Senator Feinstein Finds Out How it Feels to be a FOIA Requester

Just in time for Sunshine Week, the must read document of the week, month, year is out.  It’s the “high-altitude electromagnetic pulse”  which Senator Dianne Feinstein (previously no foe of the Security State) has just launched at the Central Intelligence Agency.  In a Senate floor speech, she accused the Agency of concealing –then deleting– documents that the Senate Intelligence Committee was reviewing about the CIA torture program.  Her statement is a must read.  Even the Times’ headline “Feinstein Publicly Accuses C.I.A. of Spying on Congress,” is too soft.  Read the full statement here.

According to Feinstein, the Agency initially denied that it had removed the torture documents, then blamed the removal on IT staff, and subsequently and untruthfully stated that the removal of some torture documents “was ordered by the White House.”

Additionally, according to Feinstein, the CIA has attempted and failed to suppress the Senate Intelligence Committee’s access to a document she calls the “Panetta Review” of the torture program that largely (and as opposed to Director Brennan) agrees with the Senate Intelligence Committee’s findings.

A previous CIA release on its torture practices.

She writes:  “The significance of the Internal Review given disparities between it and the June 2013 CIA response to the committee study. The Internal Panetta Review summary now at the secure committee office in the Hart Building is an especially significant document as it corroborates critical information in the committee’s 6,300-page Study that the CIA’s official response either objects to, denies, minimizes, or ignores.

Unlike the official response, these Panetta Review documents were in agreement with the committee’s findings. That’s what makes them so significant and important to protect.

When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.”

Dismayed that its secrets (potentially about the illegality of its torture program) were being exposed (to the security cleared Senate Intelligence Committee), “the CIA just went and searched the committee’s computers.”

According to Feinstein, “Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function… Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

One more kicker: The CIA’s acting general counsel filed a crimes report concerning the committee staff’s(!) actions.  Feinstein acerbically notes:

“[F]for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

*****

There of course is irony that Feinstein, who supports the NSA’s potentially illegal, formerly secret, dragnet of American telephone metadata, has launched the HEMP only after her staff was spied on and had key documents withheld and then reclassified.  This is the disdain with which the CIA treats the FOIA requesting public every day.

But we’ll take it.  This Intelligence Overreach may have well been the action that jars Congress awake so that it resumes its role as overseer of the spies.  As Feinstein writes, “this a defining moment for the oversight of our Intelligence Community. How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee.”

Past is prologue.

It is also important to note that this is not the first time that Congress has been spied on by the entities it is supposed to oversee.  Just last year, in a response to a FOIA request and appeal, the National Security Archive received a NSA history revealing that in the 1960s the Agency spied on Senators Frank Church and Howard Baker (along with Martin Luther King, Jr., Muhammed Ali, and more than a thousand other Americans).

The Security State’s last overreach led to the a ramped up Freedom of Information Act, the Foreign Intelligence Surveillance Act (which the NSA was able to abuse to collect telephone metadata) the Church Committee Hearings, and –my favorite– Senator Gravel’s entering the entire Pentagon Papers into the Congressional Record, for all to read.

Of course, as the CIA’s FOIA office knows, there are other implications for the Agency.  The CIA Operational Files exemption (which Congress was hoodwinked into passing in 1984, and should repeal) explicitly states that   “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” cannot be exempted from FOIA requests.

The Secret State has encroached too far.  It’s time for Congress to raise the veil.