Constitutional Clash: The Senate Intelligence Committee Torture Report as a Case Study of Congress’ Right to Access, Control, and Declassify National Security Documents

By Mark Iozzi

Congressional Investigations Professors Podesta & Leon Spring 2015

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Introduction

In March 2009, the Senate Select Committee on Intelligence (SSCI) set out to conduct a comprehensive investigation of the detainee interrogation program the Central Intelligence

Agency (CIA) initiated following the 2001 terrorist attacks.1 More than three years after this investigation began, the effort produced a 6,700-page classified report, commonly known as the

SSCI Torture Report.2 During the course of this investigation and the subsequent, multi-year negotiation over which portions of the report to release publically, Congress and the executive branch clashed in four general areas: (1) Congress’ right to access executive branch classified materials, (2) the terms under which Congress would be able to review these materials, (3) the executive branch’s right to investigate potential violations of these terms, and (4) Congress’ authority to declassify its findings.

This paper uses these clashes in the SSCI investigation as a case study to analyze

America’s balance of power in national security matters. It examines the struggle the SSCI investigation produced between legislators and executive branch officials and evaluates the legal authorities on either side of the debates. This long, heated investigation highlights the powers each branch of government can bring to bear, and illustrates how America’s constitutional system resolves conflicts in a controversial congressional investigation.

Constitutional Clashes

I. Congress’ Right to Access

The SSCI investigation of the CIA detainee interrogation program began formally on

March 5, 2009, with a 14 to 1 committee vote in support of Chairman Dianne Feinstein’s plan to

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complete a comprehensive review of the program.3 The committee began by sending a document request to the CIA and all other executive branch agencies that had information on the

CIA’s program.4 This request led to a prolonged negotiation over which materials the committee would be able to access and the conditions under which they would receive this access.5

Congress generally has broad constitutional authority to obtain executive branch documents, including highly classified materials.6 Although the Constitution does not expressly authorize congressional oversight investigations, the Supreme Court has established that the power to conduct these investigations is an essential legislative function implied by Article I of the Constitution.7 The Senate has delegated its legislative power to investigate the CIA and other intelligence agencies to the SSCI, which was explicitly established for this purpose.8 These rules also specify that the Senate intended the SSCI to have access to classified information.9

Although several congressional committees work with classified materials, the SSCI and its corresponding intelligence committee in the House are specifically empowered to deal with the unique requirements of receiving and safeguarding highly classified materials.10

Congress has required the President to establish mechanisms for controlling access to classified information,11 but the relevant executive orders do not contain provisions on how these materials should be disclosed to Congress.12 Unlike most individuals with access to classified documents, members of Congress have never been required to undergo security clearance investigations.13 Instead, across the federal government, constitutionally elected officers including members of Congress, the President and Vice President, Justices of the Supreme Court, and other federal court judges are not required to obtain security clearances.14 Instead, they are

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presumed to be trustworthy, and granted access to the documents they need to fulfill their constitutional responsibilities.15

Unlike members of Congress, congressional staff must obtain security clearances under a process Congress imposes on itself and administers with help from executive branch agencies.16

In addition to requiring security clearances for staff, Congress also manages several “sensitive compartmented information facilities” on Capitol Hill.17 These facilities are specifically designed to store and review classified materials under the same standards for secrecy required for similar facilities in the executive branch.18

Although members and their staff have the authority and facilities needed to access classified information, they must still satisfy the ‘need to know’ requirement before gaining access to specific documents.19 Members of Congress tend to believe they always meet this requirement by virtue of their constitutional oversight responsibilities. The validity of this claim for members of the intelligence committees is clearly established,20 and the mere fact that information is classified, likely cannot be used as a justification for withholding it from

Congress.21 The executive branch is statutorily obligated to update the intelligence committees about most intelligence activities and covert actions;22 however, the statutes do not clearly specify the level of detail the executive branch must disclose.23 Executive branch legal opinions have argued that the President has final authority to determine whether a member of Congress has a need to know specific information.24

Although Congress has reviewed classified materials for a wide range of investigations, only one notable case over access to classified documents appears to have reached the courts.25

During a 1976 warrantless wiretapping investigation by a subcommittee of the House Interstate

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and Foreign Commerce Committee, the subcommittee issued subpoenas for records of Federal

Bureau of Investigation (FBI) wiretapping from the American Telephone and Telegraph

Company (AT&T). 26 After repeated attempts to force the parties to negotiate a resolution on their own, the Court eventually rejected the executive branch’s claim that it had absolute discretion over national security materials.27 It held that although the President has extensive national security powers under the Constitution, Congress has other equally important constitutional powers over matters related to national security.28 The court also rejected

Congress’ assertion that the Speech or Debate Clause29 prohibited judicial interference with

Congressional investigations.30 Ultimately, rather than ruling on the merits, the court made an additional attempt to force a negotiated solution.31 The Court set general terms for the parties that helped them reach a final agreement.32 For example, the court permitted the Department of

Justice (DOJ) to “limit the sample size of the unedited memoranda and prohibit committee staff from removing their notes from the FBI’s possession.”33

In the decades following this case, both parties have relied on negotiations, rather than continuing to seek judicial resolution to their disputes.34 Through this process, Congress and the executive branch have developed a longstanding practice of negotiating Congressional access to classified materials.35 Congress has numerous tools it can use to exert leverage, including exerting public pressure in the media, withholding Senate consent on nominations, and ultimately redirecting funding.36 In the SSCI investigation, after substantial negotiations, the

SSCI and CIA reached an agreement. The CIA committed to provide the committee with broad access to most of the documents Chairman Feinstein wanted, under specific conditions described below. 37

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In mid-2009, the CIA began to disclose thousands and then millions of pages of electronic documents to the SSCI staff in accordance with their agreement.38 The CIA provided these documents without any index or organizational structure,39 in what committee Chairman

Feinstein described as a “true document dump.”40 The committee had negotiated for the right to review more documents than it could initially process; and, in the same negotiation, had agreed to terms that substantially limited the means by which its staff could conduct this work.41

II. The Terms of Review

The agreement between SSCI and the CIA set strict requirements on how and where the committee staff could review classified materials for its investigation.42 As described above, the intelligence committees, and several other congressional committees, regularly access classified documents in their secured facilities on Capitol Hill.43 SSCI asked to follow this same process for this investigation, and requested that the CIA deliver the relevant materials to the Heart

Senate Office Building.44 However, the CIA instead offered an alternative arrangement that would give the SSCI access to the documents at a designated CIA facility in Northern Virginia instead.45 The SSCI agreed to this arrangement, but insisted on several specific conditions.46

Through an exchange of letters, Chairman Feinstein and Vice Chairman Bond reached an agreement with CIA Director Leon Panetta that the CIA would provide the committee with a

“stand-alone computer system,” “segregated from CIA networks” that would only be accessed by information technology personnel at the CIA.”47 The letters specified that the information technology personnel “would ‘not be permitted to’ ‘share information from the system with other

[CIA] personnel, except as otherwise authorized by the committee.’”48

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The network established for this facility, named the “Rendition, Detention, and

Interrogation Network” (RDINet), became a centerpiece in a vicious battle that played out between the SSCI and CIA throughout the investigation.49 RDINet was specifically designed to allow CIA staff to review documents before they were made available to the SSCI. 50 Once CIA employees cleared the documents, they transferred them to separate computer drives for the

SSCI Majority and Minority staffs.51 The separated Majority and Minority computer drives contained these disclosed documents, as well as the separated investigation work products of each party.52

The first conflict over CIA access to this computer system occurred early in the investigation. In the beginning of 2010, as the SSCI staff began to sift through the materials, they realized the CIA had removed nearly a thousand pages of documents it had previously disclosed.53 According to Chairman Feinstein, the CIA personnel initially denied removing the documents, then blamed unauthorized actions by information technology contractors, and later claimed that the White House had ordered their removal, which the White House denied.54 This incident highlights that as long as the executive branch is able to retain control over documents, it may be tempted to use this ability to influence aspects of an investigation. Whether or not the

CIA acted improperly in this case, the situation undermined what little trust existed between the

SSCI and CIA and contributed to decisions on either side that erupted into a heated showdown later in the investigation.55

The events leading to the next, and largest, conflict began later in 2010, when the

Majority staff discovered a series of more than 40 documents, now commonly called the Panetta

Review.56 CIA staff had prepared these documents to brief Director Panetta on the SSCI

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investigation.57 They contained a summary of information the CIA had provided to SSCI and, more importantly, CIA analysis the committee believed supported facts the CIA had publicly denied.58 After discovering the documents, the SSCI Majority staff decided to move copies of them to the committee’s secure facilities on Capitol Hill.59

Chairman Feinstein contended this step was part of the staff’s “standard process for reviewing records” and that it was necessary in light of the documents’ importance and the

CIA’s history of removing documents from the RDINet system.60 She specifically noted on the

Senate floor that “[w]hen the Internal Panetta Review documents disappeared from the committee’s computer system, [later in the investigation] 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.”61 She also contends that the

SSCI decision to move the documents to Capitol Hill was lawful and handled consistently with security classification requirements.62

Nevertheless, the SSCI staff’s removal of the documents likely violated the committee’s

2009 agreement with the CIA.63 According to the Chairman’s own account of their agreement, the SSCI consented to allow CIA staff an opportunity to review documents before bringing them back to the Committee’s offices,64 and the committee staff failed to perform this step before relocating the Panetta Review.65 Chairman Feinstein argues that because the documents her staff removed did not contain the kinds of information the CIA review was intended to catch and redact, such as the names of non-supervisory CIA personnel, the SSCI staff did not violate “the spirit of the agreement.”66 Even if she is correct about the purpose of the CIA review, the SSCI staff’s failure to abide by this requirement indicates that they may have been trying to conceal

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their possession of the documents, possibly because they knew the CIA had not intended to disclose them.

Chairman Feinstein rejects this conclusion.67 According to her, the SSCI staff did nothing out of the ordinary to obtain the documents and simply located them using the computer program the CIA provided to search materials to which they had been given access.68 Although the documents clearly contained stamps indicating that they were “for internal discussion purposes,” “deliberative,” and “privileged,” 69 the Chairman argues that this was nothing out of the ordinary.70 According to her, the CIA had intentionally provided “thousands” of internal documents that were similarly marked.71 Additionally, even if the CIA had asserted that these documents were privileged work products, Congress is not required to recognize these privilege claims when reviewing materials the executive branch provides to an oversight investigation.72

Despite Chairman Feinstein’s assertions that her staff did nothing wrong, once the CIA discovered that the SSCI had a copy of the Panetta Review, they quickly launched an investigation of SSCI’s activities.

III. Investigating the Investigators

The Panetta Review had already been in the SSCI offices in the Heart Building for more than three years before the CIA realized it had been disclosed. The CIA became suspicious when SSCI findings, document requests, and staff comments began to mirror findings from the review.73 Then, Senator Mark Udall confirmed the CIA’s suspicions when he explicitly referred to the document in a December 2013 SSCI hearing.74 This realization prompted a CIA investigation of the committee’s activities.75

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According to the CIA’s account, the current CIA Director, John Brennan, met with

Chairman Feinstein and Vice Chair Chambliss and requested that the CIA and SSCI conduct a joint review of the events to determine how the committee came into possession of the documents.76 Chairman Feinstein apparently rejected this offer because no joint investigation took place. The Chairman continued to maintain that her office had authority to retain the documents during its investigation and that the executive branch had no power to reclaim them.77

The CIA, on the other hand, asserted that it was responsible for the security and administration of the documents on RDINet, and therefore had a right to investigate what had occurred.78

Later, in mid-January 2014, Director Brennan revealed to Chairman Feinstein that soon after discovering that SSCI had the Panetta Review, he had authorized a CIA search of the

SSCI’s drives on RDINet, without prior notice to the committee.79 The search concluded that the

CIA had not voluntarily disclosed the documents80 but apparently never asked the committee to explain how they obtained them.81 Brennan’s disclosure of the search prompted Chairman

Feinstein to respond with letters asserting “that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and [sic] Debate clause,”82 which states that members of Congress “shall not be questioned in any other Place” “for any Speech or Debate in either House.”83 She also asserted that “[b]esides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”84

Soon after this, on January 30, 2014, the CIA Inspector General, David Buckley, initiated an investigation of the CIA’s search.85 During this investigation, the Office of the Inspector

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General (OIG) concluded that five CIA employees, including two attorneys, had “improperly accessed or caused access to the SSCI Majority staff shared drives.”86 Additionally, unaware that

Director Brennan had subsequently ordered Agency officials to stop reviewing SSCI staff activities on the RDINet drives, the CIA Office of Security conducted an additional “limited investigation” of SSCI network activity, which included a review of some SSCI Majority staff emails.87 The Inspector General also found that three CIA staff members “demonstrated a lack of candor about their activities during interviews by the OIG.”88 Following the investigation, the

Inspector General referred the matter to the Department of Justice (DOJ) to investigate these activities, which he believed may have constituted criminal violations of the Wiretap Act89 and the Computer Fraud and Abuse Act.90

Soon after this, the CIA’s Acting General Counsel filed a separate crimes report with the

DOJ, alleging “that SSCI staff members may have improperly accessed Agency information on

. . . RDINet.”91 The OIG concluded that, based on the Acting General Counsel’s knowledge at the time, he was obligated to refer the matter to the DOJ under Executive Order 12333, which requires the intelligence community to “[r]eport to the Attorney General possible violations of federal criminal laws,”92 and under related requirements in a 1995 Crimes Reporting

Memorandum between the DOJ and the intelligence community.93 However, the OIG also found that the information the Acting General Counsel used in his referral decision was inaccurate.94

After reviewing the reports from both the OIG and Acting General Counsel, DOJ declined to open an investigation into any of the actions, stating that “[t]he department carefully reviewed the matters . . . and did not find sufficient evidence to warrant a criminal investigation.”95

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Chairman Feinstein was not as willing to let the matter go unnoticed. After learning of the CIA search and allegations against her staff, she took to the Senate Floor to accuse the CIA of unlawfully infringing on the SSCI’s investigation.96 She insisted their actions “undermined the constitutional framework essential to effective congressional oversight of intelligence activities.”97 She also delivered a scathing rebuke of the Acting General Counsel’s claims, condemning his actions “as a potential effort to intimidate [her] staff.”98 Other members of the

SSCI, including Senator Udall took their reaction one step further and called for Director

Brennan’s resignation.99

A final analysis by a CIA Accountability Review Board came to a different set of findings.100 It found that the OIG’s report contained errors and failed to include relevant evidence.101 It argued that the CIA employees acted properly in response to the SSCI staff’s removal of the Panetta Report and concluded that the OIG should not have referred the case to the DOJ.102 Additionally, it noted that the SSCI staff knew the computer network was not private.103 Every time the committee staff logged on to the computer network their screens displayed a message that read, “Your use of this system may be monitored and you have no expectation of privacy.”104 The Board also found that under the 2009 agreement between the committee and the CIA, “SSCI Staffers consented to Agency access of the SSCI side of RDINet for some purposes.”105

Although there appear to have been mistakes on both sides of this dispute, determinations of wrongdoing largely depend on which branch of government was responsible for ensuring the information’s security when the SSCI accessed the Panetta Review and removed a copy from

RDINet. The CIA had a legal responsibility to track and maintain the secrecy of these

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documents, at least until they were handed over to Congress.106 Executive Order 13526, which covers the protection of classified information, requires each agency to secure the classified information it produces, including by protecting the computer systems it uses to store and transmit classified information.107 Additionally, it requires that agency officials responsible for releasing classified information to anyone outside the executive branch “ensure the protection of the information in a manner equivalent to that provided within the executive branch.”108 If an unauthorized disclosure occurs, the agency is required to “take appropriate and prompt corrective action.”109

However, safeguarding classified information is not solely an executive branch function.

Congress has also instituted numerous policies to safeguard the classified information under its control. In addition to establishing detailed security clearance processes and maintaining secured facilities,110 Congress is also equipped to investigate security violations for classified documents.111 The Senate and House each have security offices and ethics committees that investigate suspected security violations.112 For example, the Senate Ethics Committee has the responsibility to “receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate.”113

Given the responsibilities of both branches of government to ensure classified information is secure, Director Brennan’s offer of a joint investigation into the issue was likely the best policy choice. However, years into the SSCI’s tense and highly politicized investigation of the detainee program, this level of cooperation was unlikely to be accepted, especially when

Chairman Feinstein maintained that her staff did nothing wrong.114 She continued to assert that

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her staff located the Panetta Review “using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation,” and she speculated that the documents were made available to the committee either mistakenly, along with the 6.2 million pages of other documents the CIA intentionally disclosed, or intentionally by a CIA whistleblower.115 As this debate raged, SSCI and the executive branch were simultaneously engaged in a parallel debate over SSCI findings about the CIA detention and interrogation programs and whether the committee would be able to disclose those findings once its investigation was complete.116

VI. Deciding to Declassify

Nearly three years after the committee’s investigation began, the SSCI Majority finally completed a 6,700 page study.117 On December 13, 2012, the SSCI approved this document by a vote of 9 to 6.118 However the entire study remained highly classified. The executive branch makes classification decisions in accordance with Executive Order 13526, which is grounded in both statutory and constitutional authority.119 Under this order, when classified information is

“incorporated, paraphrased, restated, or generated in a new form,” the resulting document has the same classification level as the original materials.120 Although Congress is not constitutionally bound to follow this system,121 Congressional rules prohibit its members and committees from making declassification decisions without substantial cooperation with the executive branch.122

Under normal circumstances, executive branch officials declassify information based on

Executive Order 13526.123 Most information must be declassified after either 10 or 25 years.124

Executive branch officials may extend or reduce these dates depending on whether the

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information still threatens national security;125 however, it must be declassified “as soon as it no longer meets the standards for classification.”126 The agency that originally classified the information generally “has the authority to declassify information when the public interest in disclosure outweighs the need to protect that information.”127 As a practical matter, this level of discretion grants the President and senior executive branch officials the ability to declassify information that is beneficial to the administration, while continuing to classify information that would be harmful to their interests, as long as the information could arguably threaten America’s national security interests.128

Congress also asserts that it has the authority to unilaterally declassify information. The

Senate Manual for the 113th Congress, which explains the procedural authorities for Senate business,129 establishes a clear process under which the Senate can declassify information over the objections of the executive branch.130 However, Congress generally recognizes the

President’s important constitutional role in national security decisions. The rules therefore require notice to the executive branch before the Senate takes unilateral action to declassify materials.131 Under the Senate rules, the SSCI can publically disclose classified information against the wishes of the executive branch, but only after notifying the Senate leadership of both parties and the President of the United States.132 If the President objects and certifies that the disclosure would threaten the national interest of the United States and outweigh any public interest in its release, the Majority or Minority of the Senate may require a vote of the full Senate before any disclosure may occur.133 Because this decision is made under Senate rules, if the

Senate votes to declassify the materials, they can be released to the public without further action by the House of Representatives or the President.134

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Additionally, a member of Congress would not be subject to criminal penalties for disclosing classified information by entering it into the Congressional record. As discussed above, the Constitution’s Speech or Debate Clause generally protects members of Congress from civil and criminal penalties associated with their statements in Congress.135 However, this clause only prohibits questioning “in any other Place” outside of Congress and would therefore not protect members from repercussions imposed under the House and Senate rules.136

Senator Mike Gravel tested the limits of the Speech or Debate clause with the “Pentagon

Papers” during the Vietnam War.137 The Pentagon Papers were “Top Secret” Department of

Defense documents on the history of US involvement in Vietnam.138 Senator Gravel and one of his staff members entered 4,000 pages of these documents into the record at a Senate subcommittee hearing.139 He was subsequently prosecuted for this act and other attempts outside of Congress to release the documents. The Supreme Court held that the clause made it impermissible for a grand jury to question what Senator Gravel and his aide entered into the record at the subcommittee hearing.140 However, the Speech or Debate clause does not provide absolute protection from all actions a member of Congress might take with respect to classified documents. For example, the Court held that the grand jury could investigate how Senator

Gravel obtained the classified materials and whether he also attempted to have them published in the media.141 The court explained that “[w]hile the . . . clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.”142

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Under any circumstances, acting to disclose classified documents without the consent of the executive branch is an extreme step members of Congress almost never take. Chairman

Feinstein made clear that she would not pursue a unilateral approach, and she remained committed to cooperating with the Administration.143 In keeping with this commitment, once the

SSCI approved its findings, Chairman Feinstein submitted the full study to the executive branch for review.144 Six months later, the CIA provided its official comments, which were followed by

15 meetings in which the CIA and SSCI discussed the agency’s concerns.145 The CIA argued that portions of the committee’s initial study were incomplete or inaccurate, and pushed hard for revisions to the document.146 Following these meetings, the committee worked to incorporate feedback from the agency and finalize its study.147 Finally, on April 3, 2014, five years after the investigation began, the SSCI decided to move ahead with efforts to declassify specific portions of its findings.148 In a bipartisan vote of 11 to 3, the committee agreed to begin the final process of releasing the report’s executive summary, findings, and conclusions, along with the

Minority’s dissent.149

Up to this point, SSCI Republicans had “been harshly critical of the report, calling it a one-sided attempt to discredit the CIA and the Bush administration.”150 However, SSCI Vice

Chairman Saxby Chambliss voted to declassify the documents, stating that “[d]espite the report’s significant errors, omissions and assumptions … American people [should] be able to see it and judge for themselves.”151 Following this vote, the committee submitted the documents to the

White House and began yet another negotiation.152

The White House was publically supportive of declassification,153 but sought far more redactions than Chairman Feinstein wanted to accept.154 In August, after months of additional

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executive branch review,155 Chairman Feinstein issued a statement expressing concern that the

White House had insisted on redactions that would “eliminate or obscure key facts that support the report’s findings and conclusions.”156 She committed to only releasing the report once the committee was satisfied that no inappropriate redactions remained.157

On December 8, 2014, after months of additional high-level negotiations, the SSCI and

Administration agreed on a finalized set of redactions. They publically released a 480-page executive summary,158 along with 20 findings and conclusions,159 minority views from Vice

Chairman Chambliss joined by all of the committee’s Republican members except Senator Susan

Collins,160 and additional comments from other SSCI members.161 The CIA declassified and published its comments to the SSCI study the same day.162

The executive summary details actions taken under the CIA Detention and Interrogation

Program.163 It includes discussion of all 119 individuals the CIA held between 2001 and 2009 and the specific “enhanced interrogation techniques” the agency used to extract information from them.164 The study concluded that the manner in which these techniques were administered constituted torture,165 a point that the minority views and CIA comments did not refute.166 The summary also concluded that the CIA’s findings did not present sufficient evidence to conclude that enhanced interrogation techniques produced vital intelligence.167 However, the CIA comments argue that these techniques saved lives.168 The CIA comments and SSCI summary agree that better processes are needed to evaluate whether the CIA’s activities improved national security.169

The summary also described failures in oversight within the CIA, the National Security

Council, and Congress.170 Additionally, it identified management failures that contributed to

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harsh detainee treatment.171 The CIA comments recognize similar failures at the beginning of its program, but insist that the agency implemented appropriate steps to correct these issues.172 The

SSCI summary and additional views of other members also analyzed the negative impact public knowledge of the CIA’s programs had on America’s reputation at home and abroad.173 Finally,

SSCI offered suggestions, such as outlawing waterboarding and other specified interrogation techniques, enhancing Congress’ oversight capabilities, and reforming the CIA’s management of covert actions.174

Chairman Feinstein explained that she intended the committee’s findings to expose

“brutality that stands in stark contrast to our values as a nation” and record “a stain on our history that must never again be allowed to happen.”175 Vice Chairman Chambliss stated that although he “agree[d]with some of the conclusions in this report, [he took] strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin.”176

Although the SSCI investigation ended with some measure of bipartisanship, it concluded far from where it began years before. The SSCI initiated its investigation as a bipartisan effort to ensure Congress subjected one of the most controversial covert programs in history to rigorous oversight. In the end, the controversy over how this investigation was conducted gained almost as much attention as the detention and interrogation program it set out to expose. This process showed not only the influence congressional oversight can have on executive branch programs, but also showed what happens when the constitutional authorities of two branches of government clash.

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Conclusions

The SSCI report was hailed as a triumph of open government by some177 and condemned as a costly and unnecessary attempt to disparage America’s reputation by others.178 In the end, it was a major step toward rigorous congressional oversight of covert activities. It exposed critical areas of conflict and legal ambiguity in America’s divided system of government that showed both the advantages and disadvantages of a system of checks and balances.

The SSCI initiated its investigation pursuant to Congress’ broad oversight powers and its particular jurisdiction for oversight of intelligence activities. The committee is specifically empowered to work with classified information; however, longstanding practice dictates that its access to this information depends on reaching negotiated agreements with the executive branch.

The SSCI dealt with this initial clash between its oversight authority and the executive branch’s national security authority by negotiating a compromise with the CIA. SSCI gained access to the

CIA’s classified documents at a facility the CIA could control.

This arrangement caused the SSCI and CIA staff to clash almost immediately, first over instances of CIA staff removing documents from the computer network that they had previously shared with the SSCI, and later over the committee’s discovery of the Panetta Review and decision to move copies of these documents to Capitol Hill. When the CIA realized that the committee had copies of the documents, they turned the tabled on the SSCI investigators and initiated an investigation of the committee’s conduct. This move called into question the constitutional authority of both branches of government. While the CIA asserted it had the authority and responsibility to investigate how the committee staff had obtained classified documents the agency had not intended it to access, Chairman Feinstein insisted the CIA’s

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search of the computer network violated both statutory law and the Constitution’s Speech or

Debate clause. A series of subsequent investigations resulted in referrals to the DOJ of possible criminal action by both the CIA and SSCI. However, the DOJ declined to step in, which avoided a chance that the third branch of government might be dragged into the dispute through a showdown in the courts.

As this clash over competing investigations raged, the committee forged ahead with its investigation and eventually approved its 6,700-page study. This step marked the start of an additional clash with the executive branch. Although the Senate technically has the ability to make any declassification decision it deems appropriate, it virtually always makes these decisions through close coordination with the executive branch. The SSCI negotiated first with the CIA to finalize its full study and then directly with the White House over which portions of this study could be declassified and released to the public. In the end, it released nearly 500 pages summarizing its report along with views from the minority and individual members of the committee. The documents served to chronicle the CIA’s detention and interrogation program, as well as the heated process through which the investigation was completed.

The clashes in this investigation illustrate that America’s Constitution, laws, and customs strike a contentious balance been executive and legislative authority, especially in matters of national security. Although the process was tense, long, and costly, it succeeded in balancing the national security priorities of the CIA and White House against the accountability legislators sought. At its conclusion, the investigation exposed the important role America’s constitutional balance of powers provides. Although there are serious drawbacks to a system that takes years to produce results, each branch has resources it can use to resolve disputes. The long process

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through which the SSCI’s findings came to light shows how the competencies of each branch of government can help produce a carefully considered agreement. The system is inefficient, but when it comes to the difficult decisions of whether to enhance open governance or secure intelligence secrets, efficiency should not be America’s highest priority.

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1 See Press Release, Senator Dianne Feinstein, Feinstein, Bond Announce Intelligence Committee Review of CIA Detention and Interrogation Program (Mar. 5, 2009), http://www.feinstein.senate.gov/public/index.cfm/press- releases?ID=d882ff87-5056-8059-763f-e15d555d5f89. 2 See Wells Bennett, Senator Feinstein to Speak on the Senate Floor Regarding the SSCI Report and Torture, LAWFARE (Dec. 9, 2014) http://www.lawfareblog.com/2014/12/senator-feinstein-to-speak-on-the-senate-floor- regarding-the-ssci-report-and-torture. 3 See Press Release, U.S. Senator Dianne Feinstein, Statement on Intel Committee’s CIA Detention, Interrogation Report (Mar. 11, 2014), http://www.feinstein.senate.gov/public/index.cfm/ 2014/3/feinstein-statement-on- intelligence-committee-s-cia-detention-interrogation-report [hereinafter Feinstein Statement 2014]. The initiative began with the support of Vice-Chair Kit Bond, see Feinstein, supra note 1, but Republicans withdrew their support in September of the same year, following Attorney General Eric Holder’s announcement that the Department of Justice planned to conduct a separate criminal investigation of the CIA’s program, Newsweek, Sen. Bond Pulls GOP Staff Off Torture Investigation (Sept. 25, 2008), http://www.newsweek.com/sen-bond-pulls-gop-staff-torture- investigation-211758. Although criminal charges were never brought against anyone at the CIA in connection with the detainee program, the executive branch move to consider criminal charges affected the dynamics of the rest of the SSCI investigation. 4 See Feinstein Statement 2014, supra note 3. 5 See id. 6 See Alissa M. Dolan et al., CONG. RESEARCH SERV., RL30240, CONGRESSIONAL OVERSIGHT MANUAL 22-24 (2014). 7 See, e.g., Dolan, supra note 6, at 23 (citing Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 (1975) (“scope of [Congress’] power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”); Watkins v. United States, 354 U.S. 178, 187 (1957) (“power of the Congress to conduct investigations is inherent in the legislative process. That power is broad.”)). 8 See Senate Intelligence Committee Order, reprinted in MATTHEW MCGOWAN, U.S. SENATE MANUAL 113TH CONG. 153 (2014), available at http://www.gpo.gov/fdsys/pkg/SMAN-113/pdf/SMAN-113.pdf; see generally Alissa M. Dolan, Todd Garvey & Walter J. Oleszek, CONG. RESEARCH SERV., IF10015, CONGRESSIONAL OVERSIGHT AND INVESTIGATION (2014). 9 See Senate Intelligence Committee Order, supra note 8, at 153. 10 See id.; KAREN HAAS, RULES OF THE HOUSE OF REPRESENTATIVES, 113TH CONG. 15 (2013) available at http://clerk.house.gov/legislative/house-rules.pdf [hereinafter House Rules]. 11 See generally Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009); see Dolan, supra note 6, at 60-6; Jennifer K. Elsea, CONG. RESEARCH SERV., RS21900, THE PROTECTION OF CLASSIFIED INFORMATION: THE LEGAL FRAMEWORK 3-5 (2013). 12 See Exec. Order No. 13526, supra note 11, at § 1.1-1.4. Classification decisions are made under statutory authority granted by Congress, but Presidents also claim independent constitutional authority for classification decisions under the executive’s national security powers. Id. The executive branch’s initial decision that a document warrants classification is an initial hurdle that precipitates the clashes discussed in this paper. If the executive branch choses not to classify a document, Congress will not have to contend with any of the additional barriers classification requires. See id.; Elsea, supra note 11, at 3-4. 13 See Frederick M. Kaiser, CONG. RESEARCH SERV., RS20748, PROTECTION OF CLASSIFIED INFORMATION BY CONGRESS: PRACTICES AND PROPOSALS 8 (2011). 14 See id. 15 See id. 16 See Dolan, supra note 6, at 61. Although these clearances are routine for intelligence committee staff, they present another barrier to hiring staff for an investigation and another potential point of conflict between the executive and legislative branches when clearances are not processed quickly. 17 Brian Beutler, Snowden Revelations Cast New Doubts On Intelligence Oversight Process, NAT’L SEC. NETWORK (Jun. 19, 2013), http://nsnetwork.org/mieke-eoyang-quoted-in-talking-points-memo-on-intelligence-oversight- process. 18 See Tim Starks, Unmanned Oversight, NEW REPUBLIC (Feb. 7, 2013), http://www.newrepublic.com/article/112347/congress-and-drones-why-has-oversight-been-so-bad.

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19 See Dolan, supra note 6, at 61. 20 See 50 U.S.C. §§ 3091-93; see Dolan, supra note 6, at 61. 21 See Dolan, supra note 6, at 49-51, 59-60. 22 See 50 U.S.C. §§ 3091-93; Dolan, supra note 6, at 61. The full committees “may be bypassed—based on the urgency of a situation, to meet extraordinary circumstances affecting the vital interests of the United States, or to protect the extremely sensitive nature of the information—in favor of notification to the so-called ‘Gang of Eight’ or ‘Gang of Four.’” Kaiser, supra note 13, at 6. 23 See Matthew Waxman, Observations About Targeting and Congressional Intelligence Oversight, LAWFARE (Feb. 17, 2013), http://www.lawfareblog.com/2013/02/observations-about-targeting-and-congressional-intelligence- oversight. 24 For example, the Office of Legal Counsel has stated “that according to “longstanding practice … the ‘need-to- know’ determination for disclosures of classified information to Congress is made through established decisionmaking channels at each agency.” Dolan, supra note 6, at 61 (citing Christopher H. Schroeder, Access to Classified Information, 20 Op. Off. Legal Counsel 402, 411 (1996)). 25 See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976). 26 See id. at 386. 27 See United States v. AT&T, 567 F.2d 121, 128 (D.C. Cir. 1977). 28 See id. 29 U.S. CONST. art. 1, § 6, cl. 1. 30 See United States v. AT&T, 567 F.2d at 129. 31 See id. at 131-32. 32 See id. 33 Dolan, supra note 6, at 63 (citing United States v. AT&T, 567 F.2d at 131-32). 34 See Matthew Waxman, Observations About Targeting and Congressional Intelligence Oversight, LAWFARE (Feb. 17, 2013), http://www.lawfareblog.com/2013/02/observations-about-targeting-and-congressional-intelligence- oversight. 35 See id. 36 See id. The DOJ “document controversy” and the heated and delayed confirmation process of Director Brennan are examples of the weight members of Congress, and especially Senators, can exert to get their way. Id.; Starks, supra note 18 (“The juice the committees get is from public support. To the extent that the committees are focusing public attention on intelligence issues, they have a lever in negotiations with the executive branch.”). 37 See Jonathan S. Landay, Ali Watkins And Marisa Taylor, Senate’s Inquiry into CIA Torture Sidesteps Blaming Bush, Aides, MCCLATCHY (Oct. 16, 2014), http://www.mcclatchydc.com/2014/10/16/243669/senates-inquiry-into- cia-torture.html. 38 See Feinstein Statement 2014, supra note 3. 39 See id. 40 Id. 41 See id. 42 See id. 43 See id. 44 See id. 45 See CIA Office of the Inspector General, Summary of Report (Jul. 31, 2014), available at http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2014/07/31/National- Security/Graphics/Cleaned2014-07-30%20Unclass%20Summary%20of%20RDI%20ROI%2031%20Jul%2014.pdf. 46 See Feinstein Statement 2014, supra note 3. 47 Id. 48 Id. 49 See Jason Leopold, Panel: The CIA Didn't Spy on the US Senate — But the Senate Stole Documents From the CIA, VICE NEWS (Jan. 14, 2015), https://news.vice.com/article/panel-the-cia-didnt-spy-on-the-us-senate-but-the- senate-stole-documents-from-the-cia. 49 See Feinstein Statement 2014, supra note 3. 50 See Leopold, supra note 49.

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51 See id. 52 See id. 53 See Feinstein Statement 2014, supra note 3. 54 See id. 55 See id. 56 See id.; Leopold, supra note 49. 57 See Mark Mazzetti, Behind Clash Between C.I.A. and Congress, a Secret Report on Interrogations, N.Y. Times (Mar. 7 2014), http://www.nytimes.com/2014/03/08/us/politics/behind-clash-between-cia-and-congress-a-secret- report-on-interrogations.html?ref=markmazzetti&_r=1. 58 See Feinstein Statement 2014, supra note 3. 59 See id. 60 Id. 61 Id. 62 See id. 63 See id.; CIA Accountability Review Board, Final Report of the Rendition, Detention, and Interrogation Network Agency Accountability Board (Jan. 14, 2015), available at https://www.cia.gov/library/reports/Redacted-December- 2014-Agency-Accountability-Board-Report.pdf. 64 See id. 65 See Feinstein Statement 2014, supra note 3; CIA Accountability Review Board, supra note 63. 66 Feinstein Statement 2014, supra note 3. 67 See id. 68 See id. 69 Leopold, supra note 49. 70 See Feinstein Statement 2014, supra note 3. 71 Id. 72 See id. 73 See Leopold, supra note 49. 74 See Mazzetti, supra note 57. 75 See Leopold, supra note 49. 76 See id. 77 See Feinstein Statement 2014, supra note 3. 78 See Leopold, supra note 49. 79 See Leopold, supra note 49; Chris Donesa, SSCI v. CIA—Three Key Questions, LAWFARE (Mar. 12, 2014), http://www.lawfareblog.com/2014/03/ssci-v-cia-three-key-questions. 80 See Donesa, supra note 79; Eli Lake, What's Inside CIA’s ‘Black Site’ Database? And Were Senate Staffers Allowed to See?, Daily Beast (Mar. 7, 2014), http://www.thedailybeast.com/articles/2014/03/07/what-s-inside-cia-s- black-site-database-and-were-senate-staffers-allowed-to-see.html. 81 See Feinstein Statement 2014, supra note 3. 82 Id. 83 U.S. CONST. art. 1, § 6, cl. 1. 84 Feinstein Statement 2014, supra note 3. 85 See CIA Office of the Inspector General, supra note 46. 86 Id. 87 Id.; Feinstein Statement 2014, supra note 3. 88 CIA Office of the Inspector General, supra note 46. 89 See 18 U.S.C. § 2511; CIA Office of the Inspector General, supra note 46. 90 See 18 U.S.C. § 1030; CIA Office of the Inspector General, supra note 46. 91 CIA Office of the Inspector General, supra note 46. 92 Exec. Order No. 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981). 93 See MEMORANDUM OF UNDERSTANDING: REPORTING OF INFORMATION CONCERNING FEDERAL CRIMES, available at http://fas.org/irp/agency/doj/mou-crimes.pdf; CIA Office of the Inspector General, supra note 46. 94 CIA Office of the Inspector General, supra note 46.

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95 David S. Joachim, Justice Dept. Declines to Investigate C.I.A. Review, N.Y. TIMES (Jul. 10, 2014), http://www.nytimes.com/2014/07/11/us/politics/justice-dept-declines-to-investigate-rival-claims-of-cia-and-senate- panel.html?rref=us&module=Ribbon&version=context®ion= Header&action=click&contentCollection=U.S.&pgtype=article&_r=0. 96 See Feinstein Statement 2014, supra note 3. 97 Id. 98 Id. 99 See Burgess Everett, 2 Dems: CIA Director John Brennan Should Resign, POLITICO (Jul. 31, 2014), http://www.politico.com/story/2014/07/mark-udall-cia-john-brennan-resign-109610.html#ixzz3ZRy6aAJ1. 100 See CIA Accountability Review Board, supra note 63. 101 See id. 102 See id. 103 See id. 104 Id. 105 Id. 106 See Dolan, supra note 6, at 60-61. 107 Exec. Order No. 13526, supra note 11, at §6.1(d); Elsea, supra note 11, at 5. 108 Id. 109 Id. 110 See Kaiser, supra note 13, at 7-8. 111 See id at 7. 112 See id. 113 Id. 114 See Feinstein Statement 2014, supra note 3. 115 Id. 116 Dianne Feinstein, U.S. Senator, KEY STUDY DATES, http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=7eb4b619-9244-44b0-b4bb- 2cc6b15db025&SK=2DEA6A271F3B8CA804AAE472BD5B53EE. 117 See Press Release, U.S. Senator Dianne Feinstein, Feinstein Remarks on CIA Report (Dec. 9, 2014), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_id=d2677a34-2d91-4583-92a4- 391f68ceae46. 118 See Feinstein, supra note 116. 119 Exec. Order No. 13526, supra note 11; see also Elsea, supra note 11, at 2. 120 Exec. Order No. 13526, supra note 11, at §§2.1 - 2.2. 121 “Congress has passed statutes requiring declassification, “E.g., Nazi War Crimes Disclosure Act, Pub. L. No. 105-246, 112 Stat. 1859 (1998); President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No. 102-526, 106 Stat. 3443 (1992); Foreign Relations Authorization Act, Pub. L. No. 102-138, § 198, 105 Stat. 647, 685-691 (1991).” Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 176 n. 102 (2006). 122 See id. at 151. 123 Exec. Order No. 13526, supra note 11, at §1.5; Elsea, supra note 11, at 3-4. 124 Exec. Order No. 13526, supra note 11, at §1.5(b). “Exceptions to the time guidelines are reserved for information that can be expected to reveal the identity of a human intelligence source or key design concepts of weapons of mass destruction.” Elsea, supra note 11, at 4 (citing Exec. Order No. 13526, supra note 11, at §1.5(c)). The deadline for declassification can be extended if the threat to national security still exists. See id. 125 See id. 126 Exec. Order No. 13526, supra note 11, at §3.1(a). 127 Id. at §3.1(d). 128 See Elsea, supra note 11, at 11-12. “Recent high-profile leaks of information regarding sensitive covert operations in news stories that seemed to some to portray the Obama Administration in a favorable light raised questions regarding the practice of ‘instant declassification.’” Id.

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129 See Megan S. Lynch & Richard S. Beth, CONG. RESEARCH SERV., RL30788, PARLIAMENTARY REFERENCE SOURCES: SENATE 1 (2008). 130 See Senate Intelligence Committee Order, § 8, reprinted in MATTHEW MCGOWAN, U.S. SENATE MANUAL 113TH CONG. 158-61 (2014), available at http://www.gpo.gov/fdsys/pkg/SMAN-113/pdf/SMAN-113.pdf ; see also “[n]othing [within the House rules] shall be construed to prevent the select committee from publically disclosing classified information in a case in which it determines that national interest in the disclosure of classified information clearly outweighs any infringement on the privacy of a person.” House Rules, supra note 10, at 15.; Mark D. Young, National Insecurity: The Impacts of Illegal Disclosures of Classified Information, 10 I/S: J.L. & Pol’y for Info. Soc’y 367, 373 (2014). 131 See Senate Intelligence Committee Order, supra note 130, at Sec. 8. (b)(1). 132 See id. 133 See id. 134 See id. 135 Cong. Research Serv., Legal Sidebar, Who’s Overseeing Whom? The CIA, SSCI, and the Speech or Debate Clause (Mar. 13, 2014), http://www.crs.gov/LegalSidebar/details.aspx?ID=840&Source=search. 136 See id. 137 Jack Goldsmith, Bruce Ackerman on Congressional Publication of Classified Information and the Speech and Debate Clause, LAWFARE (Aug. 4, 2013), http://www.lawfareblog.com/2013/08/ackerman-on. 138 See id. 139 See id. 140 See Gravel v. United States, 408 U.S. 606, 609, 622-29 (1972); Cong. Research Serv., supra note 135. 141 See Gravel, 408 U.S. at 609, 622-29. 142 Id. at 626. 143 See Press Release, U.S. Senator Dianne Feinstein, Feinstein Statement on CIA Detention, Interrogation Report (Dec. 13, 2012), http://www.feinstein.senate.gov/public/index.cfm/2012/12/feinstein-statement-on-cia-detention- interrogation-report. 144 See Feinstein, supra note 143; Feinstein supra note 116. 145 See Feinstein supra note 116. 146 See David S. Joachim, Senate Panel Votes to Reveal Report on C.I.A. Interrogations, N.Y. Times (Apr. 3, 2014), http://www.nytimes.com/2014/04/04/us/politics/senate-panel-approves-release-of-cia-interrogation-report.html. 147 See Feinstein supra note 116. 148 See id. 149 See Joachim, supra note 146; Feinstein supra note 116. 150 Joachim, supra note 146. 151 Id. 152 See Wells Bennett, SSCI Votes to Release Parts of Detention and Interrogation Report, LAWFARE (Apr. 3 2014), http://www.lawfareblog.com/2014/04/ssci-votes-to-release-parts-of-detention-and-interrogation-report. 153 See Joachim, supra note 146. 154 See Feinstein Statement 2014, supra note 3. 155 See Ali Watkins & Ryan Grim, White House Chief Of Staff Negotiating Redaction Of CIA Torture Report, HUFF. POST (OCT. 21, 2014), http://www.huffingtonpost.com/2014/10/21/white-house-cia-torture_n_6018488.html. 156 Press Release, Senator Dianne Feinstein, Feinstein Statement on Redactions in Detention, Interrogation Study (Aug. 5, 2014), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=d574da86-1171-4bd9-b87f- 707e96fa088d. 157 See id. 158 See SSCI, Comm. Study of the CIA’s Detention and Interrogation Program: Executive Summary (2014), available at http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=7c85429a-ec38-4bb5-968f- 289799bf6d0e&SK=D500C4EBC500E1D256BA519211895909 [hereinafter SSCI Summary]. 159 See SSCI, Comm. Study of the CIA’s Detention and Interrogation Program: Findings and Conclusions (2014), available at http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=a992171e-fd27-47bb-8917- 5ebe98c72764&SK=04753BC866283C0F5913D7E1A24FA851 [hereinafter SSCI Findings and Conclusions].

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160 See SSCI, Comm. Study of the CIA’s Detention and Interrogation Program: Additional Views (2014), available at http://www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=db587bbf-f52d-47eb-b90c-a60ff3f92484; Press Release, Senator Susan Collins, Sen. Collins’ Views on Senate Intelligence Committee Report on CIA Interrogation Program (Dec. 9, 2014), http://www.collins.senate.gov/public/index.cfm/press- releases?ID=af9451d7-9eab-41fa-a63f-71886cd65c52. 161 See SSCI, Comm. Study of the CIA’s Detention and Interrogation Program: Additional Views (2014), available at http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=25a4d18c-bdf2-408a-80fe- 3dabda6695fa&SK=B4E2E153CCFB72B3C9300F7803AF8755. 162 See John O. Brennan, CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition, Detention, and Interrogation Program, CIA (Jun. 27, 2013), available at https://drive.google.com/file/d/0B_PclSuEzVCVUGg4QUYzSmFoeXM/view?pli=1. 163 See SSCI Summary, supra note 158, at 4-6. 164 Id. 165 See id. 166 See Anne Daugherty Miles, CONG. RESEARCH SERV., IN10197, THE SSCI STUDY OF THE CIA’S DETENTION AND INTERROGATION PROGRAM: ISSUES TO CONSIDER (2014). 167 SSCI Findings and Conclusions, supra note 159, at 2. 168 See Brennan, supra note 162, at 12-13. 169 See id. at 17; Miles, supra note 166. 170 See SSCI Summary, supra note 158, at 6-7. 171 See id. 172 See Brennan, supra note 162, at 3. 173 See Miles, supra note 166. 174 See id. 175 See Bennett, supra note 152. 176 See id. 177 See Human Rights Watch, Kenneth Roth on Bush Era Torture and CIA Denials (Dec. 9, 2014), http://www.hrw.org/node/131091. 178 See Tom Nichols, The Senate Torture Report: Was It Worth It?, THE FEDERALIST, (Dec. 11, 2014), http://thefederalist.com/2014/12/11/the-senate-torture-report-was-it-worth-it.

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