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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.
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