Mubarak.
The rendition infrastructure was even bigger than that of the black sites, which the CIA itself ran. More detainees ran through it than the at least 119 held at the black sites. But once detainees moved into a different intelligence service’s custody, the records the CIA retained of them were scant, or secondhand, or both. It posed a problem for an investigation that sought rigorous internal documentation for every claim it would make. The more time the Senate spent attempting to run down rendition leads, the more it would delay its investigation of the CIA’s interrogations and detentions. And after all, the mandate for the inquiry set by the committee was to determine what the CIA did to men it detained, not what its partners did.
“It was a killer not to cover it, but you’ve got to draw a line,” Jones said. Much CIA documentation the committee had referring to rendition amounted to “hearsay”, not enough to responsibly present.
“Those rendition records don’t involve people who were technically detained by the CIA. These are transients. The records are just not there.”
But the consequence of that decision was profound. While ultimately the classified version of Jones’s report would contain information on CIA renditions, the vast majority of the CIA’s renditions operations – operations that left still-untold numbers of people disappeared, severely wounded, and likely worse – have been lost to history.
Among legislators, the inquiry became background noise. Bond had relinquished the vice-chairmanship to Saxby Chambliss of Georgia, who in 2009 had been the only dissenting vote against launching the investigation. Feinstein, on five different occasions, asked the GOP to rejoin the inquiry, to no avail.
It took until August 2012 for the CIA to cease the bulk document production. (The CIA disputes this, and Trapani said it continued to “facilitate and support” Senate document access until December 2014.) By then, the staff estimated they had the equivalent of two urban libraries. Jones had been writing the classified report incrementally. Starting in October 2011, Feinstein had him send pieces of the report to the committee, Democrats and Republicans, so no one was taken by surprise.
In December 2012, Jones finished the report. It was at that point 6,200 pages long and entirely secret. In a sign of the diminished partisan consensus around torture, the vote to adopt the report was 9-6, with Maine moderate Olympia Snowe the only Republican to assent. Now would come the next fight: to declassify the report.
But since the committee had a more immediate task, Feinstein and the Democrats decided to leverage it. On 7 February 2013, Obama confidant John Brennan had his confirmation hearing with the panel to run his beloved CIA. By now, the CIA had overcome its major fear over torture accountability: Durham’s investigation had concluded in summer 2012 and had prosecuted no one. There would be no criminal accountability for torture, and it was an open question whether the public would ever read Jones’s report. The committee sought Brennan’s attitude toward the inquiry.
Brennan equivocated on torture throughout the hearing. Although he was the agency’s deputy executive director when the program began, he minimized his knowledge of it. (A former CIA officer who has long known Brennan and who has since criticized torture, Glenn Carle, told the Guardian: “He has never been a proponent of this stuff.”) Brennan called waterboarding “reprehensible” but would not, under repeated questioning, call it torture. He promised outright to provide the committee with his “full and honest views” after reading the torture report, but when pressed on declassifying it, said: “I would have to take that declassification request under serious consideration, obviously.”
No response was forthcoming to the declassification request. But on 27 June 2013, the CIA sent a 100-plus page response to the committee raising a host of objections to the Senate’s conclusions.
The agency dissented from the conclusion that torture “did not produce unique intelligence that led terrorist plots to be disrupted, terrorists to be captured, or lives to be saved.” That “flawed conclusion” led to another, the agency claimed: that the CIA “resisted internal and external oversight and deliberately misrepresented to Congress, the executive branch, the media, and the American people” the truth about its torture.
Rejecting an assessment that the agency “misrepresented” the program – lied about torture, less euphemistically – the agency said: “The factual record maintained by the agency does not support such conclusions.”
Jones was stunned, and for a very particular reason. For years, he had been in possession of a specific agency document that not only supported those conclusions, it reached them itself – what a senator on the committee, Mark Udall of Colorado, would later call a “smoking gun”.
The document was the Panetta Review. Much of it remains a mystery to Jones even today: whether he or another staffer found it on the network, whether the agency meant them to receive it, or if an agency whistleblower slipped it onto the Senate drive. Nor does the CIA have an answer to the puzzle: “CIA does not know how [Senate] staff acquired the unauthorized documents,” Trapani said. But Jones recalls discovering it around 2010 and “pretty immediately” understanding its significance.
“When we saw this document, we weren’t like, ‘Oh, great, we got the CIA.’ It was: ‘Oh, Jesus Christ, thank God – we’re not crazy,’” he said. “This was high stakes. A lot was riding on it. It was a relief.”
They called it the Panetta Review because the agency prepared a summary of its renditions, detentions and interrogations work for Director Panetta, who had come to Langley after Obama shut the program down. One version was a Microsoft Word document, clearly a draft, with the function allowing users to see each others’ changes enabled. Another version, apparently more final, was a PDF. Iterations by CIA were clear on view: “You could see the attorneys looking at it and saying, ‘Well, let’s make sure we can back this up, can you add more citations?’”
The final version of the Panetta Review, Jones said, was more than 1,000 pages long. The CIA has represented it as “summaries of documents being provided to the [committee] … highlighting the most noteworthy information contained in the millions of pages of documents being made available,” as agency attorney Martha Lutz would tell a court after Vice reporter Jason Leopold sought to acquire the still-classified document. Jones said that description is incorrect.
“It’s a narrative, plain and simple. ‘This is Abu Zubaydah’s interrogation.’ ‘This is KSM [Khalid Shaikh Mohammed].’ They’re topic oriented: ‘These are the inaccurate things we told the president.’ It’s a final findings document. It has 13 findings. And one is, basically, they provided inaccurate information to support the use of EITs,” or enhanced interrogation techniques, the agency’s preferred euphemism for torture.
Lutz would later tell a federal court that “even the post polished versions remained drafts and were subject to change”. The CIA stopped compiling the Panetta Review in 2010 after Durham told Preston that CIA risked complicating any prosecution if it “made different judgments than the prosecutors had reached”, Charlie Savage reported in his 2015 book Power Wars.
Useful as the document was, it took on brand new significance now that the CIA was denying the conclusions that it had endorsed in the Panetta Review.
“I did not think they were going to say: ‘None of this is right, you’re all wrong.’ I expected to receive the Panetta Review,” Jones said.
“What’s so shocking about that is that we thought this problem – the CIA providing inaccurate information to the president – was limited to the Bush administration, to [ex-directors] Tenet, Goss and Hayden. This is John Brennan’s CIA, Obama’s CIA. There’s a famous picture of Brennan briefing the president with their response in May of 2013, before we received their response. They’re providing inaccurate information to the president of the United States in the present day.”
And the CIA, Jones knew, had a very recent history of destroying videotapes recording torture. It was the reason he had spent five and a half years sifting through the agency’s darkest secrets. Even more recently, the CIA had removed hundreds of documents, surreptitiously and in violation of the understanding the committee thought it reached with the agency, from the Senate files.
Jones walked to his car and drove to the satellite CIA office. His life would never be the same.
Second Guardian Article
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theguardian.com/us-news/2016/sep/10/cia-senate-investigation-constitutional-crisis-daniel-jones
'A constitutional crisis': the CIA turns on the Senate
Tensions flare between the CIA and the Senate in the fight to release the report on torture – leading the agency to spy on its own legislative overseers
By Spencer Ackerman
It was 11pm, in the chill of January, but Daniel Jones needed a run around the Capitol.
During the winter of early 2014 Jones’s only chance for serenity was these late hours. The CIA was demanding his boss, Senate intelligence committee chairwoman Dianne Feinstein, fire him. Feinstein’s Republican colleagues, once supportive of Jones, were demanding he testify.
Testimony was treacherous. Sheldon Whitehouse, a Rhode Island senator and former federal prosecutor, warned Jones that asserting his rights against self-incrimination or seeking a lawyer’s counsel could give committee Republicans a political lever against his highly controversial work. The CIA would soon formally insist that the US justice department actually prosecute Jones, the Senate staffer who had devoted over six years of his life to investigating the CIA’s infamous post-9/11 torture program.
Jones, a former FBI counter-terrorism analyst, wanted to testify. The CIA had pushed him past the point where he could back down. Its lies, documented in a 6,700-page secret report which Jones was constantly rewriting that winter, were compounding: to Congress, to Barack Obama, to George W Bush, to the press, to the public. The lies were not random misstatements. They were directional, in the service of covering up the brutality of what it did to at least 119 terrorist suspects – some clearly innocent – it held in a global network of secret prisons. Jones was on the verge of exposing the coverup. As he saw it, the personalized intensity of the CIA’s attacks on him, and the unprecedented steps they were taking, validated the account he had compiled after combing through over 6m classified CIA documents.
Jones put his Bose earbuds in, cued up a Tragically Hip record, and ran.
It couldn’t be that long of a lap, just enough to clear his head and work the frustrations out. Jones would need to be back in the Senate intelligence committee’s secured, classified offices very soon. Each day brought a new calculation: it might be the last that the committee had access to its own classified report. The CIA had gone “into war mode” with its congressional overseers, Jones told the Guardian. There was no choice but to work deeply into the night, leaving Capitol Hill at 3 or 4 in the morning, with breaks only for a run, and then back to work by 8 or 9 to repeat the cycle.
Less than a year had passed since the CIA had communicated to the Senate that its exhaustive torture report, drawn from millions of the agency’s own documents, was significantly incorrect. Less than a year had passed since Jones, unbeknownst to the CIA, had locked in a committee safe crucial portions of one such record, called the Panetta Review, in which the CIA had come to the same conclusions about torture as Jones had. But now the agency was letting the committee know it was not playing around – and that it was coming for Jones himself.
From August to September 2013 Jones had more than a dozen meetings with agency officials lasting 60 hours to attempt to reconcile their objections with findings in his 6,700-page classified report. It got to the point where Jones would take a whiteboard with him. That way, he could sketch out the timelines he found in CIA cables for when the agency learned specific aspects of its terrorism intelligence. He attempted to demonstrate contradictions from what the CIA said publicly – and how the claimed basis for those CIA statements occurred before this-or-that torture session the agency said was the genesis of the information.
“It should be noted that at no point in those discussions did [Senate] staff ask CIA to reconcile the CIA June 2013 response to the Panetta Review,” said CIA spokesman Ryan Trapani. “In fact, at no time in those discussions did [committee] staff indicate that they had a copy of the Panetta Review.”
In September 2013, Jones told Feinstein that continuing such fact-free discussions was pointless. Feinstein was concerned Jones was too close to the report to be objective, but she backed his decision. With the report stuck in limbo, she gave him a new challenge: redo the report, incorporating aspects of the CIA’s response, and putting what they found to be wrong about that response in the footnotes.
“Basically, her thing was: make them own their response,” Jones said. The effect was to expand a 250-page executive summary to over 500 pages, “doubling the amount of information”, all as the CIA continued to object. The agency and the committee were arraying for battle.
Just before Thanksgiving, Feinstein formally wrote to CIA director John Brennan requesting the entire 1,000-plus page Panetta Review. Jones had not taken the full document back from the satellite location, only the sections necessary to show busy senators that the agency concluded it had misled its political masters about the futility of its torture. The CIA said it would not provide it. This time, it would be Feinstein’s allies on the committee who escalated.
On 17 December, the CIA sent its choice for its next top attorney, Caroline Krass, to the committee for a nomination hearing. Shortly before the hearing, a CIA attorney, Darrin Hostetler, met with Jones in private, once again sparring over the agency’s response. Once again, Jones reminded Hostetler that the Panetta Review supported his conclusions. “I’m done talking to you, Dan,” Hostetler said, ending the meeting. An agency official who worked with Jones at the satellite location apologized to Jones for Hostetler’s behavior.
During the hearing, Mark Udall, a Colorado Democrat, lit into Krass. Unexpectedly, Udall mentioned the existence of the Panetta Review in public for the first time, demanding the disclosure of the document. Among the reasons for Udall’s fervor: in August 2013, after the CIA had condemned the committee report in contradiction of the Panetta Review, its former chief lawyer Stephen Preston told Udall in writing that the agency provided the committee with “inaccurate information related to aspects of the [torture] program” – a major point the CIA was now disputing.
Jones was visible on the staff dias behind Udall. Hostetler walked out of the hearing.
“Then things totally went to hell,” Jones said.
Unbeknownst to Jones, Udall or Feinstein, the public reference to the Panetta Review so alarmed the CIA as to prompt a milestone event in its history. Since 2009, the CIA had maintained a firewalled network on which the Senate could view internal documents relevant to its torture inquiry. It was known as RDINet, for “rendition, detention and interrogation.” By mutual agreement, the CIA was not supposed to access the Senate’s side of the network for any reason aside from picayune IT help. But at least five agency officials would surreptitiously transgress the network firewalls, view the Senate investigators’ work, and reconstruct Jones’s emails. Their rationale, established in a subsequent internal investigation, was to determine if the Senate deliberately exploited an evident flaw in the architecture of the network to digitally acquire the Panetta Review – which they did not want the Senate to have.
It was an extreme step. After Congress overhauled the CIA in the 1970s, the agency was not supposed to spy on Americans domestically except in extremely circumscribed circumstances. Now it was turning its spywork onto the elected officials tasked with overseeing it.
“Every officer is clearly, I would say rigorously, trained that CIA is a foreign intelligence service. We have a legal mandate to conduct intelligence operations on non-American entities ... It’s very clear, the distinction, and then elaborate, the working out of what may and may not be done,” said Glenn Carle, a retired CIA officer.
Carle continued: “For the agency to penetrate a firewalled network used by the United States Senate is flat criminal activity. There’s no discussion about it. I’m literally laughing. You can’t rationalize that.”
Oregon Democratic senator Ron Wyden flatly called it “spying on our staff”. The CIA vigorously disputes that characterization. CIA director Brennan, whom Carle praises as an “honorable guy”, was informed about the firewall breach almost as soon as the agency began its fateful operations.
Beginning on 9 January 2014, agency officials created a “dummy account” that looked to the network like it came from Jones’s team, something beyond the limits of the 2009 agreements between the committee and the CIA about network access. They logged in, searched for the Panetta Review on the Senate side of the network and found it. The next day, they searched their own side to determine if they had the Panetta Review. They didn’t find it, presumed they might have been hacked, and set to find out what happened. They took screenshots of what they found. Yet never once did they discuss their findings with Jones, whose technical ineptitude might have disabused them of the theory that he had either deliberately hacked a classified network or been savvy enough to exploit a vulnerability.
According to a subsequent inspector-general report, an unnamed CIA official – whom Vice News’s Jason Leopold has reported is Hostetler – got the agency’s Counterintelligence Center involved on 9 January by saying there was a “forthcoming D/CIA tasking”, a reference to Brennan. The unnamed official said Brennan wanted a report by “that afternoon” into Senate use of the network, stretching from 1 March 2009 to 31 December 2013. The CIA inspector general, David Buckley, would later find that “conflicting information” prevented him from determining “whether any of D/CIA Brennan’s senior staff, much less the DCI himself, approved any of the taskings.” But an agency attorney, unusually, gave an operational order.
Brennan learned at least the outline of what would become the breach on 9 January, the very first day it was conceived. The director would later say he knew then of some review, but did not specifically recall if anyone briefing him explained how they knew the location of, among other documents, the Panetta Review. Brennan discussed the issue with CIA personnel over the next two days, and tasked them to “use whatever means necessary” to find out how it was that the documents appeared on the Senate side of the firewall. Brennan said he only asked “are we sure” the documents were genuine CIA material and that he desired a better understanding of how RDINet worked.
While Brennan would later say he denied directing anyone at the CIA to examine the Senate’s use of the system, the technical staff, examined and passed around screenshots of what was on the Senate network drives. By 11 January – a Saturday – the CIA official Vice identified as Hostetler spoke with Brennan and learned Brennan had discussed the issue with Denis McDonough, the White House chief of staff and a powerful ally. The official would later say he believed himself authorized by Brennan “to gather the necessary agency personnel and components who would normally be involved in such an effort”.
Hostetler, through a representative, declined to speak with the Guardian. Nor did the White House make McDonough available for an interview. But an official said: “Neither Denis McDonough nor anyone else at the White House was notified of the searches before they began. As such, and to be sure, the White House did not authorize them.”
On Monday, 13 January, a meeting gathered, chaired by the third-highest ranking official at CIA, Meroe Park, and attended by Counterintelligence Center personnel. Their concern was determining if there was an “innocent” or nefarious explanation for the Senate’s acquisition of the Panetta Review, something Brennan would need to know. The meeting heard how it would be possible to perform an operation to find out, one that would involve intrusive digital forensics on their Senate overseers. An attendee would later say no one in attendance objected.
Brennan learned of this discussion the next day, 14 January. Multiple official accounts have Brennan essentially alarmed to hear that senior counterintelligence officials were involved in what could easily be understood as spying on the Senate. Brennan indicated a concern that the optics of the situation were perilous for the CIA. He ordered the work stopped – what he would tell the inspector general was a “stand down” order. The official Vice reported is Hostetler characterized it merely as a “pause”.
On 15 January 2014, Brennan called an emergency discussion with Feinstein and top committee Republican Saxby Chambliss. They met in a secured room on the Hill. Brennan had brought the acting top CIA lawyer, Robert Eatinger, whom Jones had discovered had provided legal advice to the agency’s Counterterrorist Center, which was deeply involved in the torture. If Brennan was worried, he did not convey that to the senators.
Brennan read a statement. He revealed that the agency had conducted a “search” of the computer network it had set up for the Senate – unlike every previous investigation at the agency, the CIA had demanded it only produce documentation on torture at a facility it controlled – and discovered that the Senate investigators had inappropriate access to the Panetta Review. The staffers, he said, had to be “disciplined”. A CIA network, Brennan was implying, had been compromised. (The CIA would not comment on this meeting, but pointed to a 27 January letter from Brennan to Feinstein to characterize it.)
Jones understood Brennan’s statement to be a demand for the senators to fire him. Brennan didn’t use his name, but Jones was the chief investigator, the one constantly and most consistently working at the CIA facility. On multiple levels, Jones was shocked. Not only was the director of the CIA telling his legislative overseers that their choice to conduct oversight was unacceptable, he was revealing that the network operated in a manner that the Senate thought “was impossible”, with the CIA able to access the Senate’s investigative work.
Even more startling: although someone at the CIA in 2010 had placed the Panetta Review on the Senate side of the network, Brennan was suggesting that Jones was a master hacker, able to force his way into the CIA’s classified files. In truth, Jones was barely tech-literate: “I am really good at Microsoft Word. That’s it.”
But Brennan wasn’t describing the basis for believing his claims. Instead, he told Chambliss and Feinstein the search would not be the CIA’s last. To protect the security of an agency network, Brennan said, the agency would need to conduct more searches, ostensibly to find whatever vulnerability he implied Jones had exploited, and proposed a joint search with Senate assistance.
Feinstein, in a letter sent two days later, refused. She requested that Brennan not conduct the searches, offering to suspend staff access to the network, and reminded him of the “separation of powers issues” at stake in the CIA taking such an aggressive step against the Senate.
But despite both Feinstein’s refusal and Brennan’s “stand down” order, the CIA continued looking deeper into the Senate’s use of the network.
On 16 January, according to CIA documents acquired through the Freedom of Information Act by Vice News’s Leopold, the agency called upon a digital unit called the Cyber Blue Team, which hunts for vulnerabilities in agency networks. The next day – the day Feinstein put her refusal to join an inquiry into her staff in writing to Brennan – Cyber Blue Team reviewed “forensically reconstructed emails” between Senate staffers only accessible on their side of RDINet. The team prepared a report that same day assessing the Senate use of the network, delivering it to “senior agency leadership” on 21 January.
Jones had been able to convince Senate Republicans naturally inclined to believe the CIA that his meager tech skills undermined Brennan’s accusation. But that could hardly win them over in what they were seeing as a battle between the CIA and Senate Democrats. Combative, Jones was prepared to testify about the episode. But while he had no family and little to lose, several of his colleagues on the investigative staff had spouses, children and career ambitions. They would be the casualties of escalation. He opted against testimony. The option would ultimately be overtaken by events.
The CIA’s move against the Senate committee quickly showed signs of backfiring. In late January, Buckley, the CIA’s inspector general, confronted Brennan about the on-network searches of the Senate investigators. He told Brennan that he needed to open an investigation – and Brennan responded by ordering Buckley to investigate. But Buckley went further than Brennan apparently calculated, and referred the matter to the US justice department. Suddenly, the CIA was back in a position its leaders thought it had escaped – in the crosshairs of potential prosecution.
Buckley – who declined comment to the Guardian – told the committee of his referral on 4 February, only a week after he started examine the breach. It leaked to the New York Times on 4 March.
Agency attorney Eatinger launched what the CIA considered a response necessitated by a theft concern and the committee considered a counter-gambit. On 7 February, the senior lawyer made his own criminal referral to the justice department: this one on Jones, ostensibly for improper network access. Eatinger had a conflict: Jones’s narrative referred to his role in the torture program 1,600 times. It took mere weeks for an account of Senate staff taking the Panetta Review from the CIA offsite location to leak to reporters. To Jones, the whole thing validated the apocryphal credo of spywork: deny everything, admit nothing, make counter-accusations.
Everything had escalated past the point of no return. Jones had finished his edits and rewrites to the committee report. It awaited a Senate vote on declassification. But now all of that was overshadowed by a fight with the CIA that had moved into the realm of back and forth criminal accusation.
Jones thought the accusation was self-evidently absurd, enough to discredit the agency as engaged in bald-faced retaliation and wounding itself politically. “I was wrong about that. It was actually pretty astute of them,” he recollected.
Efforts at de-escalation failed. In mid-January, within days of the network search, Brennan briefed the Senate majority leader, Democrat Harry Reid of Nevada. Reid, who is close to Feinstein, told him that in the interests of avoiding a crisis, Brennan ought to apologize. Brennan flatly refused, insisting the agency had nothing to apologize for.
The White House counsel, Kathryn Ruemmler, attempted to contain the damage. Ruemmler came to the Hill that winter, in a series of meetings with both the full committee and its leadership, to take the temperature of Senate-CIA relations down from their white-hot level. According to participants in those meetings, if Brennan was unyielding, Ruemmler was balanced. Feinstein brought up the 2010 document disappearance as a prologue for the current imbroglio. Ruemmler told her she had a valid point.
Reid, a pivotal ally for the White House on Capitol Hill, did not want to be backed into a corner. After the criminal referral, Reid spoke to McDonough and conveyed that if Brennan was unwilling to apologize, he was not willing to defend Brennan should the episode become public. McDonough was noncommittal. A week later, Reid received a phone call from Barack Obama.
To Reid’s surprise, the president defended the CIA’s actions. Obama rattled off the CIA’s side of the story: the Senate staff had taken CIA documents and the agency had no choice but to handle the matter as it did.
“Mr President,” Reid said, “I wish you could hear yourself.”
According to a former senior Senate aide, the episode stiffened Reid’s inclination to defend Feinstein to the hilt. In early March, Reid contacted Feinstein, who was considering exposing the episode, and assured her of his full support in the battle to come. “We gave them ample opportunity” to settle the issue, he told her.
On 11 March, Jones got word that Feinstein was going to say something on the Senate floor. He had written her a speech detailing the origins and developments of the oversight battle with Langley, but he didn’t know if Feinstein would actually deliver it. Feinstein got along well with Brennan on other matters, and taking on Brennan carried the risk of taking on Obama, the president Brennan had cultivated since Obama’s first campaign.
Instead, Feinstein laid into the CIA with an intensity unseen since the 1970s Church Committee, where legislators described an unbridled agency that spied on Americans as eagerly as they spied on foreign adversaries. The agency searches “may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function,” Feinstein charged.
She foreshadowed the next fight within the committee and wrapped it in the constitution: declassifying the torture report. Not only would a public version ensure torture “will never again be considered or permitted”, Feinstein said, but the CIA’s reprisal against Jones meant the Senate faced a “defining moment” testing whether the committee could effectively perform its oversight, “or whether our work can be thwarted by those we oversee”.
Feinstein’s speech occurred hours before Brennan had committed to a public appearance at the Council on Foreign Relations. Moderator Andrea Mitchell could not refrain from soliciting a response to Feinstein. To the incredulity of Jones, Brennan, who had been at the very least briefed on all of this from inception – who had told Feinstein and Chambliss on 15 January it had happened – denied everything.
“As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean we wouldn’t do that. I mean, that’s just beyond the – you know, the scope of reason in terms of what we would do,” Brennan said.
The years of clashing with the CIA behind closed doors had now exploded into public view. The CIA contacted reporters to provide the agency’s preferred version of events, and observers took a scalpel to distinctions between searching and hacking. The implications of Feinstein’s charges were profound. If the CIA would lie about torture, what else would it lie about? If it would spy on its legislative overseers, who wouldn’t the agency spy on?
Shocked by Brennan’s denial, Reid had the Senate sergeant-at-arms conduct his own investigation. Reid wrote to the attorney general, Eric Holder, on 19 March to take into account the “serious separation of powers implications” of the CIA’s search, which he said “seemingly attempted to intimidate [the agency’s] overseers”.
The sergeant-at-arms inquiry has been a forgotten aspect of the saga. One knowledgeable source said it ended up inconclusive. CIA’s Trapani noted: “Despite pledges of an investigation by the Senate sergeant-at-arms, there is no corresponding public record that sheds light on or explains fully the actions of [committee] staff.”
Feinstein’s speech had another impact, this one intentional. On 3 April, the committee voted 11-3 to authorize a declassified version of the torture report. Senate Republicans who had long rejected the report’s findings joined Democrats who embraced them. Even Chambliss voted in favor of declassification, saying : “We need to get this behind us.”
Yet the CIA had an ally Feinstein may not have appreciated: the Oval Office. The White House announced that same day that the CIA itself would lead the declassification review. Formally, a White House official told the Guardian, Director of National Intelligence James Clapper spearheaded it. The intelligence community would effectively choose which of its embarrassments to spare the public from learning.
Carl Levin, a longtime Democratic senator from Michigan who retired in 2015, said he was “disappointed” with the White House’s overall lack of support for the committee.
“The White House declined to lead the declassification effort, and instead gave the declassification review to the very agency, the CIA, that the Senate committee was investigating,” Levin told the Guardian.
Brennan’s major ally at the White House was someone Jones knew well from a decade before. Chief of staff McDonough had encouraged Jones to join the security apparatus when Jones was an aspirant Senate staffer and McDonough was a Senate leadership aide. McDonough was one of Obama’s closest confidants, with him on his Senate staff , through the presidential campaign and to his tenure as a deputy national security adviser. He assumed his current job right as Brennan, another White House senior staffer and campaign veteran, went to Langley.
“Denis played a much more central role in this than any of us thought he would,” Jones said. “The feeling was that he just backed CIA.”
A criminal prosecution does not have to advance particularly far to ruin someone’s life. The arcane provisions of Senate rules place senior staff in an exquisite financial bind. Such staff are banned from receiving gifts worth more than a pittance, as those gifts might be used to purchase influence. But included in that category is pro-bono legal assistance.
While senators themselves can get legal aid if needed through campaign funding, they cannot themselves provide it to their staff. Feinstein and her predecessor as committee chair, Jay Rockefeller, set up a defense fund, according to a knowledgable source, but couldn’t actually use it to protect aides facing legal jeopardy.
Jones learned all of that when he had to seek legal representation. The cost of the retainer quoted to him made him wince: as a teacher, an FBI officer and a Senate staffer, “I had not amassed a large amount of wealth.”
But Jones was single. He did not have children. The potential prosecution of his colleagues on the committee staff who did was having a “devastating” effect. Emotionally, psychologically, the search scandal hung over everything they did, especially as they were about to do final battle with the CIA over declassification. The longer the process draws out, he said, “you can destroy someone financially.”
But on 30 April, less than a month after the committee voted to declassify the report’s executive summary, the justice department sent word to the CIA attorney that it had “no prosecutorial interest” in pursuing a case against the Senate staffers. It would be the beginning of the Senate’s vindication on this controversy.
Jones took no victory lap. His pace was grueling, and they had not even begun the declassification discussions. The Republican senators were still musing about making him testify. The CIA-Senate fight loomed over every conversation with the White House, and in the committee. During that spring and summer, Brennan would still arrive on Capitol Hill to brief the senators on various intelligence matters. Substantive discussion would be consumed by legislators demanding more information about the various investigations around the search, and Brennan declining.
Brennan’s position became untenable on 18 July. Buckley, the inspector general, concluded in a classified report that at least five CIA officials – including, conspicuously, two attorneys – “improperly accessed [committee] Majority staff shared drives on the RDINet”. In an ironic echo of the torture report’s findings that the CIA misled the government about its detainee abuse, Buckley called out a “lack of candor” among the three technical staff he interviewed. And he found that Eatinger’s prosecutorial referral from February was “unfounded” as it went beyond the findings that the Cyber Blue Team had reached about Senate behavior on RDINet.
Although Buckley concluded that the committee and the CIA did not reach “signed memorand[a] of understanding”, his report attached several 2009-era CIA-Senate letters referring to consensus that the only CIA access to RDINet’s committee side would come from IT staff “for IT maintenance and support”. (“I think we are all in agreement on the computer issue,” an unnamed CIA official had written to the committee back on 8 June 2009.) One of those CIA documents was even called Memorandum of Understanding. It would be an issue in a skirmish to come.
The CIA didn’t want the committee staff to have access to Buckley’s report, even in classified form, as it contained the names of agency officials and sensitive units implicated in the episode. But within days, Buckley conveyed his findings to committee senators. While Jones could not attend a members-only briefing, he quickly learned that senators were told, unequivocally, that he had done nothing wrong.
“At that point, I felt significantly vindicated,” Jones said.
“The CIA’s own inspector general found that CIA inappropriately searched the Senate’s computers,” said Levin, the former senator.
“The CIA and the White House held no one accountable for these actions.”
Feinstein had a conversation with Brennan shortly afterward. On 31 July, Feinstein put out a statement that included a devastating line: “Director Brennan apologized for these actions.” It was less categorical than many on the committee wanted. Vice’s Leopold would ultimately acquire and publish a letter from Brennan formally apologizing, but the director never sent it, opting to apologize “in person for the specific search that went beyond his instructions at the time,” the CIA’s Trapani said. But Feinstein got her desired result: headlines around the world indicated Brennan had taken a step back. Udall immediately called on Brennan to resign. Speculation shot through Washington over whether he would.
“He admitted that the CIA’s actions were inappropriate, but he continues to deny that searching through a Senate committee’s files and emails is spying on the committee. It’s pretty bizarre when the CIA director doesn’t seem to know what the word ‘spying’ means,” said Wyden.
Jay Rockefeller, the West Virginia Democrat and former committee chairman, did not join Udall in calling for Brennan’s resignation. But, he said, “I did express my profound disappointment to Director Brennan on more than one occasion. My assessment at the time was that, despite Director Brennan having perhaps irreparably damaged his credibility with much of the committee, he was still capable of at least partially redeeming himself by holding people at the CIA accountable and publicly apologizing.” There would be no such public apology.
Barely half a year after the CIA had turned its powers against its overseers, the committee had won two consecutive victories. Chambliss, the panel’s top Republican, called on the CIA to deal with the five offending officials “very harshly”. But the fight was far from over.
Brennan announced he would convene an “accountability board” to examine the network-search debacle. More crucially, the very next day, the CIA was set to deliver to the committee the version of the torture report it was comfortable with the public seeing, as Congress and the political world departed for the traditional August recess. If the committee had wanted to release that heavily blacked-out version, it could have done so, and avoided its next battle with the CIA – and the White House.
Unlike in 2010, the White House would not mediate between the agency and the committee. It would simply back John Brennan.
Barack Obama, the president who ended the CIA’s torture program by executive order his second full day in office, entered the White House briefing room on 1 August 2014. “We tortured some folks,” he memorably said.
What Obama said afterward received less attention, but Jones can recount it to this day.
“It’s important for us not to feel too sanctimonious in retrospect about the tough job those folks [at the CIA] had,” said the president.
The proposed declassifications the CIA would deliver back to the committee reflected that sentiment and far more. It would be difficult for a reader to feel “sanctimonious” about torture, as it would be difficult to understand what the CIA had actually done.
When Jones had drafted the report over the years, he had not taken a hardline approach to transparency. The former FBI official deliberately obscured many things he considered reasonably outside the public’s knowledge. No draft of the report had ever contained the true name of a CIA official involved in the program, nor the countries where the black sites were. All were given cover names, and not even the agency’s official cover names at that. It was how it had been in previous committee reports. Jones considered it uncontroversial.
But the CIA fought release of all of that. The entire saga of Khalid Sheikh Mohammed, the admitted 9/11 mastermind whom the CIA waterboarded the most – a story the report told at great length – was blacked out, known in official parlance as “redaction”. The CIA would not permit publication of the names of the 119 detainees the committee could find the agency detained. No country’s cover name could be public. No pseudonym of a CIA officer could be public.
“They redacted all references to Allah,” Jones said. “Like, really? Under what national security concern?”
The effect of the redactions was to obscure the story of what happened. CIA officials involved in the torture had persisted, thrived and been promoted within the agency, including individuals whom Jones had concluded helped mislead the Bush administration and the public. Jones had told, with cover names, that aspect of the story. Readers would have found it difficult to follow detainees from black site to black site, and more so to place pseudonymous interrogators at any. “You couldn’t follow the narrative arc,” Jones said.
The CIA’s black magic marker looked cynical when considering that numerous senior agency officials involved with torture had published memoirs covering much of this material. CIA director George Tenet, ex-lawyer John Rizzo, even Jose Rodriguez, whose destruction of videotaped evidence of torture had occasioned the report – all had books out, books that had been cleared by the CIA’s pre-publication review. The agency, with support from the White House, had permitted Hollywood film-makers unprecedented access for the 2012 film Zero Dark Thirty, which told the CIA’s torture story the way the agency wanted it told – and in contradiction of what the Senate had found actually happened.
After years of fighting with the CIA for access and accuracy, and brawling over accusations of criminality, Jones’s new brief was to argue for rolling back the redactions. In 2010, when the CIA removed documents from the Senate side of RDINet, both sides turned to the White House to mediate the dispute. Now, the Senate negotiators were across the table from the CIA and the White House together. Meetings that lasted “hours and hours” from August to December occurred at the White House – some even in the Situation Room – or on Capitol Hill, not the CIA. Jones remembered going practically paragraph by paragraph over declassification in the 525-page executive summary.
For the CIA’s part, cover names for agency officials would end up being fig leaves, once attentive readers began poring over the report.
“A pseudonym itself is little protection when a host of other information about that officer is made public and will be seen and possibly utilized by adversaries and foreign intelligence services,” said agency spokesman Trapani.
Trapani called the declassification discussions “designed to preserve the committee’s narrative of the CIA program for the public, while also protecting critical national security interests – including the safety and security of US personnel and ongoing intelligence operations.”
McDonough was a presence in the meetings, even those where he delegated attendance to National Security Council staffers or White House attorneys. The fact that the White House chief of staff would personally oversee the negotiations spoke to the gravity of the issue. Jones cannot recall a single issue on which McDonough or his team backed the Senate, and only when the agency would agree to relent would McDonough concur. There would be no help from the White House.
“During the process,” a White House official said, “Denis represented the views of the president and advocated on behalf of the redactions the inter-agency [process] assessed necessary to protect sensitive information.”
McDonough’s position was particularly startling to Jones considering that Obama had taken an explicit position on classification. An executive order Obama issued in December 2009, intended to enforce his pledge to run the “most transparent administration in history”, explicitly barred the agencies from “conceal[ing] violations of law, inefficiency, or administrative error”. Citing national security exemptions required an argument for why release would harm US “national defense or foreign relations”, rather than being an end of discussion.
“The administration didn’t come to us with arguments for why they were redacting information, other than ‘this is hurtful to national security.’ What we would do would be to go to the statute and say, ‘This is unclassified, because the law says this, this, this and this,’ and they would just say, ‘Well, it’s a national security issue, we can’t release this,” Jones said. “‘The world will end if this information is out,’ and then you find out it’s been out for four years – either they’ve officially declassified it, or they allowed CIA officers to talk about it in books.”
Sometimes the administration wouldn’t even do that; or after the negotiators conceded to the Senate there was no national security basis for classification, the White House and CIA had a fallback contention, one for which Jones said made the discussions like beating his head against a wall.
“There’s two arguments. You would put the lives of the CIA officers at risk, the lives of their families at risk. And then, the latter one, which always seemed to be the real reason because the other stuff just didn’t hold any water, was that this will really hurt morale at the CIA, this is a morale issue. And they would openly say that, as if that was a reasonable response to making something classified,” said Jones.
At those points, Jones would pull out Obama’s own executive order and quote it to the CIA, the White House staff, even McDonough. “We had it with us at every one of our meetings,” he said.
Nor was the agency consistent. It would not permit the Senate to publish pseudonyms of its officers. But it relented on allowing the report to use them for the contractor psychologists James Mitchell and Bruce Jessen, who designed the torture program and even participated in interrogations. Although any argument about protecting the safety of the lives and families of agency officials would apply equally to Mitchell and Jessen, the report calls them, unlike any CIA employee, “Swigert” and “Dunbar”.
The drawn-out discussions would not always involve staff. In mid-October, McDonough flew to San Francisco to speak with Feinstein without Jones present. Feinstein pleaded for the use of agency cover names to appear in the report, but McDonough refused, even as she asked for fewer and fewer of them.
“It was a battle we ended up losing. We wanted to include our own pseudonyms so you could follow a particular individual through the report. We went right up until the end,” Jones said.
But the White House and the CIA could afford a drawn-out process in a way Feinstein and her staff could not. It was a midterm election year, and the Democrats were widely forecast to lose the Senate, a circumstance that came to pass on election day, 4 November. Feinstein lost her gavel. A GOP that had vacillated between unsupportive of the torture inquiry and hostile to it would be in power come January. The race was truly on.
“After the election, the declassification of the report is at stake, whether it ever becomes public,” Jones said. “We were not in a position of power.”
Exasperation with McDonough exploded immediately after the Democrats lost the election. McDonough attended a Senate Democratic caucus meeting. Feinstein, whose demeanor is universally described as calm, excoriated him – “just fucking floored him”, the former senior Senate aide said – accusing McDonough of being relieved the Democrats lost the chamber because now the administration could run out the clock on making the report public. Feinstein said McDonough had violated agreements they had reached on redactions and called the administration duplicitous.
McDonough’s response echoed Obama’s August press conference. He said that the families of hardworking CIA officials would be vulnerable in the event that the Senate’s disclosure of their identities led to physical danger. It was an incendiary charge, given that no CIA agent’s real name appeared even in the classified version of the report.
Most party-caucus meetings center around a lunch discussion and break when senators need to leave for votes. But anger at McDonough, both personal and as a proxy for the White House, was white-hot. They held McDonough at the meeting through the voting and came back to vent more spleen.
“They really said flat out to McDonough, ‘You’re protecting what happened, you’re no better than what had happened in the Bush administration,’” said the ex-senior aide present.
“This was a very spirited conversation,” said Wyden, who was in attendance.
“It was very tense,” said Jones, one of the few staffers at the meeting.
There was another issue, one not before revealed, that went down to the wire – the very last thing on which McDonough and the CIA would not yield an inch.
Senior CIA officials had assured the Senate that the personnel performing the interrogations were vetted rigorously. Former director Michael Hayden told the committee in 2007 that “all of those involved in the questioning of detainees are carefully chosen and screened for demonstrated professional judgment and maturity.”
It was not always true. The committee had learned that some CIA interrogators had records of violent acts in their personal lives – to include domestic abuse and even sexual assault. Even without listing names or pseudonyms, Langley refused to let that fact become public, no matter how tenuously connected to US national security it was.
“CIA conducted extensive analysis of the possible use of possible pseudonyms in the [Senate] report and determined that to do so would risk publicly revealing the true names of those officers, as well as the names of officers not associated with the program, and the identification of their family members,” said the CIA’s Trapani. “The administration did not support making disclosures that would put US government personnel and their families at additional risk.”
It was Friday 5 December 2014. The lame-duck session of Congress was nearly ended, and with it, Democratic control of the Senate. The committee, the CIA and McDonough had reached agreement on the entire report, except for the section – a single paragraph – alluding to the questionable backgrounds of its interrogators.
McDonough would not back down. “It was a long meeting,” Jones remembered, and the CIA was not even present. McDonough said the administration would agree to release the report “as is”. But first the paragraph had to change.
The meeting became an endurance test. Finally, the committee representatives found a degree of acceptable language from McDonough.
Page 470 of the report, long after the narrative had ended, referred to “a number of personnel whose backgrounds include notable derogatory information calling into question their eligibility for employment, their access to classified information, and their participation in CIA interrogation activities.” Most of that information was known to the agency. The report continued: “This group of officers included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.”
“I was like, ‘Alright, this doesn’t do it justice, but at least people will get the idea,’” Jones said. “This was done to water down the backgrounds of people involved in the program.”
Six years after Jones began looking into CIA torture, it seemed like a section of the Senate report would finally see the light of day. But at the end of the meeting, the committee received an unexpected surprise. John Kerry, the secretary of state, longtime Massachusetts senator, war hero and 2004 Democratic presidential nominee, called Feinstein. It would be a near-death experience for the torture inquiry.
Kerry was urging his old Senate colleagues to delay the report’s release. It was a tenuous moment globally, he argued. The coalition against the Islamic State would be jeopardized by an inflammatory report about the CIA torturing Muslims. Americans’ lives and property abroad could be jeopardized.
By that point, there were many aspects of the CIA’s entreaties that no longer held sway with Democratic senators. But Kerry could not be dismissed out of hand. Many senators on the committee had close working relationships, even friendships, with Kerry. They knew him not to inflate threats.
Technically, all Kerry was asking was a delay in the report’s release. But the political reality, with the Republicans set to take over the Senate, was that delay was fatal. There was another inescapable certainty. Should the worst occur, and violence follow the release of the torture report, every senator whose name graced its cover would have to answer for it.
Had James Clapper, the director of national intelligence, not intervened at that critical moment, it is possible that the Democratic senators would have capitulated and buried the report.
By the weekend, the committee received a five-page document prepared by Clapper’s office (ODNI), the entity nominally in charge of the 16 intelligence agencies. It purported to forecast the outcome of the report’s release. Jones described it as “a farce”.
ODNI’s assessment was riddled with factual errors, and from those errors extrapolated dire consequences, including violence and damage to intelligence relationships. It falsely claimed the report, even in classified form, identified countries that hosted black sites. By that point, even committee senators reliant on staff for details of the report could see how wrong it was. When asked, a senior ODNI official telegraphed indifference to the accuracy of the document. Jones recalls the official saying: “It doesn’t matter what’s in the report. It matters what people think is.”
If the administration’s goal was to suppress the torture report, Clapper pulled defeat from the jaws of victory. No longer were senators fixated on Kerry’s warning. According to multiple sources, they were convinced an administration they wanted badly to believe was on their side was willing to insult their intelligence, all in the service of helping the CIA cover up an act the president himself had vociferously opposed.
“It was a poorly done intelligence product with clear factual errors and it inaccurately described the study we were about to release,” said Rockefeller.
“Ultimately, yes, I think for some senators, the angle and clear errors in that intelligence assessment played a role in their decision to support the release of the redacted Executive Summary of the Study. My only regret is we did not work to declassify more.”
Timothy Barrett, an ODNI spokesman, said the directorship supported the redacted release of the summary but “had a duty to warn policymakers about the possible consequences of release of the report in order to enable preparation and effective measures to protect American citizens and interests. This assessment could not be limited to the text of the report in a vacuum, but had to consider the effect of its release in light of other information that had already been reported – and public perceptions.”
On 9 December, the committee released the executive summary. It sent shockwaves through Washington and around the world, and demands for additional accountability swelled. But it yielded no riots, no violence and no death.
“That lack of violence does not reflect a lack of threats. In fact, the government took steps to mitigate threats — including from terrorists — in the wake of the report’s release,” Barrett said.
“The intelligence community stands by its assessment of the potential consequences from release of the report. Indeed, in discussions with senior representatives of the ODNI, members of the committee acknowledged that there were risks to releasing the report.”
Jones’s life had been consumed by the inquiry.
“Dan Jones always, always, tried to keep this focused on the facts,” said Wyden.
“He spent six years of his life riding point on this. I felt that every time we spoke about it, he was reflecting the kind of professionalism and objectivity, which is what under normal circumstances gets you a bipartisan inquiry.”
But Jones felt relief more than he felt victory, particularly when he observed the gap between what he wanted in the report’s executive summary and what the public ultimately saw.
“After the Senate is lost in November, and you’re not getting any sense of urgency from the White House or the CIA on the redaction process, and they’re holding their ground pretty firm, the report that’s out is not the report we would have chosen to put out. It is what it is.”
According to a White House official, the fact that the committee released a report that was “93% declassified” – a figure also cited by the CIA – testified to the “stringent review and the narrow criteria employed in determining redactions” – criteria intended to “obscure sensitive information whose release would pose a significant danger to our national security or to the security of US government personnel.”
Regarding the percentage of the review declassified, Jones observed: “It’s really what you redact, not the percentage. Are those redactions consistent with Obama’s executive order on declassification?”
theguardian.com/us-news/2016/sep/10/cia-senate-investigation-constitutional-crisis-daniel-jones
'A constitutional crisis': the CIA turns on the Senate
Tensions flare between the CIA and the Senate in the fight to release the report on torture – leading the agency to spy on its own legislative overseers
By Spencer Ackerman
It was 11pm, in the chill of January, but Daniel Jones needed a run around the Capitol.
During the winter of early 2014 Jones’s only chance for serenity was these late hours. The CIA was demanding his boss, Senate intelligence committee chairwoman Dianne Feinstein, fire him. Feinstein’s Republican colleagues, once supportive of Jones, were demanding he testify.
Testimony was treacherous. Sheldon Whitehouse, a Rhode Island senator and former federal prosecutor, warned Jones that asserting his rights against self-incrimination or seeking a lawyer’s counsel could give committee Republicans a political lever against his highly controversial work. The CIA would soon formally insist that the US justice department actually prosecute Jones, the Senate staffer who had devoted over six years of his life to investigating the CIA’s infamous post-9/11 torture program.
Jones, a former FBI counter-terrorism analyst, wanted to testify. The CIA had pushed him past the point where he could back down. Its lies, documented in a 6,700-page secret report which Jones was constantly rewriting that winter, were compounding: to Congress, to Barack Obama, to George W Bush, to the press, to the public. The lies were not random misstatements. They were directional, in the service of covering up the brutality of what it did to at least 119 terrorist suspects – some clearly innocent – it held in a global network of secret prisons. Jones was on the verge of exposing the coverup. As he saw it, the personalized intensity of the CIA’s attacks on him, and the unprecedented steps they were taking, validated the account he had compiled after combing through over 6m classified CIA documents.
Jones put his Bose earbuds in, cued up a Tragically Hip record, and ran.
It couldn’t be that long of a lap, just enough to clear his head and work the frustrations out. Jones would need to be back in the Senate intelligence committee’s secured, classified offices very soon. Each day brought a new calculation: it might be the last that the committee had access to its own classified report. The CIA had gone “into war mode” with its congressional overseers, Jones told the Guardian. There was no choice but to work deeply into the night, leaving Capitol Hill at 3 or 4 in the morning, with breaks only for a run, and then back to work by 8 or 9 to repeat the cycle.
Less than a year had passed since the CIA had communicated to the Senate that its exhaustive torture report, drawn from millions of the agency’s own documents, was significantly incorrect. Less than a year had passed since Jones, unbeknownst to the CIA, had locked in a committee safe crucial portions of one such record, called the Panetta Review, in which the CIA had come to the same conclusions about torture as Jones had. But now the agency was letting the committee know it was not playing around – and that it was coming for Jones himself.
From August to September 2013 Jones had more than a dozen meetings with agency officials lasting 60 hours to attempt to reconcile their objections with findings in his 6,700-page classified report. It got to the point where Jones would take a whiteboard with him. That way, he could sketch out the timelines he found in CIA cables for when the agency learned specific aspects of its terrorism intelligence. He attempted to demonstrate contradictions from what the CIA said publicly – and how the claimed basis for those CIA statements occurred before this-or-that torture session the agency said was the genesis of the information.
“It should be noted that at no point in those discussions did [Senate] staff ask CIA to reconcile the CIA June 2013 response to the Panetta Review,” said CIA spokesman Ryan Trapani. “In fact, at no time in those discussions did [committee] staff indicate that they had a copy of the Panetta Review.”
In September 2013, Jones told Feinstein that continuing such fact-free discussions was pointless. Feinstein was concerned Jones was too close to the report to be objective, but she backed his decision. With the report stuck in limbo, she gave him a new challenge: redo the report, incorporating aspects of the CIA’s response, and putting what they found to be wrong about that response in the footnotes.
“Basically, her thing was: make them own their response,” Jones said. The effect was to expand a 250-page executive summary to over 500 pages, “doubling the amount of information”, all as the CIA continued to object. The agency and the committee were arraying for battle.
Just before Thanksgiving, Feinstein formally wrote to CIA director John Brennan requesting the entire 1,000-plus page Panetta Review. Jones had not taken the full document back from the satellite location, only the sections necessary to show busy senators that the agency concluded it had misled its political masters about the futility of its torture. The CIA said it would not provide it. This time, it would be Feinstein’s allies on the committee who escalated.
On 17 December, the CIA sent its choice for its next top attorney, Caroline Krass, to the committee for a nomination hearing. Shortly before the hearing, a CIA attorney, Darrin Hostetler, met with Jones in private, once again sparring over the agency’s response. Once again, Jones reminded Hostetler that the Panetta Review supported his conclusions. “I’m done talking to you, Dan,” Hostetler said, ending the meeting. An agency official who worked with Jones at the satellite location apologized to Jones for Hostetler’s behavior.
During the hearing, Mark Udall, a Colorado Democrat, lit into Krass. Unexpectedly, Udall mentioned the existence of the Panetta Review in public for the first time, demanding the disclosure of the document. Among the reasons for Udall’s fervor: in August 2013, after the CIA had condemned the committee report in contradiction of the Panetta Review, its former chief lawyer Stephen Preston told Udall in writing that the agency provided the committee with “inaccurate information related to aspects of the [torture] program” – a major point the CIA was now disputing.
Jones was visible on the staff dias behind Udall. Hostetler walked out of the hearing.
“Then things totally went to hell,” Jones said.
Unbeknownst to Jones, Udall or Feinstein, the public reference to the Panetta Review so alarmed the CIA as to prompt a milestone event in its history. Since 2009, the CIA had maintained a firewalled network on which the Senate could view internal documents relevant to its torture inquiry. It was known as RDINet, for “rendition, detention and interrogation.” By mutual agreement, the CIA was not supposed to access the Senate’s side of the network for any reason aside from picayune IT help. But at least five agency officials would surreptitiously transgress the network firewalls, view the Senate investigators’ work, and reconstruct Jones’s emails. Their rationale, established in a subsequent internal investigation, was to determine if the Senate deliberately exploited an evident flaw in the architecture of the network to digitally acquire the Panetta Review – which they did not want the Senate to have.
It was an extreme step. After Congress overhauled the CIA in the 1970s, the agency was not supposed to spy on Americans domestically except in extremely circumscribed circumstances. Now it was turning its spywork onto the elected officials tasked with overseeing it.
“Every officer is clearly, I would say rigorously, trained that CIA is a foreign intelligence service. We have a legal mandate to conduct intelligence operations on non-American entities ... It’s very clear, the distinction, and then elaborate, the working out of what may and may not be done,” said Glenn Carle, a retired CIA officer.
Carle continued: “For the agency to penetrate a firewalled network used by the United States Senate is flat criminal activity. There’s no discussion about it. I’m literally laughing. You can’t rationalize that.”
Oregon Democratic senator Ron Wyden flatly called it “spying on our staff”. The CIA vigorously disputes that characterization. CIA director Brennan, whom Carle praises as an “honorable guy”, was informed about the firewall breach almost as soon as the agency began its fateful operations.
Beginning on 9 January 2014, agency officials created a “dummy account” that looked to the network like it came from Jones’s team, something beyond the limits of the 2009 agreements between the committee and the CIA about network access. They logged in, searched for the Panetta Review on the Senate side of the network and found it. The next day, they searched their own side to determine if they had the Panetta Review. They didn’t find it, presumed they might have been hacked, and set to find out what happened. They took screenshots of what they found. Yet never once did they discuss their findings with Jones, whose technical ineptitude might have disabused them of the theory that he had either deliberately hacked a classified network or been savvy enough to exploit a vulnerability.
According to a subsequent inspector-general report, an unnamed CIA official – whom Vice News’s Jason Leopold has reported is Hostetler – got the agency’s Counterintelligence Center involved on 9 January by saying there was a “forthcoming D/CIA tasking”, a reference to Brennan. The unnamed official said Brennan wanted a report by “that afternoon” into Senate use of the network, stretching from 1 March 2009 to 31 December 2013. The CIA inspector general, David Buckley, would later find that “conflicting information” prevented him from determining “whether any of D/CIA Brennan’s senior staff, much less the DCI himself, approved any of the taskings.” But an agency attorney, unusually, gave an operational order.
Brennan learned at least the outline of what would become the breach on 9 January, the very first day it was conceived. The director would later say he knew then of some review, but did not specifically recall if anyone briefing him explained how they knew the location of, among other documents, the Panetta Review. Brennan discussed the issue with CIA personnel over the next two days, and tasked them to “use whatever means necessary” to find out how it was that the documents appeared on the Senate side of the firewall. Brennan said he only asked “are we sure” the documents were genuine CIA material and that he desired a better understanding of how RDINet worked.
While Brennan would later say he denied directing anyone at the CIA to examine the Senate’s use of the system, the technical staff, examined and passed around screenshots of what was on the Senate network drives. By 11 January – a Saturday – the CIA official Vice identified as Hostetler spoke with Brennan and learned Brennan had discussed the issue with Denis McDonough, the White House chief of staff and a powerful ally. The official would later say he believed himself authorized by Brennan “to gather the necessary agency personnel and components who would normally be involved in such an effort”.
Hostetler, through a representative, declined to speak with the Guardian. Nor did the White House make McDonough available for an interview. But an official said: “Neither Denis McDonough nor anyone else at the White House was notified of the searches before they began. As such, and to be sure, the White House did not authorize them.”
On Monday, 13 January, a meeting gathered, chaired by the third-highest ranking official at CIA, Meroe Park, and attended by Counterintelligence Center personnel. Their concern was determining if there was an “innocent” or nefarious explanation for the Senate’s acquisition of the Panetta Review, something Brennan would need to know. The meeting heard how it would be possible to perform an operation to find out, one that would involve intrusive digital forensics on their Senate overseers. An attendee would later say no one in attendance objected.
Brennan learned of this discussion the next day, 14 January. Multiple official accounts have Brennan essentially alarmed to hear that senior counterintelligence officials were involved in what could easily be understood as spying on the Senate. Brennan indicated a concern that the optics of the situation were perilous for the CIA. He ordered the work stopped – what he would tell the inspector general was a “stand down” order. The official Vice reported is Hostetler characterized it merely as a “pause”.
On 15 January 2014, Brennan called an emergency discussion with Feinstein and top committee Republican Saxby Chambliss. They met in a secured room on the Hill. Brennan had brought the acting top CIA lawyer, Robert Eatinger, whom Jones had discovered had provided legal advice to the agency’s Counterterrorist Center, which was deeply involved in the torture. If Brennan was worried, he did not convey that to the senators.
Brennan read a statement. He revealed that the agency had conducted a “search” of the computer network it had set up for the Senate – unlike every previous investigation at the agency, the CIA had demanded it only produce documentation on torture at a facility it controlled – and discovered that the Senate investigators had inappropriate access to the Panetta Review. The staffers, he said, had to be “disciplined”. A CIA network, Brennan was implying, had been compromised. (The CIA would not comment on this meeting, but pointed to a 27 January letter from Brennan to Feinstein to characterize it.)
Jones understood Brennan’s statement to be a demand for the senators to fire him. Brennan didn’t use his name, but Jones was the chief investigator, the one constantly and most consistently working at the CIA facility. On multiple levels, Jones was shocked. Not only was the director of the CIA telling his legislative overseers that their choice to conduct oversight was unacceptable, he was revealing that the network operated in a manner that the Senate thought “was impossible”, with the CIA able to access the Senate’s investigative work.
Even more startling: although someone at the CIA in 2010 had placed the Panetta Review on the Senate side of the network, Brennan was suggesting that Jones was a master hacker, able to force his way into the CIA’s classified files. In truth, Jones was barely tech-literate: “I am really good at Microsoft Word. That’s it.”
But Brennan wasn’t describing the basis for believing his claims. Instead, he told Chambliss and Feinstein the search would not be the CIA’s last. To protect the security of an agency network, Brennan said, the agency would need to conduct more searches, ostensibly to find whatever vulnerability he implied Jones had exploited, and proposed a joint search with Senate assistance.
Feinstein, in a letter sent two days later, refused. She requested that Brennan not conduct the searches, offering to suspend staff access to the network, and reminded him of the “separation of powers issues” at stake in the CIA taking such an aggressive step against the Senate.
But despite both Feinstein’s refusal and Brennan’s “stand down” order, the CIA continued looking deeper into the Senate’s use of the network.
On 16 January, according to CIA documents acquired through the Freedom of Information Act by Vice News’s Leopold, the agency called upon a digital unit called the Cyber Blue Team, which hunts for vulnerabilities in agency networks. The next day – the day Feinstein put her refusal to join an inquiry into her staff in writing to Brennan – Cyber Blue Team reviewed “forensically reconstructed emails” between Senate staffers only accessible on their side of RDINet. The team prepared a report that same day assessing the Senate use of the network, delivering it to “senior agency leadership” on 21 January.
Jones had been able to convince Senate Republicans naturally inclined to believe the CIA that his meager tech skills undermined Brennan’s accusation. But that could hardly win them over in what they were seeing as a battle between the CIA and Senate Democrats. Combative, Jones was prepared to testify about the episode. But while he had no family and little to lose, several of his colleagues on the investigative staff had spouses, children and career ambitions. They would be the casualties of escalation. He opted against testimony. The option would ultimately be overtaken by events.
The CIA’s move against the Senate committee quickly showed signs of backfiring. In late January, Buckley, the CIA’s inspector general, confronted Brennan about the on-network searches of the Senate investigators. He told Brennan that he needed to open an investigation – and Brennan responded by ordering Buckley to investigate. But Buckley went further than Brennan apparently calculated, and referred the matter to the US justice department. Suddenly, the CIA was back in a position its leaders thought it had escaped – in the crosshairs of potential prosecution.
Buckley – who declined comment to the Guardian – told the committee of his referral on 4 February, only a week after he started examine the breach. It leaked to the New York Times on 4 March.
Agency attorney Eatinger launched what the CIA considered a response necessitated by a theft concern and the committee considered a counter-gambit. On 7 February, the senior lawyer made his own criminal referral to the justice department: this one on Jones, ostensibly for improper network access. Eatinger had a conflict: Jones’s narrative referred to his role in the torture program 1,600 times. It took mere weeks for an account of Senate staff taking the Panetta Review from the CIA offsite location to leak to reporters. To Jones, the whole thing validated the apocryphal credo of spywork: deny everything, admit nothing, make counter-accusations.
Everything had escalated past the point of no return. Jones had finished his edits and rewrites to the committee report. It awaited a Senate vote on declassification. But now all of that was overshadowed by a fight with the CIA that had moved into the realm of back and forth criminal accusation.
Jones thought the accusation was self-evidently absurd, enough to discredit the agency as engaged in bald-faced retaliation and wounding itself politically. “I was wrong about that. It was actually pretty astute of them,” he recollected.
Efforts at de-escalation failed. In mid-January, within days of the network search, Brennan briefed the Senate majority leader, Democrat Harry Reid of Nevada. Reid, who is close to Feinstein, told him that in the interests of avoiding a crisis, Brennan ought to apologize. Brennan flatly refused, insisting the agency had nothing to apologize for.
The White House counsel, Kathryn Ruemmler, attempted to contain the damage. Ruemmler came to the Hill that winter, in a series of meetings with both the full committee and its leadership, to take the temperature of Senate-CIA relations down from their white-hot level. According to participants in those meetings, if Brennan was unyielding, Ruemmler was balanced. Feinstein brought up the 2010 document disappearance as a prologue for the current imbroglio. Ruemmler told her she had a valid point.
Reid, a pivotal ally for the White House on Capitol Hill, did not want to be backed into a corner. After the criminal referral, Reid spoke to McDonough and conveyed that if Brennan was unwilling to apologize, he was not willing to defend Brennan should the episode become public. McDonough was noncommittal. A week later, Reid received a phone call from Barack Obama.
To Reid’s surprise, the president defended the CIA’s actions. Obama rattled off the CIA’s side of the story: the Senate staff had taken CIA documents and the agency had no choice but to handle the matter as it did.
“Mr President,” Reid said, “I wish you could hear yourself.”
According to a former senior Senate aide, the episode stiffened Reid’s inclination to defend Feinstein to the hilt. In early March, Reid contacted Feinstein, who was considering exposing the episode, and assured her of his full support in the battle to come. “We gave them ample opportunity” to settle the issue, he told her.
On 11 March, Jones got word that Feinstein was going to say something on the Senate floor. He had written her a speech detailing the origins and developments of the oversight battle with Langley, but he didn’t know if Feinstein would actually deliver it. Feinstein got along well with Brennan on other matters, and taking on Brennan carried the risk of taking on Obama, the president Brennan had cultivated since Obama’s first campaign.
Instead, Feinstein laid into the CIA with an intensity unseen since the 1970s Church Committee, where legislators described an unbridled agency that spied on Americans as eagerly as they spied on foreign adversaries. The agency searches “may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function,” Feinstein charged.
She foreshadowed the next fight within the committee and wrapped it in the constitution: declassifying the torture report. Not only would a public version ensure torture “will never again be considered or permitted”, Feinstein said, but the CIA’s reprisal against Jones meant the Senate faced a “defining moment” testing whether the committee could effectively perform its oversight, “or whether our work can be thwarted by those we oversee”.
Feinstein’s speech occurred hours before Brennan had committed to a public appearance at the Council on Foreign Relations. Moderator Andrea Mitchell could not refrain from soliciting a response to Feinstein. To the incredulity of Jones, Brennan, who had been at the very least briefed on all of this from inception – who had told Feinstein and Chambliss on 15 January it had happened – denied everything.
“As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean we wouldn’t do that. I mean, that’s just beyond the – you know, the scope of reason in terms of what we would do,” Brennan said.
The years of clashing with the CIA behind closed doors had now exploded into public view. The CIA contacted reporters to provide the agency’s preferred version of events, and observers took a scalpel to distinctions between searching and hacking. The implications of Feinstein’s charges were profound. If the CIA would lie about torture, what else would it lie about? If it would spy on its legislative overseers, who wouldn’t the agency spy on?
Shocked by Brennan’s denial, Reid had the Senate sergeant-at-arms conduct his own investigation. Reid wrote to the attorney general, Eric Holder, on 19 March to take into account the “serious separation of powers implications” of the CIA’s search, which he said “seemingly attempted to intimidate [the agency’s] overseers”.
The sergeant-at-arms inquiry has been a forgotten aspect of the saga. One knowledgeable source said it ended up inconclusive. CIA’s Trapani noted: “Despite pledges of an investigation by the Senate sergeant-at-arms, there is no corresponding public record that sheds light on or explains fully the actions of [committee] staff.”
Feinstein’s speech had another impact, this one intentional. On 3 April, the committee voted 11-3 to authorize a declassified version of the torture report. Senate Republicans who had long rejected the report’s findings joined Democrats who embraced them. Even Chambliss voted in favor of declassification, saying : “We need to get this behind us.”
Yet the CIA had an ally Feinstein may not have appreciated: the Oval Office. The White House announced that same day that the CIA itself would lead the declassification review. Formally, a White House official told the Guardian, Director of National Intelligence James Clapper spearheaded it. The intelligence community would effectively choose which of its embarrassments to spare the public from learning.
Carl Levin, a longtime Democratic senator from Michigan who retired in 2015, said he was “disappointed” with the White House’s overall lack of support for the committee.
“The White House declined to lead the declassification effort, and instead gave the declassification review to the very agency, the CIA, that the Senate committee was investigating,” Levin told the Guardian.
Brennan’s major ally at the White House was someone Jones knew well from a decade before. Chief of staff McDonough had encouraged Jones to join the security apparatus when Jones was an aspirant Senate staffer and McDonough was a Senate leadership aide. McDonough was one of Obama’s closest confidants, with him on his Senate staff , through the presidential campaign and to his tenure as a deputy national security adviser. He assumed his current job right as Brennan, another White House senior staffer and campaign veteran, went to Langley.
“Denis played a much more central role in this than any of us thought he would,” Jones said. “The feeling was that he just backed CIA.”
A criminal prosecution does not have to advance particularly far to ruin someone’s life. The arcane provisions of Senate rules place senior staff in an exquisite financial bind. Such staff are banned from receiving gifts worth more than a pittance, as those gifts might be used to purchase influence. But included in that category is pro-bono legal assistance.
While senators themselves can get legal aid if needed through campaign funding, they cannot themselves provide it to their staff. Feinstein and her predecessor as committee chair, Jay Rockefeller, set up a defense fund, according to a knowledgable source, but couldn’t actually use it to protect aides facing legal jeopardy.
Jones learned all of that when he had to seek legal representation. The cost of the retainer quoted to him made him wince: as a teacher, an FBI officer and a Senate staffer, “I had not amassed a large amount of wealth.”
But Jones was single. He did not have children. The potential prosecution of his colleagues on the committee staff who did was having a “devastating” effect. Emotionally, psychologically, the search scandal hung over everything they did, especially as they were about to do final battle with the CIA over declassification. The longer the process draws out, he said, “you can destroy someone financially.”
But on 30 April, less than a month after the committee voted to declassify the report’s executive summary, the justice department sent word to the CIA attorney that it had “no prosecutorial interest” in pursuing a case against the Senate staffers. It would be the beginning of the Senate’s vindication on this controversy.
Jones took no victory lap. His pace was grueling, and they had not even begun the declassification discussions. The Republican senators were still musing about making him testify. The CIA-Senate fight loomed over every conversation with the White House, and in the committee. During that spring and summer, Brennan would still arrive on Capitol Hill to brief the senators on various intelligence matters. Substantive discussion would be consumed by legislators demanding more information about the various investigations around the search, and Brennan declining.
Brennan’s position became untenable on 18 July. Buckley, the inspector general, concluded in a classified report that at least five CIA officials – including, conspicuously, two attorneys – “improperly accessed [committee] Majority staff shared drives on the RDINet”. In an ironic echo of the torture report’s findings that the CIA misled the government about its detainee abuse, Buckley called out a “lack of candor” among the three technical staff he interviewed. And he found that Eatinger’s prosecutorial referral from February was “unfounded” as it went beyond the findings that the Cyber Blue Team had reached about Senate behavior on RDINet.
Although Buckley concluded that the committee and the CIA did not reach “signed memorand[a] of understanding”, his report attached several 2009-era CIA-Senate letters referring to consensus that the only CIA access to RDINet’s committee side would come from IT staff “for IT maintenance and support”. (“I think we are all in agreement on the computer issue,” an unnamed CIA official had written to the committee back on 8 June 2009.) One of those CIA documents was even called Memorandum of Understanding. It would be an issue in a skirmish to come.
The CIA didn’t want the committee staff to have access to Buckley’s report, even in classified form, as it contained the names of agency officials and sensitive units implicated in the episode. But within days, Buckley conveyed his findings to committee senators. While Jones could not attend a members-only briefing, he quickly learned that senators were told, unequivocally, that he had done nothing wrong.
“At that point, I felt significantly vindicated,” Jones said.
“The CIA’s own inspector general found that CIA inappropriately searched the Senate’s computers,” said Levin, the former senator.
“The CIA and the White House held no one accountable for these actions.”
Feinstein had a conversation with Brennan shortly afterward. On 31 July, Feinstein put out a statement that included a devastating line: “Director Brennan apologized for these actions.” It was less categorical than many on the committee wanted. Vice’s Leopold would ultimately acquire and publish a letter from Brennan formally apologizing, but the director never sent it, opting to apologize “in person for the specific search that went beyond his instructions at the time,” the CIA’s Trapani said. But Feinstein got her desired result: headlines around the world indicated Brennan had taken a step back. Udall immediately called on Brennan to resign. Speculation shot through Washington over whether he would.
“He admitted that the CIA’s actions were inappropriate, but he continues to deny that searching through a Senate committee’s files and emails is spying on the committee. It’s pretty bizarre when the CIA director doesn’t seem to know what the word ‘spying’ means,” said Wyden.
Jay Rockefeller, the West Virginia Democrat and former committee chairman, did not join Udall in calling for Brennan’s resignation. But, he said, “I did express my profound disappointment to Director Brennan on more than one occasion. My assessment at the time was that, despite Director Brennan having perhaps irreparably damaged his credibility with much of the committee, he was still capable of at least partially redeeming himself by holding people at the CIA accountable and publicly apologizing.” There would be no such public apology.
Barely half a year after the CIA had turned its powers against its overseers, the committee had won two consecutive victories. Chambliss, the panel’s top Republican, called on the CIA to deal with the five offending officials “very harshly”. But the fight was far from over.
Brennan announced he would convene an “accountability board” to examine the network-search debacle. More crucially, the very next day, the CIA was set to deliver to the committee the version of the torture report it was comfortable with the public seeing, as Congress and the political world departed for the traditional August recess. If the committee had wanted to release that heavily blacked-out version, it could have done so, and avoided its next battle with the CIA – and the White House.
Unlike in 2010, the White House would not mediate between the agency and the committee. It would simply back John Brennan.
Barack Obama, the president who ended the CIA’s torture program by executive order his second full day in office, entered the White House briefing room on 1 August 2014. “We tortured some folks,” he memorably said.
What Obama said afterward received less attention, but Jones can recount it to this day.
“It’s important for us not to feel too sanctimonious in retrospect about the tough job those folks [at the CIA] had,” said the president.
The proposed declassifications the CIA would deliver back to the committee reflected that sentiment and far more. It would be difficult for a reader to feel “sanctimonious” about torture, as it would be difficult to understand what the CIA had actually done.
When Jones had drafted the report over the years, he had not taken a hardline approach to transparency. The former FBI official deliberately obscured many things he considered reasonably outside the public’s knowledge. No draft of the report had ever contained the true name of a CIA official involved in the program, nor the countries where the black sites were. All were given cover names, and not even the agency’s official cover names at that. It was how it had been in previous committee reports. Jones considered it uncontroversial.
But the CIA fought release of all of that. The entire saga of Khalid Sheikh Mohammed, the admitted 9/11 mastermind whom the CIA waterboarded the most – a story the report told at great length – was blacked out, known in official parlance as “redaction”. The CIA would not permit publication of the names of the 119 detainees the committee could find the agency detained. No country’s cover name could be public. No pseudonym of a CIA officer could be public.
“They redacted all references to Allah,” Jones said. “Like, really? Under what national security concern?”
The effect of the redactions was to obscure the story of what happened. CIA officials involved in the torture had persisted, thrived and been promoted within the agency, including individuals whom Jones had concluded helped mislead the Bush administration and the public. Jones had told, with cover names, that aspect of the story. Readers would have found it difficult to follow detainees from black site to black site, and more so to place pseudonymous interrogators at any. “You couldn’t follow the narrative arc,” Jones said.
The CIA’s black magic marker looked cynical when considering that numerous senior agency officials involved with torture had published memoirs covering much of this material. CIA director George Tenet, ex-lawyer John Rizzo, even Jose Rodriguez, whose destruction of videotaped evidence of torture had occasioned the report – all had books out, books that had been cleared by the CIA’s pre-publication review. The agency, with support from the White House, had permitted Hollywood film-makers unprecedented access for the 2012 film Zero Dark Thirty, which told the CIA’s torture story the way the agency wanted it told – and in contradiction of what the Senate had found actually happened.
After years of fighting with the CIA for access and accuracy, and brawling over accusations of criminality, Jones’s new brief was to argue for rolling back the redactions. In 2010, when the CIA removed documents from the Senate side of RDINet, both sides turned to the White House to mediate the dispute. Now, the Senate negotiators were across the table from the CIA and the White House together. Meetings that lasted “hours and hours” from August to December occurred at the White House – some even in the Situation Room – or on Capitol Hill, not the CIA. Jones remembered going practically paragraph by paragraph over declassification in the 525-page executive summary.
For the CIA’s part, cover names for agency officials would end up being fig leaves, once attentive readers began poring over the report.
“A pseudonym itself is little protection when a host of other information about that officer is made public and will be seen and possibly utilized by adversaries and foreign intelligence services,” said agency spokesman Trapani.
Trapani called the declassification discussions “designed to preserve the committee’s narrative of the CIA program for the public, while also protecting critical national security interests – including the safety and security of US personnel and ongoing intelligence operations.”
McDonough was a presence in the meetings, even those where he delegated attendance to National Security Council staffers or White House attorneys. The fact that the White House chief of staff would personally oversee the negotiations spoke to the gravity of the issue. Jones cannot recall a single issue on which McDonough or his team backed the Senate, and only when the agency would agree to relent would McDonough concur. There would be no help from the White House.
“During the process,” a White House official said, “Denis represented the views of the president and advocated on behalf of the redactions the inter-agency [process] assessed necessary to protect sensitive information.”
McDonough’s position was particularly startling to Jones considering that Obama had taken an explicit position on classification. An executive order Obama issued in December 2009, intended to enforce his pledge to run the “most transparent administration in history”, explicitly barred the agencies from “conceal[ing] violations of law, inefficiency, or administrative error”. Citing national security exemptions required an argument for why release would harm US “national defense or foreign relations”, rather than being an end of discussion.
“The administration didn’t come to us with arguments for why they were redacting information, other than ‘this is hurtful to national security.’ What we would do would be to go to the statute and say, ‘This is unclassified, because the law says this, this, this and this,’ and they would just say, ‘Well, it’s a national security issue, we can’t release this,” Jones said. “‘The world will end if this information is out,’ and then you find out it’s been out for four years – either they’ve officially declassified it, or they allowed CIA officers to talk about it in books.”
Sometimes the administration wouldn’t even do that; or after the negotiators conceded to the Senate there was no national security basis for classification, the White House and CIA had a fallback contention, one for which Jones said made the discussions like beating his head against a wall.
“There’s two arguments. You would put the lives of the CIA officers at risk, the lives of their families at risk. And then, the latter one, which always seemed to be the real reason because the other stuff just didn’t hold any water, was that this will really hurt morale at the CIA, this is a morale issue. And they would openly say that, as if that was a reasonable response to making something classified,” said Jones.
At those points, Jones would pull out Obama’s own executive order and quote it to the CIA, the White House staff, even McDonough. “We had it with us at every one of our meetings,” he said.
Nor was the agency consistent. It would not permit the Senate to publish pseudonyms of its officers. But it relented on allowing the report to use them for the contractor psychologists James Mitchell and Bruce Jessen, who designed the torture program and even participated in interrogations. Although any argument about protecting the safety of the lives and families of agency officials would apply equally to Mitchell and Jessen, the report calls them, unlike any CIA employee, “Swigert” and “Dunbar”.
The drawn-out discussions would not always involve staff. In mid-October, McDonough flew to San Francisco to speak with Feinstein without Jones present. Feinstein pleaded for the use of agency cover names to appear in the report, but McDonough refused, even as she asked for fewer and fewer of them.
“It was a battle we ended up losing. We wanted to include our own pseudonyms so you could follow a particular individual through the report. We went right up until the end,” Jones said.
But the White House and the CIA could afford a drawn-out process in a way Feinstein and her staff could not. It was a midterm election year, and the Democrats were widely forecast to lose the Senate, a circumstance that came to pass on election day, 4 November. Feinstein lost her gavel. A GOP that had vacillated between unsupportive of the torture inquiry and hostile to it would be in power come January. The race was truly on.
“After the election, the declassification of the report is at stake, whether it ever becomes public,” Jones said. “We were not in a position of power.”
Exasperation with McDonough exploded immediately after the Democrats lost the election. McDonough attended a Senate Democratic caucus meeting. Feinstein, whose demeanor is universally described as calm, excoriated him – “just fucking floored him”, the former senior Senate aide said – accusing McDonough of being relieved the Democrats lost the chamber because now the administration could run out the clock on making the report public. Feinstein said McDonough had violated agreements they had reached on redactions and called the administration duplicitous.
McDonough’s response echoed Obama’s August press conference. He said that the families of hardworking CIA officials would be vulnerable in the event that the Senate’s disclosure of their identities led to physical danger. It was an incendiary charge, given that no CIA agent’s real name appeared even in the classified version of the report.
Most party-caucus meetings center around a lunch discussion and break when senators need to leave for votes. But anger at McDonough, both personal and as a proxy for the White House, was white-hot. They held McDonough at the meeting through the voting and came back to vent more spleen.
“They really said flat out to McDonough, ‘You’re protecting what happened, you’re no better than what had happened in the Bush administration,’” said the ex-senior aide present.
“This was a very spirited conversation,” said Wyden, who was in attendance.
“It was very tense,” said Jones, one of the few staffers at the meeting.
There was another issue, one not before revealed, that went down to the wire – the very last thing on which McDonough and the CIA would not yield an inch.
Senior CIA officials had assured the Senate that the personnel performing the interrogations were vetted rigorously. Former director Michael Hayden told the committee in 2007 that “all of those involved in the questioning of detainees are carefully chosen and screened for demonstrated professional judgment and maturity.”
It was not always true. The committee had learned that some CIA interrogators had records of violent acts in their personal lives – to include domestic abuse and even sexual assault. Even without listing names or pseudonyms, Langley refused to let that fact become public, no matter how tenuously connected to US national security it was.
“CIA conducted extensive analysis of the possible use of possible pseudonyms in the [Senate] report and determined that to do so would risk publicly revealing the true names of those officers, as well as the names of officers not associated with the program, and the identification of their family members,” said the CIA’s Trapani. “The administration did not support making disclosures that would put US government personnel and their families at additional risk.”
It was Friday 5 December 2014. The lame-duck session of Congress was nearly ended, and with it, Democratic control of the Senate. The committee, the CIA and McDonough had reached agreement on the entire report, except for the section – a single paragraph – alluding to the questionable backgrounds of its interrogators.
McDonough would not back down. “It was a long meeting,” Jones remembered, and the CIA was not even present. McDonough said the administration would agree to release the report “as is”. But first the paragraph had to change.
The meeting became an endurance test. Finally, the committee representatives found a degree of acceptable language from McDonough.
Page 470 of the report, long after the narrative had ended, referred to “a number of personnel whose backgrounds include notable derogatory information calling into question their eligibility for employment, their access to classified information, and their participation in CIA interrogation activities.” Most of that information was known to the agency. The report continued: “This group of officers included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.”
“I was like, ‘Alright, this doesn’t do it justice, but at least people will get the idea,’” Jones said. “This was done to water down the backgrounds of people involved in the program.”
Six years after Jones began looking into CIA torture, it seemed like a section of the Senate report would finally see the light of day. But at the end of the meeting, the committee received an unexpected surprise. John Kerry, the secretary of state, longtime Massachusetts senator, war hero and 2004 Democratic presidential nominee, called Feinstein. It would be a near-death experience for the torture inquiry.
Kerry was urging his old Senate colleagues to delay the report’s release. It was a tenuous moment globally, he argued. The coalition against the Islamic State would be jeopardized by an inflammatory report about the CIA torturing Muslims. Americans’ lives and property abroad could be jeopardized.
By that point, there were many aspects of the CIA’s entreaties that no longer held sway with Democratic senators. But Kerry could not be dismissed out of hand. Many senators on the committee had close working relationships, even friendships, with Kerry. They knew him not to inflate threats.
Technically, all Kerry was asking was a delay in the report’s release. But the political reality, with the Republicans set to take over the Senate, was that delay was fatal. There was another inescapable certainty. Should the worst occur, and violence follow the release of the torture report, every senator whose name graced its cover would have to answer for it.
Had James Clapper, the director of national intelligence, not intervened at that critical moment, it is possible that the Democratic senators would have capitulated and buried the report.
By the weekend, the committee received a five-page document prepared by Clapper’s office (ODNI), the entity nominally in charge of the 16 intelligence agencies. It purported to forecast the outcome of the report’s release. Jones described it as “a farce”.
ODNI’s assessment was riddled with factual errors, and from those errors extrapolated dire consequences, including violence and damage to intelligence relationships. It falsely claimed the report, even in classified form, identified countries that hosted black sites. By that point, even committee senators reliant on staff for details of the report could see how wrong it was. When asked, a senior ODNI official telegraphed indifference to the accuracy of the document. Jones recalls the official saying: “It doesn’t matter what’s in the report. It matters what people think is.”
If the administration’s goal was to suppress the torture report, Clapper pulled defeat from the jaws of victory. No longer were senators fixated on Kerry’s warning. According to multiple sources, they were convinced an administration they wanted badly to believe was on their side was willing to insult their intelligence, all in the service of helping the CIA cover up an act the president himself had vociferously opposed.
“It was a poorly done intelligence product with clear factual errors and it inaccurately described the study we were about to release,” said Rockefeller.
“Ultimately, yes, I think for some senators, the angle and clear errors in that intelligence assessment played a role in their decision to support the release of the redacted Executive Summary of the Study. My only regret is we did not work to declassify more.”
Timothy Barrett, an ODNI spokesman, said the directorship supported the redacted release of the summary but “had a duty to warn policymakers about the possible consequences of release of the report in order to enable preparation and effective measures to protect American citizens and interests. This assessment could not be limited to the text of the report in a vacuum, but had to consider the effect of its release in light of other information that had already been reported – and public perceptions.”
On 9 December, the committee released the executive summary. It sent shockwaves through Washington and around the world, and demands for additional accountability swelled. But it yielded no riots, no violence and no death.
“That lack of violence does not reflect a lack of threats. In fact, the government took steps to mitigate threats — including from terrorists — in the wake of the report’s release,” Barrett said.
“The intelligence community stands by its assessment of the potential consequences from release of the report. Indeed, in discussions with senior representatives of the ODNI, members of the committee acknowledged that there were risks to releasing the report.”
Jones’s life had been consumed by the inquiry.
“Dan Jones always, always, tried to keep this focused on the facts,” said Wyden.
“He spent six years of his life riding point on this. I felt that every time we spoke about it, he was reflecting the kind of professionalism and objectivity, which is what under normal circumstances gets you a bipartisan inquiry.”
But Jones felt relief more than he felt victory, particularly when he observed the gap between what he wanted in the report’s executive summary and what the public ultimately saw.
“After the Senate is lost in November, and you’re not getting any sense of urgency from the White House or the CIA on the redaction process, and they’re holding their ground pretty firm, the report that’s out is not the report we would have chosen to put out. It is what it is.”
According to a White House official, the fact that the committee released a report that was “93% declassified” – a figure also cited by the CIA – testified to the “stringent review and the narrow criteria employed in determining redactions” – criteria intended to “obscure sensitive information whose release would pose a significant danger to our national security or to the security of US government personnel.”
Regarding the percentage of the review declassified, Jones observed: “It’s really what you redact, not the percentage. Are those redactions consistent with Obama’s executive order on declassification?”
Third Guardian Article
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theguardian.com/us-news/2016/sep/11/cia-torture-report-aftermath-daniel-jones-senate-investigation
No looking back: the CIA torture report's aftermath
The CIA attacks the Senate’s published findings on torture, a report that was the result of six years of work by Daniel Jones. Now he sets out to defend it
By Spencer Ackerman
“I want to be absolutely clear with our people and the world. The United States does not torture,” said George W Bush on 6 September 2006.
Bush was, for the first time, acknowledging the existence of the program that Senate intelligence committee staff investigator Daniel Jones would later expose as taking power drills to the heads of captured men; making them stand with their arms stretched above their heads for days at a time; leaving at least one of them naked until he froze to death; waterboarding them to the point of catatonia as bubbles rose from their open mouths; and inserting pureed food into their rectums while claiming it was necessary for delivering nutrients.
Details of those procedures were outlined in the 525 pages which CIA director John Brennan, Barack Obama and White House chief of staff Denis McDonough allowed to become public.
The CIA’s response to Jones’s report was split into two corps, one official and one not. The agency itself would no longer defend torture outright because that would contradict the Obama White House’s position on the unacceptability of torture. Instead, the agency would say that tortured men produced valuable intelligence, just not necessarily as the result of torture, and that the Senate could not definitively prove the torture did not produce valuable intelligence.
Brennan gave a press conference following the release of the report in December 2014. It began with him spending five minutes reciting the unfolding developments of the 9/11 terrorist attacks and crescendoed with him calling the relationship between torture and useful intelligence “unknowable”. Jones’ boss, the driving force behind the report, California Democratic Senator Dianne Feinstein unexpectedly live-tweeted responses to Brennan’s press conference as it progressed, creating the hashtag #ReadTheReport.
The second corps consisted of retired CIA directors, a group known colloquially as the “Formers”. They laid into the Senate committee with a vigor that Brennan, who still had to answer to it, could not. The Formers, who would in September 2015 attack the report in a book called Rebuttal, called the committee’s work a partisan hit job. They disdained it for not interviewing CIA officials involved in the program – all the while ignoring the fact that committee Republicans and Obama’s justice department prevented Jones from conducting those interviews. They reiterated the insistence that torture yielded a wealth of intelligence and derided the Senate report for what they called its leaps in logic. One of them was former acting director Michael Morell, a frequent television guest, who would publish a memoir in May 2015 recapitulating much of the standard CIA line.
“Morell, he presents himself as this thoughtful guy, who’s really in the weeds and knows things, but he went out and talked about how the report was inaccurate, he wrote a book with inaccuracies. He stated publicly that he had only read 300 pages of the executive summary and told Feinstein he hadn’t read the full report,” Jones said.
“It was the same problem with the agency, over and over again. Either you are knowingly spreading inaccurate information, which is pretty terrible, or you just don’t want to know, and you take a briefing with inaccurate information and you just repeat it.”
CIA spokesman Ryan Trapani said that the agency did not coordinate its response with the Formers. The Senate committee “withdrew its approval to let former officers read the executive summary prior to its release to the public, so some were not able to read or prepare responses to the accusations until [the committee] released its executive summary to the public,” Trapani said.
Glenn Carle was a CIA officer from 1985 to 2007. He knew Brennan while at the agency and respects the director’s “subtle and fair mind”. After 9/11, Carle was called upon to interrogate a terrorism suspect he now believes is innocent. Although he did not use the brutal techniques called out in the Senate report, the experience deeply affected Carle, who has become a vocal critic of the agency’s post-9/11 torture.
While Carle said the CIA often holds a legitimate feeling of besiegement against outside criticism – “We’re always the ones left holding the bag after we’re asked to mine the harbors or overthrow the government,” he noted – the fury of the CIA reactions to the Senate troubled him.
“I was dismayed by the response, which I thought was in parts intellectually shoddy, simple-minded, unnecessarily defensive, circle-the-wagons reactive and wrong and harmful,” Carle said.
He continued: “We were well outside of the bounds, and it was obvious. And part of the defense the agency used, the Bush administration used, defenders, proponents, Republicans use, is that ‘You have to understand the context of the times, we were all afraid there was going to be another attack, we had to act.’ That’s all bullshit. No, you cannot do that. Our job is not to react emotionally, and in fear, and reflexively, which is what that is a justification for doing. Our job is to get it right. Our job is to see through that and have the courage to act correctly.”
The CIA was not alone in attacking the report. The Senate committee’s Republicans, who had pulled out of the inquiry in September 2009, savaged it as a Democratic witchhunt – a critical boost for a CIA that wanted to avoid the narrative that it was pitted against the Senate.
While in 2009 the committee Republicans had urged the CIA not to grant interviews while a parallel justice department inquiry unfolded, now they attacked their Democratic colleagues for not renewing a request once the DoJ inquiry was concluded in 2012: “The committee had a window of opportunity to invite these relevant witnesses in for interviews, but apparently decided against that course of action.”
Jones said: “The Republicans were never supportive of interviews. Period. They just played games with this.”
As the CIA’s rebuttal strategy began to unfold, Democrat Mark Udall took to the Senate floor. Udall was less constrained than any intelligence committee member. He had lost his re-election campaign and had only weeks remaining in the chamber. Udall had earlier flirted with reading the entire report into the Senate record and daring the administration to prosecute him. Instead, he excoriated the White House for aligning with the “flippant and dismissive” CIA against the Senate.
“While the study clearly shows that the CIA’s detention and interrogation program itself was deeply flawed, the deeper, more endemic problem lies in a CIA, assisted by a White House, that continues to try to cover up the truth,” Udall said on 10 December 2014. He accused the White House of “letting the CIA do whatever it likes, even if its efforts are aimed at actively undermining the president’s stated [torture] policies.”
Udall continued: “Director Brennan and the CIA today are continuing to willfully provide inaccurate information and misrepresent the efficacy of torture. In other words, the CIA is lying. This is not a problem of the past.”
The report was the result of six years of Jones’s work. The seventh year was consumed by two tasks: defending the torture report against its CIA and Republican critics; and attempting to entrench its purpose – preventing torture – into law. Success would vary.
Jones still wasn’t speaking in public. He was a Senate committee staffer, although he recognized, now that North Carolina Republican Richard Burr was chairman, his position on the committee was untenable.
In his first month in office, Burr took an extraordinary step. The Senate had delivered copies of the classified report across the executive branch to the various agencies – the justice department, the Pentagon, and so forth – with equities in it. Burr, in his first month as chairman, formally requested the copies back. Burr’s home-state newspaper, the Raleigh News & Observer, editorialized that the senator preferred “to hide the misdeeds of the CIA’s secret prisons rather than have others in government review what happened”.
The ACLU, which had sued for disclosure of the document, filed an emergency motion to block Burr. In response, the administration pledged to “preserve the status quo”, meaning that it wouldn’t give the classified report back. If there was an opportunity to learn lessons from careful, private reading of the full report, the agencies did not take it – they did not even remove the 6,700-page classified report from its packaging – an issue complicated by freedom of information lawsuits that mired the documents in bureaucratic limbo. The report’s advocates considered that a final gut punch from the administration: “The point is to learn from it,” Jones noted.
Ron Wyden, the Oregon Democrat and intelligence committee member, has not given up. “I want the full report out, with necessary redactions,” he said.
Carl Levin, a recently retired Michigan Democratic senator whose chairmanship of the armed services committee made him a non-voting member of the intelligence panel, considered it a legacy issue for Obama.
“The president ended the CIA program by executive order in January 2009, as one of his first actions in office. By distributing the classified Senate study throughout the executive branch as appropriate before he leaves office, he’ll be making it less likely that his executive order will be rescinded by a future president,” Levin said.
As the public attacks on the report compounded through 2015, Feinstein opted to wage a continuous response. Jones’s new job was to pore over each criticism from the CIA Formers or other prominent surrogates and rebut them in statements Feinstein would send to reporters and place on her website. The task was not much different from how he had spent the previous six years.
The first major salvo came in the name of former Indiana Democratic senator Evan Bayh, himself a former intelligence committee member, barely a month after the Senate report was published.
After the inspector general had taken the agency to task for breaching the network firewall, Brennan asked Bayh to convene an “accountability board” to review the episode. As Bayh already served on the CIA’s advisory board, his report, unsurprisingly, exculpated Brennan, walked back the inspector general’s denouncement of the network breach, said the five CIA officials involved in the breach acted reasonably, and criticized the committee.
Bayh’s account, issued in January 2015, prominently reiterated that that the CIA and Senate lacked a “signed memorandum of understanding” limiting the agency’s role on the network – despite the sheaves of agreements in May and June 2009 between Panetta and Feinstein explicitly laying that out – and noted that the login screen on RDINet referenced the prospect of monitoring and warned of a lack of privacy expectation. Still, even Bayh found the CIA had “improper access” to the Senate files.
Jones, who said – improbably – that he doesn’t remember seeing the warning message at login, expressed exasperation with Bayh’s defense. “We went back and forth, months and months, up to the principals level, where Feinstein’s sitting across the table from Panetta … and they’re demanding these things happen, and we’re exchanging letters and we’re saying: ‘OK, we’ve reached agreement.’ It would just be absolutely ridiculous to think that after all those months of negotiations saying the CIA wouldn’t have access to our computers that we would go in there and every time we log on we’d just erase the decision that was made between the director of the Central Intelligence Agency and the chair and the vice-chair of the Senate intelligence committee.”
Unusually, Bayh’s panel was mostly anonymous. It had five members. The only other named member was Bob Bauer, the former White House counsel who had vouchsafed for the CIA no longer removing torture documents after it was caught taking 900 of them from the Senate in 2010. The other three, CIA officials, were never revealed, not even to the Senate. It is unknown if they played any role in the torture program; the CIA did not answer that question when the Guardian asked.
“The information released with regard to this matter was extraordinary. Nonetheless, some information was appropriately redacted or withheld,” said the CIA’s Trapani, citing a legal provision that affords the CIA leverage to withhold its officials’ identity.
Bayh has won the Democratic nomination for Senate in Indiana and is currently running to reclaim his old seat. He did not respond to a request for comment.
“Regarding the CIA’s search of Senate computer files and their going into the emails of Senate staff, I don’t know what to say,” said former Senate intelligence committee chairman Jay Rockefeller.
“You either have oversight and separation of powers with the checks and balances that come with that, or you don’t. It’s amazing that, once again, no one at the CIA was held accountable.”
Feinstein told the Guardian that she is not currently inclined to “rehash every interaction” in the years-long fight over her report. Instead, she pointed to the CIA’s response as an inadvertent testimony to its rigor.
“While the report has been relentlessly attacked by the CIA and former agency officials, no factual errors have been found,” she said.
“Continued efforts to obfuscate the report’s findings and justify a very dark chapter in our nation’s history do not change the facts, which stand without correction. By contrast, the CIA itself has acknowledged numerous factual errors, not only in its representations about the program but in its 2013 response to the report.”
As consuming as the rear-guard defense of the torture report was, Feinstein, no longer in possession of a gavel, pivoted to legislating the lesson that motivated it. In June 2015, by a wide bipartisan margin of 78 to 21, Feinstein and John McCain successfully passed an amendment to the annual defense authorization bill prohibiting the CIA from engaging in interrogations more brutal than an army field manual authorized. Obama signed the bill, giving the force of law to his 2009 executive order ending torture.
“Implementing all of the reforms needed to address the problems the report exposed is most important to me,” Feinstein told the Guardian, “and I am continually looking at ways to do that.”
In December 2015, Jones left the Senate. Feinstein read a tribute to Jones into the record. He joined a Washington consulting firm led by Tom Daschle, Reid’s predecessor as Senate Democratic leader, and started a firm, the Penn Quarter Group, to advise businesses and nonprofits on research and investigations.
“It was obvious I needed to leave the committee,” Jones said. While he said senators encouraged him to push back against torture in public, “I needed a break. It’s hard to describe how much of my life…” Jones trailed off.
“I was gone from the world for a number of years. It’s a bit of an adjustment to being a normal person.”
Rockefeller, the former senator and intelligence committee chairman who hired Jones in late 2006, said: “We were lucky to have him leading our investigations. He and others devoted so much of their lives to making sure this Senate study got done – and was done right.”
“Dan and his team worked under considerable pressure for more than seven years to complete the full 6,700-page classified report on the CIA program,” added Levin.
“He and his colleagues always comported themselves in a professional manner, were diligent, and maintained the highest of ethical standards throughout this ordeal, despite all of the challenges they faced.”
Jones has regrets about the way the declassified report turned out. Most prominently, Jones wishes he had gotten declassified the nearly 100-page table of contents for the full 6,700-page torture report, so readers could understand from the headings and subheadings just what the full contours of the torture was: “It has an incident on a particular day of someone’s detention, and there might be 10 pages on it. Or there might be 50 pages on it. It just shows the level of detail and how these 500 pages is just scratching the surface.”
Still, Jones considers the inquiry a success, one he attributes to the senators who took real political risks to back him and his team against the CIA.
“For those who worry that Congress is only dysfunctional, this is exhibit A to the contrary,” he said.
“This was a serious and high-stakes battle between two branches of government. And the legislative branch, in my view, ultimately won. I think our founding fathers would be very proud of Senator Feinstein and the others who worked to get this investigation completed and released.”
As the torture report receded into memory, Donald Trump won the Republican nomination, and presented an enthusiasm for torture uninterested in grappling with any critique around its immorality or ineffectiveness. Trump has pledged to bring back waterboarding “and a hell of a lot worse”.
The anti-torture law Feinstein and McCain passed is one impediment to CIA torture. But before 9/11, US laws were unequivocally against torture as well, and the adoption of torture arose due to political will driving creative lawyering. Brennan in April this year said he would refuse an order to bring back waterboarding, and in July said he would have to be fired rather than implement it. But he indicated that his departure would not necessarily be an impediment to a return to torture.
“If a president were to order the agency to carry out waterboarding or something else, it’ll be up to the director of CIA and others within CIA to decide whether or not that, that direction and order is something that they can carry out in good conscience,” he told the Brookings Institution.
The CIA’s clash with the Senate committee has faded. So has Brennan’s summer 2014 contrition, delivered to Feinstein, about spying on Jones and the committee staff. Brennan’s ire at the torture report has not.
On 9 February 2016, Brennan had a heated exchange with Wyden, who asked about the network search during an unrelated committee hearing. Brennan defended the agency’s actions and again implied that Jones had himself hacked the CIA: “Separation of powers between the executive and legislative branches, Senator, goes both ways.”
Speaking on 19 July to a friendly audience, the Intelligence and National Security Alliance, Brennan went further: “When I look at the Senate’s report on the detention interrogation program, it makes my blood boil, because although there’s a lot of things in there that were accurate, it really just focused on the shortcomings of the agency during that period in time.”
He continued: “If it was done in a more objective, nonpartisan and fair fashion, it would have put those shortcomings in better context. I fervently believe there was no agency more responsible for preventing a recurrence of 9/11 than the CIA. Unfortunately, that report I think misrepresented the totality of the worth of that program.”
Brennan has told colleagues that he wishes to remain CIA director under Hillary Clinton. In August, Morell published a New York Times op-ed excoriating Trump and endorsing Clinton, which intelligence observers understood as an audition to run Langley. For Jones, their apparent eagerness to lead the CIA is a reminder of a lack of accountability for torture and what he calls a “failed coverup” by CIA officials, aided by both the Bush and Obama administrations.
“Both Morell and Brennan are unfit to be CIA directors based off their response to the report, the way they responded to the Senate, how they view oversight. Under Brennan and Morell, the CIA is defending rectal rehydration as a ‘well-acknowledged medical technique’ – nothing to see here,” he said.
Wyden, speaking to the Guardian, said: “I’m exceptionally troubled by Director Brennan’s extraordinary efforts to resist vigorous congressional oversight. I certainly do not have confidence in the director.”
Obama has retained Brennan without a word of public criticism. He has kept his job despite the clash with his Senate overseers, just as CIA officials involved in the torture program and its misrepresentation to Congress, the Bush and Obama administrations, and the public still work at Langley.
“People who played a significant role in this program, who are in the report, continue to play significant roles in sensitive programs at the agency,” said Jones.
Carle, the former CIA officer and torture critic, disagrees that the agency needed to fire officials involved in torture to hold them accountable.
“I do know a number of officers whose careers were certainly impacted, if not derailed, as the result of all this stuff,” he said.
Speaking of Brennan’s reaction to the Senate report, Carle continued: “I know John. This was his least impressive moment. I and colleagues have been somewhat mystified that such an intelligent, subtle and open-minded man, on this point, reacted like Jose Rodriguez,” the retired CIA official and torture advocate whose destruction of videotaped interrogations began the Senate inquiry.
Udall, who had called for Brennan’s job in 2014, told the Guardian that he was “not aware that there has been accountability for what Director Brennan calls CIA’s ‘bad mistakes’.” But, he said, the CIA as a whole ought not to bear the blame for torture.
“We shouldn’t ascribe the bad behavior of some to all the employees of the CIA or of the intelligence community,” Udall said.
“The CIA writ large wasn’t responsible for developing, implementing and misrepresenting the truth about the CIA’s detention and interrogation program. In fact, a small number of CIA officers were largely responsible. It is unfortunate that the refusal of the CIA’s leadership to pursue accountability and tell the truth continues to tar the agency as a whole.”
Obama is more instinctively skeptical of the intelligence agencies than his potential successors, but the president who banned torture helped CIA officials implicated in torture endure at the agency. Obama’s deep relationship with Brennan and his early commitment not to “look backward” had profound consequences that will outlast his presidency.
“They avoided all the necessary reforms that have to happen at the CIA,” Jones said.
“To me, it’s a huge lost opportunity. Here’s an administration that came in and did all the right things within a few days, shutting down the program. But they didn’t want the independent commission. They said the Senate intelligence committee was the right place to do this. And to me, we were just never given a fair airing. No one from the White House would be briefed by us. They were briefed by the CIA.”
Udall agreed: “It is incumbent on the next administration to acknowledge these mistakes and institute the necessary reforms to restore the CIA’s reputation for integrity and analytical rigor.”
Carle is a rare former CIA official willing to praise the Senate torture report. “It captures exactly – exactly – the culture, reality, conversations, pressures, silences, actions, doubts, arguments that I lived. Absolutely, completely accurate.”
Asked if torture has left the CIA damaged, Carle said: “The CIA exists to go to the limit of what is acceptable. That’s part of what defines our raison d’être. That said, I think we did lasting harm to ourselves as an institution and as a country.”
The Senate investigation Feinstein led and Jones conducted into CIA torture is believed to be the largest in the legislative body’s 227-year history. In May 2016, the CIA inspector general’s office destroyed its only copy of the classified torture report. The agency, Yahoo reported, claims the destruction was accidental and that a copy of the report is held elsewhere at Langley. Referring to the ongoing transparency lawsuit, CIA spokesman Trapani said the agency will retain a copy “pending the final result of the litigation”.
Classified copies of the report, as well as the printed portions of the Panetta Review which Jones took in the fateful summer of 2013, remained in the Senate committee’s safe as of December 2015.
“It is my firm believe that the report will stand the test of time,” Feinstein told the Guardian, “and I am hopeful future administrations take the opportunity to learn from its conclusions.”
theguardian.com/us-news/2016/sep/11/cia-torture-report-aftermath-daniel-jones-senate-investigation
No looking back: the CIA torture report's aftermath
The CIA attacks the Senate’s published findings on torture, a report that was the result of six years of work by Daniel Jones. Now he sets out to defend it
By Spencer Ackerman
“I want to be absolutely clear with our people and the world. The United States does not torture,” said George W Bush on 6 September 2006.
Bush was, for the first time, acknowledging the existence of the program that Senate intelligence committee staff investigator Daniel Jones would later expose as taking power drills to the heads of captured men; making them stand with their arms stretched above their heads for days at a time; leaving at least one of them naked until he froze to death; waterboarding them to the point of catatonia as bubbles rose from their open mouths; and inserting pureed food into their rectums while claiming it was necessary for delivering nutrients.
Details of those procedures were outlined in the 525 pages which CIA director John Brennan, Barack Obama and White House chief of staff Denis McDonough allowed to become public.
The CIA’s response to Jones’s report was split into two corps, one official and one not. The agency itself would no longer defend torture outright because that would contradict the Obama White House’s position on the unacceptability of torture. Instead, the agency would say that tortured men produced valuable intelligence, just not necessarily as the result of torture, and that the Senate could not definitively prove the torture did not produce valuable intelligence.
Brennan gave a press conference following the release of the report in December 2014. It began with him spending five minutes reciting the unfolding developments of the 9/11 terrorist attacks and crescendoed with him calling the relationship between torture and useful intelligence “unknowable”. Jones’ boss, the driving force behind the report, California Democratic Senator Dianne Feinstein unexpectedly live-tweeted responses to Brennan’s press conference as it progressed, creating the hashtag #ReadTheReport.
The second corps consisted of retired CIA directors, a group known colloquially as the “Formers”. They laid into the Senate committee with a vigor that Brennan, who still had to answer to it, could not. The Formers, who would in September 2015 attack the report in a book called Rebuttal, called the committee’s work a partisan hit job. They disdained it for not interviewing CIA officials involved in the program – all the while ignoring the fact that committee Republicans and Obama’s justice department prevented Jones from conducting those interviews. They reiterated the insistence that torture yielded a wealth of intelligence and derided the Senate report for what they called its leaps in logic. One of them was former acting director Michael Morell, a frequent television guest, who would publish a memoir in May 2015 recapitulating much of the standard CIA line.
“Morell, he presents himself as this thoughtful guy, who’s really in the weeds and knows things, but he went out and talked about how the report was inaccurate, he wrote a book with inaccuracies. He stated publicly that he had only read 300 pages of the executive summary and told Feinstein he hadn’t read the full report,” Jones said.
“It was the same problem with the agency, over and over again. Either you are knowingly spreading inaccurate information, which is pretty terrible, or you just don’t want to know, and you take a briefing with inaccurate information and you just repeat it.”
CIA spokesman Ryan Trapani said that the agency did not coordinate its response with the Formers. The Senate committee “withdrew its approval to let former officers read the executive summary prior to its release to the public, so some were not able to read or prepare responses to the accusations until [the committee] released its executive summary to the public,” Trapani said.
Glenn Carle was a CIA officer from 1985 to 2007. He knew Brennan while at the agency and respects the director’s “subtle and fair mind”. After 9/11, Carle was called upon to interrogate a terrorism suspect he now believes is innocent. Although he did not use the brutal techniques called out in the Senate report, the experience deeply affected Carle, who has become a vocal critic of the agency’s post-9/11 torture.
While Carle said the CIA often holds a legitimate feeling of besiegement against outside criticism – “We’re always the ones left holding the bag after we’re asked to mine the harbors or overthrow the government,” he noted – the fury of the CIA reactions to the Senate troubled him.
“I was dismayed by the response, which I thought was in parts intellectually shoddy, simple-minded, unnecessarily defensive, circle-the-wagons reactive and wrong and harmful,” Carle said.
He continued: “We were well outside of the bounds, and it was obvious. And part of the defense the agency used, the Bush administration used, defenders, proponents, Republicans use, is that ‘You have to understand the context of the times, we were all afraid there was going to be another attack, we had to act.’ That’s all bullshit. No, you cannot do that. Our job is not to react emotionally, and in fear, and reflexively, which is what that is a justification for doing. Our job is to get it right. Our job is to see through that and have the courage to act correctly.”
The CIA was not alone in attacking the report. The Senate committee’s Republicans, who had pulled out of the inquiry in September 2009, savaged it as a Democratic witchhunt – a critical boost for a CIA that wanted to avoid the narrative that it was pitted against the Senate.
While in 2009 the committee Republicans had urged the CIA not to grant interviews while a parallel justice department inquiry unfolded, now they attacked their Democratic colleagues for not renewing a request once the DoJ inquiry was concluded in 2012: “The committee had a window of opportunity to invite these relevant witnesses in for interviews, but apparently decided against that course of action.”
Jones said: “The Republicans were never supportive of interviews. Period. They just played games with this.”
As the CIA’s rebuttal strategy began to unfold, Democrat Mark Udall took to the Senate floor. Udall was less constrained than any intelligence committee member. He had lost his re-election campaign and had only weeks remaining in the chamber. Udall had earlier flirted with reading the entire report into the Senate record and daring the administration to prosecute him. Instead, he excoriated the White House for aligning with the “flippant and dismissive” CIA against the Senate.
“While the study clearly shows that the CIA’s detention and interrogation program itself was deeply flawed, the deeper, more endemic problem lies in a CIA, assisted by a White House, that continues to try to cover up the truth,” Udall said on 10 December 2014. He accused the White House of “letting the CIA do whatever it likes, even if its efforts are aimed at actively undermining the president’s stated [torture] policies.”
Udall continued: “Director Brennan and the CIA today are continuing to willfully provide inaccurate information and misrepresent the efficacy of torture. In other words, the CIA is lying. This is not a problem of the past.”
The report was the result of six years of Jones’s work. The seventh year was consumed by two tasks: defending the torture report against its CIA and Republican critics; and attempting to entrench its purpose – preventing torture – into law. Success would vary.
Jones still wasn’t speaking in public. He was a Senate committee staffer, although he recognized, now that North Carolina Republican Richard Burr was chairman, his position on the committee was untenable.
In his first month in office, Burr took an extraordinary step. The Senate had delivered copies of the classified report across the executive branch to the various agencies – the justice department, the Pentagon, and so forth – with equities in it. Burr, in his first month as chairman, formally requested the copies back. Burr’s home-state newspaper, the Raleigh News & Observer, editorialized that the senator preferred “to hide the misdeeds of the CIA’s secret prisons rather than have others in government review what happened”.
The ACLU, which had sued for disclosure of the document, filed an emergency motion to block Burr. In response, the administration pledged to “preserve the status quo”, meaning that it wouldn’t give the classified report back. If there was an opportunity to learn lessons from careful, private reading of the full report, the agencies did not take it – they did not even remove the 6,700-page classified report from its packaging – an issue complicated by freedom of information lawsuits that mired the documents in bureaucratic limbo. The report’s advocates considered that a final gut punch from the administration: “The point is to learn from it,” Jones noted.
Ron Wyden, the Oregon Democrat and intelligence committee member, has not given up. “I want the full report out, with necessary redactions,” he said.
Carl Levin, a recently retired Michigan Democratic senator whose chairmanship of the armed services committee made him a non-voting member of the intelligence panel, considered it a legacy issue for Obama.
“The president ended the CIA program by executive order in January 2009, as one of his first actions in office. By distributing the classified Senate study throughout the executive branch as appropriate before he leaves office, he’ll be making it less likely that his executive order will be rescinded by a future president,” Levin said.
As the public attacks on the report compounded through 2015, Feinstein opted to wage a continuous response. Jones’s new job was to pore over each criticism from the CIA Formers or other prominent surrogates and rebut them in statements Feinstein would send to reporters and place on her website. The task was not much different from how he had spent the previous six years.
The first major salvo came in the name of former Indiana Democratic senator Evan Bayh, himself a former intelligence committee member, barely a month after the Senate report was published.
After the inspector general had taken the agency to task for breaching the network firewall, Brennan asked Bayh to convene an “accountability board” to review the episode. As Bayh already served on the CIA’s advisory board, his report, unsurprisingly, exculpated Brennan, walked back the inspector general’s denouncement of the network breach, said the five CIA officials involved in the breach acted reasonably, and criticized the committee.
Bayh’s account, issued in January 2015, prominently reiterated that that the CIA and Senate lacked a “signed memorandum of understanding” limiting the agency’s role on the network – despite the sheaves of agreements in May and June 2009 between Panetta and Feinstein explicitly laying that out – and noted that the login screen on RDINet referenced the prospect of monitoring and warned of a lack of privacy expectation. Still, even Bayh found the CIA had “improper access” to the Senate files.
Jones, who said – improbably – that he doesn’t remember seeing the warning message at login, expressed exasperation with Bayh’s defense. “We went back and forth, months and months, up to the principals level, where Feinstein’s sitting across the table from Panetta … and they’re demanding these things happen, and we’re exchanging letters and we’re saying: ‘OK, we’ve reached agreement.’ It would just be absolutely ridiculous to think that after all those months of negotiations saying the CIA wouldn’t have access to our computers that we would go in there and every time we log on we’d just erase the decision that was made between the director of the Central Intelligence Agency and the chair and the vice-chair of the Senate intelligence committee.”
Unusually, Bayh’s panel was mostly anonymous. It had five members. The only other named member was Bob Bauer, the former White House counsel who had vouchsafed for the CIA no longer removing torture documents after it was caught taking 900 of them from the Senate in 2010. The other three, CIA officials, were never revealed, not even to the Senate. It is unknown if they played any role in the torture program; the CIA did not answer that question when the Guardian asked.
“The information released with regard to this matter was extraordinary. Nonetheless, some information was appropriately redacted or withheld,” said the CIA’s Trapani, citing a legal provision that affords the CIA leverage to withhold its officials’ identity.
Bayh has won the Democratic nomination for Senate in Indiana and is currently running to reclaim his old seat. He did not respond to a request for comment.
“Regarding the CIA’s search of Senate computer files and their going into the emails of Senate staff, I don’t know what to say,” said former Senate intelligence committee chairman Jay Rockefeller.
“You either have oversight and separation of powers with the checks and balances that come with that, or you don’t. It’s amazing that, once again, no one at the CIA was held accountable.”
Feinstein told the Guardian that she is not currently inclined to “rehash every interaction” in the years-long fight over her report. Instead, she pointed to the CIA’s response as an inadvertent testimony to its rigor.
“While the report has been relentlessly attacked by the CIA and former agency officials, no factual errors have been found,” she said.
“Continued efforts to obfuscate the report’s findings and justify a very dark chapter in our nation’s history do not change the facts, which stand without correction. By contrast, the CIA itself has acknowledged numerous factual errors, not only in its representations about the program but in its 2013 response to the report.”
As consuming as the rear-guard defense of the torture report was, Feinstein, no longer in possession of a gavel, pivoted to legislating the lesson that motivated it. In June 2015, by a wide bipartisan margin of 78 to 21, Feinstein and John McCain successfully passed an amendment to the annual defense authorization bill prohibiting the CIA from engaging in interrogations more brutal than an army field manual authorized. Obama signed the bill, giving the force of law to his 2009 executive order ending torture.
“Implementing all of the reforms needed to address the problems the report exposed is most important to me,” Feinstein told the Guardian, “and I am continually looking at ways to do that.”
In December 2015, Jones left the Senate. Feinstein read a tribute to Jones into the record. He joined a Washington consulting firm led by Tom Daschle, Reid’s predecessor as Senate Democratic leader, and started a firm, the Penn Quarter Group, to advise businesses and nonprofits on research and investigations.
“It was obvious I needed to leave the committee,” Jones said. While he said senators encouraged him to push back against torture in public, “I needed a break. It’s hard to describe how much of my life…” Jones trailed off.
“I was gone from the world for a number of years. It’s a bit of an adjustment to being a normal person.”
Rockefeller, the former senator and intelligence committee chairman who hired Jones in late 2006, said: “We were lucky to have him leading our investigations. He and others devoted so much of their lives to making sure this Senate study got done – and was done right.”
“Dan and his team worked under considerable pressure for more than seven years to complete the full 6,700-page classified report on the CIA program,” added Levin.
“He and his colleagues always comported themselves in a professional manner, were diligent, and maintained the highest of ethical standards throughout this ordeal, despite all of the challenges they faced.”
Jones has regrets about the way the declassified report turned out. Most prominently, Jones wishes he had gotten declassified the nearly 100-page table of contents for the full 6,700-page torture report, so readers could understand from the headings and subheadings just what the full contours of the torture was: “It has an incident on a particular day of someone’s detention, and there might be 10 pages on it. Or there might be 50 pages on it. It just shows the level of detail and how these 500 pages is just scratching the surface.”
Still, Jones considers the inquiry a success, one he attributes to the senators who took real political risks to back him and his team against the CIA.
“For those who worry that Congress is only dysfunctional, this is exhibit A to the contrary,” he said.
“This was a serious and high-stakes battle between two branches of government. And the legislative branch, in my view, ultimately won. I think our founding fathers would be very proud of Senator Feinstein and the others who worked to get this investigation completed and released.”
As the torture report receded into memory, Donald Trump won the Republican nomination, and presented an enthusiasm for torture uninterested in grappling with any critique around its immorality or ineffectiveness. Trump has pledged to bring back waterboarding “and a hell of a lot worse”.
The anti-torture law Feinstein and McCain passed is one impediment to CIA torture. But before 9/11, US laws were unequivocally against torture as well, and the adoption of torture arose due to political will driving creative lawyering. Brennan in April this year said he would refuse an order to bring back waterboarding, and in July said he would have to be fired rather than implement it. But he indicated that his departure would not necessarily be an impediment to a return to torture.
“If a president were to order the agency to carry out waterboarding or something else, it’ll be up to the director of CIA and others within CIA to decide whether or not that, that direction and order is something that they can carry out in good conscience,” he told the Brookings Institution.
The CIA’s clash with the Senate committee has faded. So has Brennan’s summer 2014 contrition, delivered to Feinstein, about spying on Jones and the committee staff. Brennan’s ire at the torture report has not.
On 9 February 2016, Brennan had a heated exchange with Wyden, who asked about the network search during an unrelated committee hearing. Brennan defended the agency’s actions and again implied that Jones had himself hacked the CIA: “Separation of powers between the executive and legislative branches, Senator, goes both ways.”
Speaking on 19 July to a friendly audience, the Intelligence and National Security Alliance, Brennan went further: “When I look at the Senate’s report on the detention interrogation program, it makes my blood boil, because although there’s a lot of things in there that were accurate, it really just focused on the shortcomings of the agency during that period in time.”
He continued: “If it was done in a more objective, nonpartisan and fair fashion, it would have put those shortcomings in better context. I fervently believe there was no agency more responsible for preventing a recurrence of 9/11 than the CIA. Unfortunately, that report I think misrepresented the totality of the worth of that program.”
Brennan has told colleagues that he wishes to remain CIA director under Hillary Clinton. In August, Morell published a New York Times op-ed excoriating Trump and endorsing Clinton, which intelligence observers understood as an audition to run Langley. For Jones, their apparent eagerness to lead the CIA is a reminder of a lack of accountability for torture and what he calls a “failed coverup” by CIA officials, aided by both the Bush and Obama administrations.
“Both Morell and Brennan are unfit to be CIA directors based off their response to the report, the way they responded to the Senate, how they view oversight. Under Brennan and Morell, the CIA is defending rectal rehydration as a ‘well-acknowledged medical technique’ – nothing to see here,” he said.
Wyden, speaking to the Guardian, said: “I’m exceptionally troubled by Director Brennan’s extraordinary efforts to resist vigorous congressional oversight. I certainly do not have confidence in the director.”
Obama has retained Brennan without a word of public criticism. He has kept his job despite the clash with his Senate overseers, just as CIA officials involved in the torture program and its misrepresentation to Congress, the Bush and Obama administrations, and the public still work at Langley.
“People who played a significant role in this program, who are in the report, continue to play significant roles in sensitive programs at the agency,” said Jones.
Carle, the former CIA officer and torture critic, disagrees that the agency needed to fire officials involved in torture to hold them accountable.
“I do know a number of officers whose careers were certainly impacted, if not derailed, as the result of all this stuff,” he said.
Speaking of Brennan’s reaction to the Senate report, Carle continued: “I know John. This was his least impressive moment. I and colleagues have been somewhat mystified that such an intelligent, subtle and open-minded man, on this point, reacted like Jose Rodriguez,” the retired CIA official and torture advocate whose destruction of videotaped interrogations began the Senate inquiry.
Udall, who had called for Brennan’s job in 2014, told the Guardian that he was “not aware that there has been accountability for what Director Brennan calls CIA’s ‘bad mistakes’.” But, he said, the CIA as a whole ought not to bear the blame for torture.
“We shouldn’t ascribe the bad behavior of some to all the employees of the CIA or of the intelligence community,” Udall said.
“The CIA writ large wasn’t responsible for developing, implementing and misrepresenting the truth about the CIA’s detention and interrogation program. In fact, a small number of CIA officers were largely responsible. It is unfortunate that the refusal of the CIA’s leadership to pursue accountability and tell the truth continues to tar the agency as a whole.”
Obama is more instinctively skeptical of the intelligence agencies than his potential successors, but the president who banned torture helped CIA officials implicated in torture endure at the agency. Obama’s deep relationship with Brennan and his early commitment not to “look backward” had profound consequences that will outlast his presidency.
“They avoided all the necessary reforms that have to happen at the CIA,” Jones said.
“To me, it’s a huge lost opportunity. Here’s an administration that came in and did all the right things within a few days, shutting down the program. But they didn’t want the independent commission. They said the Senate intelligence committee was the right place to do this. And to me, we were just never given a fair airing. No one from the White House would be briefed by us. They were briefed by the CIA.”
Udall agreed: “It is incumbent on the next administration to acknowledge these mistakes and institute the necessary reforms to restore the CIA’s reputation for integrity and analytical rigor.”
Carle is a rare former CIA official willing to praise the Senate torture report. “It captures exactly – exactly – the culture, reality, conversations, pressures, silences, actions, doubts, arguments that I lived. Absolutely, completely accurate.”
Asked if torture has left the CIA damaged, Carle said: “The CIA exists to go to the limit of what is acceptable. That’s part of what defines our raison d’être. That said, I think we did lasting harm to ourselves as an institution and as a country.”
The Senate investigation Feinstein led and Jones conducted into CIA torture is believed to be the largest in the legislative body’s 227-year history. In May 2016, the CIA inspector general’s office destroyed its only copy of the classified torture report. The agency, Yahoo reported, claims the destruction was accidental and that a copy of the report is held elsewhere at Langley. Referring to the ongoing transparency lawsuit, CIA spokesman Trapani said the agency will retain a copy “pending the final result of the litigation”.
Classified copies of the report, as well as the printed portions of the Panetta Review which Jones took in the fateful summer of 2013, remained in the Senate committee’s safe as of December 2015.
“It is my firm believe that the report will stand the test of time,” Feinstein told the Guardian, “and I am hopeful future administrations take the opportunity to learn from its conclusions.”
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