Dueling Over Documents

Dueling Over Documents:

Constitutional Lessons from the Senate Report on CIA Detention and Interrogation Practices

Vann Bentley Congressional Investigations Spring 2015

Bentley

I. Introduction

After the terrorist attacks of September 11, 2001, President Bush signed a secret memorandum authorizing the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests.”1 In 2002, Bush signed a memorandum stating that the Geneva Conventions do not apply to the global conflict with Al-Qaeda.2

Over the following seven years the CIA, with varying levels of collaboration and approval from the Bush Administration, created an interrogation and detention program for foreign terrorism suspects that employed methods that would be characterized by many as torture and as violating the Geneva Conventions. During this period, it was unclear exactly what methods the CIA was employing and on whom, how much the CIA was keeping the White House or Congress informed, whether there was any oversight of the program, and whether and how much of the information coming from the CIA about the program was accurate.

After it became known that in 2007 the CIA had destroyed tapes of interrogations of detainees, the Senate Select Committee (“the committee”) on

Intelligence became interested in investigating the Interrogation and Detention

Program.3 The investigation officially commenced in 2009, and the committee finished the report in 2012, but an executive summary of the report was not released until December 9, 2014. Throughout the process of creating the report and following the completion of the report, the committee found conflict with the CIA over which classified documents should be accessible to the committee staff, how

1 Bentley much control the committee staff should have over the documents, and finally, which classified documents should be declassified and released to the public.

Aside from the actual content of the report, there are important lessons to be learned from conflict between the CIA and the committee over information. First, were the agreements between the committee and the CIA over the handling of documents legally binding, and if so, did the committee violate the constitutional separation of powers when it broke those agreements? Second, did the CIA violate the Constitution or other laws when it investigated the committee? Finally, what was the proper role of the Obama Administration in the process of declassifying the report?

II. Background on the Senate Torture Report

On March 5, 2009, Senator Dianne Feinstein and Senator Kit Bond, who at the time were respectively Chairman and Vice Chairman of the Senate Select Committee on Intelligence, announced that the committee would review the CIA’s detention and interrogation program.4 The scope of the review would include “how the CIA, created, operated, and maintained its detention and interrogation program,” how the CIA assessed which detainees had relevant information, whether the CIA accurately described the program to other parts of the US Government (including the committee itself), and whether the CIA implemented the program in compliance with relevant guidance and policy.5 The review initially had bipartisan support, with the Committee voting 14-1 to approve the investigation.6 However, once the

Department of Justice indicated that it would begin its own review of the program, the Republicans on the committee refused to further participate.7

2 Bentley a. Breakdown in Bipartisan Cooperation

Before taking office, President Obama indicated that he would not aggressively pursue investigations of the CIA detention and interrogation program, expressing “a belief that we need to look forward as opposed to looking backwards.”8 However, following the release of detailed memoranda from the Bush

Administration describing CIA interrogation techniques, the Obama Administration signaled that it was reconsidering opening an investigation of the program.9 Senator

Feinstein wrote to the President on April 20, 2009, requesting that “comments regarding holding individuals accountable for detention and interrogation related activities be held in reserve until the Senate Select Committee on Intelligence is able to complete its review.”10 Despite this request, Attorney General Eric Holder announced on August 24, 2009 that he would be opening a preliminary review into whether federal laws were violated in the interrogation of detainees in overseas locations.11 This announcement led the Republicans on the committee to discontinue their participation in the investigation, with Senator Bond stating,

“What current or former CIA employee would be willing to gamble his freedom by answering the committee’s Questions? Indeed, forcing these terror fighters to make this choice is neither fair nor just.”12 Senator Bond was referring to a reported request from the Department of Justice to the committee not to provide immunity to any witnesses.13 b. Panetta Review Creates Tension Between the CIA and the Committee

Further problems arose for the investigation when cooperation between the

CIA and the committee began to break down. According to Senator Feinstein’s

3 Bentley account, in 2009, the CIA set up a “stand-alone computer system . . . segregated from

CIA networks” to be used at a secure CIA facility in Virginia for committee staffers to review CIA documents relevant to the detention and interrogation program.14 In a speech on the Senate floor in 2014, Senator Feinstein alleged that in February and

May 2010, CIA employees had removed roughly 920 documents from committee access without notice or explanation.15 Feinstein further alleged that in May 2010, the CIA’s director of congressional affairs acknowledged this incident and apologized.16

In roughly the same period in 2010, committee staffers found drafts of what is now known as the “Panetta Review,” a collection of documents analyzing the CIA’s detention and interrogation techniques and internally acknowledging CIA wrongdoing.17 At that point in time, it was unclear exactly what the purpose of the

Panetta Review had been, but Senator Feinstein stated that the committee believed that the Panetta Review had been written by CIA personnel to “summarize and analyze the materials that had been provided to the committee for its review.”18

Since that time, the CIA has revealed that the Panetta Review was, in fact, a review ordered by C.I.A. Director Leon Panetta to better understand the millions of documents that the CIA was handing over to the committee, and this project was led by Peter Clement, the CIA deputy director of intelligence for analytic programs.19

The Committee claims that the actual facts were not the remarkable part of the

Panetta Review; rather, the analysis and acknowledgment of CIA wrongdoing made the Panetta Review valuable.20 According to Senator Feinstein, after an unknown

4 Bentley amount of time, the CIA, once again without notice or explanation, removed the vast majority of the documents in the Panetta Review from committee access.21

The committee completed the report and voted 9-6 to declassify the report in

December 2012.22 But first, the White House and the CIA had to agree to the declassification of the report. However, in June 2013, the CIA completed its own report for the Committee challenging the findings of the report, including inaccuracies in the conclusions and the lack of interviews of CIA employees (the

Committee contends that it requested interviews and was denied).23 c. The Removal of the Panetta Review from CIA Premises, and the CIA’s

Retaliation

By Senator Feinstein’s account, the Committee’s biggest problem with the

CIA’s response to their report was that “some of these important parts that the CIA now disputes in [the] committee study are clearly acknowledged in the CIA’s own

Internal Panetta Review.”24 This discrepancy, Feinstein said, led the committee staff to “securely transport” a copy of the Panetta Review from the CIA facility to a secure room in the Hart Senate Office Building.25 This action was a significant development in the working relationship between the committee and the CIA because it violated the agreed upon process, in which the committee would let the CIA review documents and make necessary redactions before committee staffers would be allowed to remove those documents to Senate office buildings.26 Senator Feinstein claimed the Committee staff kept “the spirit of the agreements” by redacting any names or identifying information of personnel or site locations before the removal

5 Bentley of the document.27 However, this explanation was unlikely to settle the minds of CIA officers.

Senator Feinstein gave several reasons why the committee staff (she was conspicuously vague on who actually moved the Panetta Review and under whose authority) felt the need to move the documents without notifying the CIA. First, she explained that these documents corroborate information from the committee’s report that the CIA denied.28 She said that after the CIA had removed some of these documents from the computer system provided to the committee, the CIA showed that they were willing to violate their agreements with the committee and the White

House. Furthermore, the CIA had shown in its previous destruction of interrogation videotapes that it was willing to destroy important evidence.29 Because of the importance of the documents to corroborating the committee report and the likelihood that the CIA would hide or destroy this evidence, the committee felt it needed to secure physical copies within the Hart Senate Office Building.30

The relationship further deteriorated when CIA Director John Brennan informed Senator Feinstein that CIA agents had conducted a search of the committee’s computers at the CIA facility, in response to information that the committee had copies of the Panetta Review.31 Furthermore, the CIA referred the matter to the DOJ, complaining that the committee may have gained inappropriate access to CIA computers.32 d. Negotiations Over Declassification

The committee voted to declassify the summary of the report on March 31,

2014. The White House, the CIA, and the committee had tense negotiations for the

6 Bentley remainder of 2014 over how much of the executive summary could be declassified.

The issues of disagreement included how CIA officers and detainees would be described in the document, as well as claims that the CIA exaggerated the success of the detention and interrogation programs.33 On December 9, 2014, the executive summary of the report was released.

III. Did the Committee Violate the Constitution or Other Laws in Breaking Its

Agreements with the CIA? a. Statutory Authority of the Committee

By Senator Feinstein’s own admission, committee staff took a physical copy of the Panetta Review from the CIA facility to the Hart Senate Office Building without informing the CIA, directly breaking the agreement between the committee and the CIA that CIA staff would review any documents before being moved.34

Feinstein’s justification was that this was in the “spirit of the agreements” because the names of non-supervisory CIA personnel and names of specific countries were redacted, which she contends was the main purpose of the agreements.35

To know whether these events were as unremarkable as Feinstein portrays them, it is necessary to look at the jurisdiction of the committee. If the committee had a right to these documents, then the agreement was just a courtesy and the committee was relatively free to break it, but if the committee only gained access to these documents by the agreement, then the committee would seem to have been bound to abide by those agreements.

Congressional oversight powers are not explicitly stated in the Constitution, but are interpreted in the Constitution’s “necessary and proper clause.”36 This

7 Bentley power is “inherent in the legislative process . . . It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.”37 Congress exercised this authority to set up the committee in 1976 with

Senate Resolution 400. Resolution 400 gave the committee jurisdiction over the

CIA, the intelligence activities of the State Department, the Department of Defense, and the FBI.38 The National Security Act of 1947 directs the President to keep the committee “fully and currently informed” of the intelligence activities of the United

States.39 Presidents and Congress have disagreed over exactly what this phrase means, with some presidents insisting that they only need to keep Congressional leadership and committee leadership fully informed; furthermore, it is unclear how detailed this provision requires the President to be in fulfilling his duty to keep the committee fully informed.40 However, the National Security Act of 1947 also says that nothing in the Act “shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information . . . would constitute the unauthorized disclosure of classified information.”41 Furthermore, Resolution 400 Section 11(b) directs that “any department or agency of the United States involved in any intelligence activities should furnish upon request any document or information which the department or agency has in its possession, custody, or control.”42 b. Presidential Authority Over National Security

Based on just this collection of statutory language, it would seem obvious that the committee is entitled to any information it needs from the CIA, whether classified or unclassified. However, where national security is concerned,

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Congress’s powers must be balanced with the role of the President as Commander in Chief. The President has the power to “promulgate and enforce executive regulations to protect the confidentiality necessary to carry out its responsibilities in . . .national defense.”43 The President’s ownership of national security issues certainly does not dispose of the interests of Congress in oversight; such a policy would render an intelligence oversight committee essentially worthless, since almost all matters under the jurisdiction of the intelligence committees relate to national security. However, these competing powers must be balanced.

An issue related to this arose in 1997 when the Clinton Administration was fighting an appropriations rider that said that no appropriations would be available to enforce non-disclosure agreements that failed to provide explicitly that “the right of employees . . . to furnish information to either House of Congress or to a committee or Member thereof, may not be interfered with or denied.”44 The Clinton

Administration believed that this was overly broad and could not constitutionally apply to information regarding national security.45 Michael Glennon argues that in this type of dispute, the President’s power is defined by the analysis in the Steel

Seizure Case, which said that when the President is acting incompatibly with the will of Congress, his power is at its lowest point, and such an action should be scrutinized with caution.46 In fact, “in no case touching on foreign relations or national security has the Supreme Court invalidated an act of Congress for the reason that it impinged upon the President’s sole power under the Constitution.”47

While these situations are not exactly the same, the analysis of the balance of

Congress’s right to information with the President’s role as Commander-in-Chief is

9 Bentley quite helpful. In the inquiry over the CIA interrogation documents, any national security interest seems relatively low (noting that all matters related to intelligence agencies relate in some way to national security). The detention and interrogation program was ended when President Obama first took office, and the general existence of the program had been known to the public for several years. The committee had standards in place for safely handling classified documents, so there was not a high risk of damaging information being leaked to the public.48

Furthermore, President Obama seemed to be supportive of the investigation, so it is unlikely that he would have raised a challenge based on his powers as commander in chief. Therefore, it seems likely that the committee had the legal right to these documents, and the agreements with the CIA were largely a courtesy to make the process seem more collaborative between the branches of government. c. Subpoena Power of the Committee

If, despite the committee’s apparent right to access the requested CIA documents, the CIA had still refused, the Committee had the clear statutory authority to subpoena the documents. Resolution 400 states, “Independent of [the provision on requests for information], the committee will, of course, have the usual subpoena power possessed by any standing committee of the Senate.”49 Typically, committees do not have to resort to subpoenas to get the information they need.50

But once a Congressional subpoena has been issued, it is very difficult for a served party to challenge. The standard for congressional investigation power is very low:

1) the committee’s investigation of the broad subject matter area must be authorized by Congress; 2) the investigation must be pursuant to a valid legislative

10 Bentley purpose; and 3) the specific inquiries must be pertinent to the broad subject matter areas which have been authorized by the Congress.”51 Furthermore, a court cannot enjoin the issuance of a congressional subpoena because the Speech or Debate

Clause of the Constitution forbids it.52 Therefore, the only real options are to comply with the subpoena, or to refuse, be cited for contempt, and challenge the validity of the subpoena as a defense in the contempt trial. d. The Committee’s Legal Right to the Documents

Given this statutory and constitutional background of these issues, it seems likely that the committee was legally entitled to the CIA documents, whether classified or unclassified, and the agreement between the committee and the CIA defining under what conditions the CIA would provide the documents was merely a courtesy of one branch of government to another. This is not to say that the committee could have easily obtained the documents without this agreement. Other practical considerations may have had an effect. For instance, the CIA could have destroyed or hidden incriminating evidence, as it had allegedly done previously with the videotapes of interrogations, or as it would later attempt to do with the

Panetta Review.

One sympathetic to the CIA could argue that even if the committee did have the power to theoretically subpoena these documents, they did not use that power, and they cannot just skip that procedural step and take classified documents from a federal agency without actually issuing a subpoena. However, this argument is not convincing. First, it underestimates the scope and power of the congressional investigative function. “The scope of [Congress’s] power of inquiry . . . is as

11 Bentley penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”53 Second, the CIA had arguably broken the agreement first by removing the committee staff’s access to the Panetta Review without telling anyone.

Finally, the committee’s interest in oversight far outweighs the CIA’s interests here, and as Senator Feinstein noted, there was reasonable cause to believe that the committee might lose this evidence permanently if they left it to the CIA.

In conclusion, it seems that the committee did nothing blatantly illegal by breaking the procedures described in their agreement with the CIA. However, it may have been bad policy. The separation of powers set forth in the Constitution is a delicate balance, particularly where national security concerns are implicated. In manners like this, the branches of government should work to cooperate, which is one of the reasons parties try to negotiate agreements like this, rather than immediately exercising subpoena power. However, the possibility of cooperation between the agency and the committee likely ended with the removal of access of the Panetta Review, before the committee staff ever clandestinely removed any documents from the CIA facility.

IV. Did the CIA Violate the Constitution or Other Laws in Its Investigative

Efforts Against the Senate Committee?

After Senator Feinstein learned that the CIA had performed a search on the committee staff’s computers at the facility where the investigation was being performed, she gave an impassioned speech on the Senate floor, in which she speculated that these actions had violated a number of constitutional provisions, as well as other laws, including the Speech or Debates clause, the Fourth amendment,

12 Bentley the Computer Fraud and Abuse Act, and Executive Order 12333.54 Although at the time of these remarks CIA director Brennan denied the allegations, after an internal agency investigation, the CIA admitted that Feinstein’s account of the events were accurate.55 Given the background information on the jurisdiction of this committee discussed in the previous section, it seems very likely that the CIA’s actions to obstruct the committee investigation at least violated Congress’s constitutional duty of oversight. But was Feinstein accurate in the other laws that she worried the CIA had broken? a. The Speech or Debates Clause

The Speech or Debates Clause is found in Article 1, Section 6 of the

Constitution and states in relevant part that members of both houses of Congress

“shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place. The first part of this clause is to protect members of Congress from the executive branch trying to arrest them on a pretext to prevent them from voting in a way the executive branch does not like. The second part of the clause is “to assure a co-equal branch of government freedom of speech . . . without intimidation or threats from the Executive Branch.”56 This protection also extends to congressional staff, as long as they are involved in legislative acts, for which a member of Congress would have also been protected.57

From this language it does seem likely that the CIA violated this constitutional clause in their search of committee computers. Gravel implies that if

13 Bentley the executive branch uses its investigative powers to intimidate the legislative branch in an effort to impinge upon their legislative speech, then this clause has been violated. Here, the CIA agents attempted to use their investigative powers to remove documents in order to make it impossible for the committee to speak on those documents. This violation applies directly to the committee staff because they were involved in legislative acts. Therefore, Feinstein was likely correct when she stated that the Speech or Debate Clause, at least in spirit, was violated by the search.

b. Fourth Amendment

The CIA’s search also likely violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. The committee staff clearly exhibited an expectation of privacy, and this expectation seems objectively reasonable, so this was a search under the Fourth Amendment.58 Furthermore, it is unclear what crime the CIA thought the committee had committed to provide a reasonable basis for the search. At this point, the only error the CIA was trying to correct was removing documents that it was responsible for handing over to the committee in the first place. Therefore, the Fourth Amendment was likely violated by the CIA search. c. Computer Fraud and Abuse Act

The first statute that Feinstein accused the CIA of potentially having violated was the Computer Fraud and Abuse Act (CFAA). Orin Kerr, an expert in computer crime law from George Washington University Law School, noted that while the statute has not yet been fully interpreted to answer Feinstein’s suggestion, it seems unlikely that the CIA violated the language of the statute.59 Kerr explains that the

CFAA is a “computer trespass statute,” that punishes a person who accesses a

14 Bentley computer without authorization from the owner or operator of the computer, and in violation of the access rights set by the owner or operator. In this case, the CIA technically owns the machines, but the committee staff was clearly their primary operator. Therefore, it is unclear which agency would be the primary owner/operator for purposes of the statute, and Kerr notes that there has been no case law on this question. The statute also includes an intent requirement, and it is unclear whether the CIA knew that they were violating this Act. If the CIA owned the computers, then its officers may have assumed they were within their rights, in which case the elements for a violation of the Act would not be satisfied.

It seems that the CIA probably did violate the “spirit” of the Act, but unlike the constitutional violations that Feinstein listed, the spirit of the act carries no weight in a technical statute. Therefore it seems unlikely that this statute was violated by the CIA. However, given the constitutional issues that the CIA’s action raise, it seems very likely that the CIA’s investigation of the committee staff included illegal acts. While the committee staff’s refusal to comply with the agreement between the two parties may have been an example of bad policy or bad etiquette between the branches of government, the CIA’s actions were much more legally problematic.

V. The President’s Proper Role in Declassifying the Report

After the committee voted to approve the report for declassification in

December 2012, it sent the report to the White House and CIA for review and comment before the committee could determine how much of the report to declassify.60 This began a two-year fight between the committee and the CIA with

15 Bentley the White House in the middle. The White House seemed reluctant at times to fully engage in this dispute, provoking some frustration from committee members. In

June 2013, four months after the CIA was supposed to submit comments on the report, the CIA finally submitted an official rebuttal, challenging the accuracy of facts in the committee report, and disputing the report’s main conclusion: that the detention and interrogation program provided the US with little valuable intelligence information.61 Senator Mark Udall alleged that in the CIA’s 122-page document claiming rampant factual errors in the committee report, the CIA only identified one factual error in its response to the committee, and this error had no impact on the conclusions of the report and was quickly corrected by the committee.62 Over the next few months, the conflict over the Panetta Review came to a climax, greatly slowing down the declassification negotiations. In March 2014,

Senator Udall sent a letter to the Obama Administration, expressing frustration with the Administration’s lack of public engagement in the declassification effort, and frustration that the CIA was not responding to Congress’s requests.63 This letter further requested a public statement from the White House on declassification of the committee study.64 On April 3, 2014, the committee voted 11-3 to declassify the executive summary of the report in a bipartisan vote, prompting President Obama to promise an expedited review of the report by the CIA and the White House.65

This led Senator Udall to send another letter to the President, requesting that the

White House lead the declassification review of the report, as the CIA had a “clear conflict of interest…and [a] demonstrated inability to face the truth about this program.”66

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The Obama Administration became more publicly involved in the substantive debate over what should be declassified in August 2014, when the Administration sent suggested redactions to the committee that the committee found unacceptable.67 Senator Feinstein stated that the “redactions eliminate or obscure key facts that support the report’s findings and conclusions.”68 One of the main objections to the Administration’s redactions was that the redactions removed from the report evidence that information about terrorist plots, which the detention and interrogation program had previously been credited for thwarting, had actually come from other intelligence methods. This evidence was crucial in supporting the committee’s overall finding that the interrogation and detention program was not effective in producing useful information. The dispute reached a climax in

November of 2014 when committee members met with White House Chief of Staff

Denis McDonough and threatened to take extraordinary measures to declassify the information without the Administration’s approval.69 By this point, the remaining issue of disagreement was whether the committee had to delete pseudonyms of CIA agents, which the Administration argued was crucial for these agents’ security.70

The Democrats’ sense of urgency was also growing, as they had just lost their majority in the Senate in the 2014 election, and the committee would be unlikely to push for declassification once it was in the hands of Republican members in 2015.

An agreement was finally reached, and the report was declassified on

December 9, 2014. The President said he had “consistently supported the declassification of today’s report,” which may have seemed like a dubious assertion to some committee members. This dispute between the committee and the White

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House raises two interesting questions about the President’s role in this process.

First, did the committee legally need the President to agree to declassification, or could they have declassified unilaterally? Second, what is the proper weight of the

President’s national security objections to declassification when those objections will substantively harm the committee’s findings? a. Legal Authority to Declassify Committee Report

From the beginning of the declassification process the senators on the committee seemed to treat the need for the President to sign off on the process as a given. In Senator Udall’s April 11, 2014 letter to President Obama, he stated that

Presidential leadership of the declassification review process was needed because the report “covers a covert action program under the authority of the president and the National Security Council.”71 However, the committee actually has the express statutory authority to declassify the information itself. Section 8 of Resolution 400 says that the committee may “disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such a disclosure.”72 The process laid out in the resolution is that when the majority of the committee members vote to declassify information and the executive branch resists, the full Senate can approve the declassification with a majority vote.73 However, after 40 years this provision has never been used.74 The last attempt to use it was made by former Senator Bob Graham in 2003 in an attempt to declassify portions of the inquiry into the September 11 terrorist attacks.75 Graham’s attempt was rejected by the committee, and later Graham explained, “I think it shows that there has been a strong deference to the executive

18 Bentley branch.”76 Kate Martin of the Center for National Security Studies argues that even if rarely used, this provision can be a valuable negotiating chip for the committee when the executive branch is stalling the declassification process, but that committee members in recent years have not used this negotiating tool effectively by reminding the executive branch that they have this power.77

Senator Udall followed this advice in November 2014 when negotiations seemed stalled by suggesting both to the press and in a meeting with the White

House that the committee would consider attempting to declassify the information through Section 8 of Resolution 400.78 This was likely a negotiation tactic rather than a serious threat because there was not broad consensus in Congress on the declassification of the report, and it would have required a majority vote of the full

Senate. While some Republicans voted for the declassification in committee, they did so reluctantly, and it is unlikely they would have supported pushing the declassification at the objection of the CIA. Another tactic that was reportedly considered by Democrats on the committee, particularly Udall, was to read the report into the record on the Senate floor, protected by the Speech or Debate clause.79 Senator Gravel had used this tactic to enter portions of the Pentagon

Papers into the record in 1971.80

Ultimately such tactics were not necessary. It is impossible to know whether these threats encouraged the Administration to reach an agreement with the committee. Answering the question of the committee’s legal basis to declassify information without the approval of the President, it seems clear that there are legal methods of doing so, although they may be unlikely to succeed in the current era of

19 Bentley partisan gridlock in Congress. Furthermore, the committee has been rightly reluctant to use these legal powers. While congressional oversight is a crucial function, it must be appropriately balanced with the President’s national security duties, and that proper balance is struck through cooperation between the branches. b. Appropriate Scope of the President’s Review

If the basis for allowing the President approval of the declassification process is his constitutional duty to protect national security, then the scope of his review should be limited to matters that truly implicate national security risks and are not a pretext to shield executive agencies from criticism. If his scope of review is not limited in this way, then the Administration could effectively thwart the purpose of the oversight process. This analysis becomes more difficult when the President asserts plausibly that information needs to remain classified for national security purposes, but this information is substantively necessary to prove findings of the report, particularly where those findings are critical of an agency under the committee’s jurisdiction.

These considerations were immediately relevant to the negotiations between the committee and the Administration over what information in the report to declassify. There were two major categories of disagreement between the

Administration and the committee: 1) evidence that showed that the CIA had exaggerated the effectiveness of the interrogation program by explaining how other types of intelligence gathering had led to the achievements the CIA claimed for the

20 Bentley program; 2) The use of pseudonyms to describe narratives of specific CIA agents’ activities.

Toward the first category, the administration’s case for vetoing the declassification of this information seems weak. Without an explanation that other sources of information were actually responsible for the intelligence victories attributed to the detention and interrogation program, the committee loses the ability to fully explain why this program is no longer necessary. This may have curbed the committee’s ability to advocate for how the intelligence community should change in the future, a key legislative function of the committee.

Furthermore, this information was embarrassing to the agency because it demonstrated that the agency exaggerated the success of its own program in certain instances. Therefore, there was a high risk that the Administration’s interests were not with national security, but with preserving the image of the CIA.

The Administration and the CIA could of course argue that there was a national security interest in not disclosing the forms of intelligence gathering that were actually responsible for these successes because they may cease to be effective if they are public. However, this seems incredibly disingenuous when the CIA still claims that the report’s overall conclusion was wrong, and that the detention and interrogation program had, in fact, been effective.

The pseudonym disagreement is a more difficult case, and it may be impossible to make a judgment without knowing more details about the classified information. The CIA and the committee had agreed to pseudonyms for CIA agents, in order for the report to protect the identities of the agents, while still providing

21 Bentley cohesive narratives of individual agents’ activities. Reportedly, the CIA believed these narratives would make it too possible to identify these agents, even without their real names, and wanted the committee to only describe the activities without pseudonyms for the individuals involved.81 However, the committee argued that it was relevant to describe how many of the same people committed abuses and were not punished but actually promoted.82

This situation is difficult because the security of agents is clearly an extremely important interest of the CIA, as well as an interest of the President, as

Commander in Chief. However, the pseudonym system was originally created by the CIA, so it is possible they thought the system was perfectly safe, and they were more worried about the institutional embarrassment of showing how agents who repeatedly abused the program faced no consequences. In such a case, the committee should be vigilant in verifying that the national security concerns of the

President are genuine, and offer to mitigate any risks possible. Furthermore, the

President must be cooperative with the committee to make sure he only objects to declassification in the most narrow way possible to protect genuine national security interests without damaging the substantive findings of the report.

V. Conclusion

The negotiations between the Senate Select Committee on Intelligence and the CIA and the Obama Administration over access to the Panetta Review and declassification of committee report demonstrate that the intelligence oversight process could certainly be improved. After the conclusion of the report, Senator

Feinstein released recommendations based on the report, including prohibiting the

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Intelligence Community from restricting any information from the committee other than time-sensitive operational details of covert action programs. This was clearly targeted at the CIA’s handling of the Panetta Review. Feinstein’s recommendations also included that there should be a formal declassification process to declassify information more quickly when requested by Congress.

While Feinstein’s frustrations with the system as it occurred here are certainly understandable, perhaps the messiness of the process is a natural result of the necessary balancing of interests taking place here. Much of the law around the questions presented in this paper is uncertain, and that is likely a result of Congress and the President choosing to participate in a cooperative process, rather than resorting to subpoenas and archaic declassification procedures. Where sensitive intelligence information is involved, it is crucial to make every effort to fully satisfy both Congress’s interest in effective Congressional oversight and the President’s interest in protecting national security. Perhaps this goal is most easily achieved where a formal process does not automatically dictate issues that should instead be decided through an extensive collaborative, and at times adversarial, discussion between two equal branches of government.

1 Greg Miller, Adam Goldman, & Julie Tate, Senate Report on CIA Program Details 2 Timeline History of the CIA Detention and interrogation Program, L.A. Times (Dec. 9, 2014), http://www.latimes.com/nation/la-na-timeline-of-cia-interrogation- program-20141209-story.html#page=1. 3 S. Select Comm. on Intelligence, 113th Cong., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (2014).

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4 Press Release, Sen. Dianne Feinstein, Feinstein, Bond Announce Intelligence Committee Review of CIA Detention and Interrogation Program (March 5, 2009), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=d882ff87- 5056-8059-763f-e15d555d5f89. 5 Id. 6 Press Release, Sen. Dianne Feinstein, Statement on Intel Committee’s CIA Detention, Interrogation Report (March 11, 2014), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=db84e844- 01bb-4eb6-b318-31486374a895. 7 Peter Finn, GOP Senators Drop Out of Panel Inquiry Into CIA Program, Wash. Post (Sep. 26, 2009). 8 David Johnston & Charlie Savage, Obama Reluctant to Look Into Bush Programs, N.Y. Times (Jan. 11, 2009). 9 Mark Mazzetti & Scott Shane, Interrogation Memos Detail Harsh Tactics by the CIA, N.Y. Times (April 16, 2009). 10 Letter from Senator Dianne Feinstein to President Barack Obama (April 20, 2009), http://www.feinstein.senate.gov/public/index.cfm/textonly/press- releases?ID=c8e4ceb8-5056-8059-7617-2fc6d556e11e. 11 Press Release, Dep’t of Justice, Attorney General Eric Holder Regarding a Preliminary Review Into the Interrogation of Certain Detainees (Aug. 24, 2009), http://www.justice.gov/opa/speech/attorney-general-eric-holder-regarding- preliminary-review-interrogation-certain-detainees. 12 Finn, supra note 7. 13 Id. 14 Sen. Diane Feinstein, supra note 6. 15 See id. 16 Id. 17 Id. 18 Id. 19 Mark Mazzetti, C.I.A. Report found Value of Brutal Interrogation Was Inflated, N.Y. Times (Jan. 20, 2015). 20 Sen. Dianne Feinstein, supra note 6. 21 Id. 22 Scott Shane, Senate Panel Approves Findings Critical of Detainee Interrogations, N.Y. Times (Dec. 13, 2012). 23 Greg Miller & Julie Tate, CIA Report Refutes Senate Panel’s Criticism of Agency’s Harsh Interrogation Methods, Wash. Post (June 26, 2013). 24 Sen. Dianne Feinstein, supra note 6. 25 See id. 26 See id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id.

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32 Mark Hosenball, FBI evaluating complaints about hacking by CIA, Senate panel: sources, Reuters (Mar 18, 2014), http://www.reuters.com/article/2014/03/18/us- usa-senate-cia-idUSBREA2H25W20140318 33 Greg Miller, Senate, CIA Clash Over Redactions in Interrogation Report, Wash. Post (Aug. 5, 2014). 34 Sen. Dianne Feinstein, supra note 6. 35 Id. 36 U.S. Const. art. I, § 8, cl. 18. 37 Watkins v. United States, 354 U.S. 178 (1957). 38 S. Comm. on Gov’t Operations, Senate Committee on Intelligence Activities, S. Rep. No. 94-675 (1976), http://www.intelligence.senate.gov/pdfs_miscellaneous/94675.pdf. 39 National Security Act of 1947, 50 U.S.C. §401. 40 Eric Rosenbach, Congressional Oversight of the Intelligence Community (July 2009), http://belfercenter.ksg.harvard.edu/publication/19146/congressional_oversight_of _the_intelligence_community.html. 41 National Security Act of 1947, supra note 39. 42 S. Comm. on Gov’t Operations, supra note 38. 43 New York Times Co. v. United States 403 U.S. 713 (1971). 44 Michael J. Glennon, Congressional Access to Classified Information, 16 Berkeley J. Int’l L. 1, (1998). 45 Id. 46 Id. 47 Id. 48 S. Select Comm. on Intelligence, Rules of Procedure, S. Prt. 112-14 (2011) http://www.intelligence.senate.gov/pdfs/11214.pdf. 49 S. Comm. on Gov’t Operations, supra note 38. 50 Louis Fisher, Cong. Research Serv., RL31836, Congressional Investigations: Subpoenas and Contempt Power (2003). 51 Wilkinson v. United States, 365 U.S. 399 (1961). 52 Eastland v. U.S. Servicemen’s Fund 421 U.S. 491, (1975). 53 Id. 54 Sen. Dianne Feinstein, supra note 6. 55 Jonathan S. Landay & Ali Watkins, CIA Admits it Broke into Senate Computers; Senators Call for Spy Chief’s Ouster, McClatchy, (July 31, 2014), http://www.mcclatchydc.com/2014/07/31/234997/cia-staffers-accessed- senate.html. 56 Gravel v. United States, 408 U.S. 606 (1972). 57 Id. 58 Kats v. United States, 389 U.S. 347 (1967). 59 Orkin Kerr, Did the CIA Violate the Computer Fraud and Abuse Act by Accessing Intelligence Committee Computers, (March 12, 2014), http://www.lawfareblog.com/2014/03/did-the-cia-violate-the-computer-fraud- and-abuse-act-by-accessing-intelligence-committee-computers/. 60 Id.

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61 Mark Mazzetti, C.I.A. Employees Face New Inquiry Amid Clashes on Detention Program, N.Y. Times (March 4, 2014). 62 Mark Udall, Additional Views To the Executive Summary of the Committee Study on the CIA’s Detention and interrogation Program (June 9, 2014), http://www.intelligence.senate.gov/study2014/udall.pdf. 63 Letter from Sen. Mark Udall to President Barack Obama, (March 4, 2014), http://www.scribd.com/doc/210597656/Udall-Challenges-White-House-to- Support-Fullest-Possible-Declassification-of-Intelligence-Committee-s-Torture- Study. 64 Id. 65 David S. Joachim, Senate Panel Votes to Reveal Report on C.I.A. Interrogations, N.Y. Times (April 3, 2014). 66 Letter from Sen. Mark Udall to President Barack Obama (April 11, 2014), http://www.scribd.com/doc/217703497/Udall-Letter-to-White-House- Concerning-CIA-s-Role-in-Declassification-of-U-S-Senate-Select-Committee-on- Intelligence-s-Study-of-the-Agency-s-Detentio. 67 Miller, supra note 33. 68 Id. 69 Mark Mazzetti and Carl Hulse, Senate Democrats Clash with White House on C.I.A. Torture Report, N.Y. Times (Nov. 20, 2014). 70 Id. 71 Udall, Supra note 66. 72 Ali Watkins, Senate Intelligence Panel Could Seek to Declassify Documents; It Just Doesn’t, McClatchy (Aug. 12, 2013), http://www.mcclatchydc.com/2013/08/12/199122/senate-intelligence-panel- could.html#.UgpNrUomxJN. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. 78 Mazzetti, supra note 69. 79 Id. 80 Id. 81 Id. 82 Id.