CIA Admits to Spying on Senate but No Prosecutions to Follow

Jonathan S. Landay is a national security and intelligence reporter for McClatchy Newspapers, based in Washington, D.C

Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law. Before joining the Brennan Center, Liza served as counsel to Senator Russell Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee, and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. Her writing has been featured in major newspapers including the New York Times, the Wall Street Journal, the Washington Post, USA Today, the Boston Globe, the San Francisco Chronicle, and the Philadelphia Inquirer, as well as prominent outlets such as Roll Call, the National Law Journal, Salon, POLITICO, Time, and the Huffington Post. She has appeared on national television and radio shows including the The Rachel Maddow Show, The Today Show, All In with Chris Hayes, Up with Steve Kornacki, PBS NewsHour, and National Public Radio’s Morning Edition and On The Media. Liza graduated from Yale Law School and clerked for the Hon. Michael Daly Hawkins on the Court of Appeals for the Ninth Circuit.

TRANSCRIPT:

JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

Remember those allegations back in March that the CIA had broken into Senate staffers’ computers to investigate Bush-era interrogation practices? CIA Director John Brennan denied that the CIA was spying on Congress. Let’s take a look at what he had to say then.

JOHN BRENNAN, DIRECTOR, CENTRAL INTELLIGENCE AGENCY: As far as the allegations of CIA hacking into Senate computers, nothing could be further from the truth. I mean, we wouldn’t do that.

DESVARIEUX: They wouldn’t do that, but it turns out that they did. The CIA’s inspector general released a report confirming that three of the agency’s information technology specialists and two CIA lawyers spied on the computers and communications of the Senate Intelligence Committee.

Some senators have called for Brennan to resign, but President Obama is standing by his CIA director. This is what the president had to say at a press conference in August 1.

BARACK OBAMA, U.S. PRESIDENT: I have full confidence in John Brennan. I think he has acknowledged and directly apologized to Senator Feinstein that CIA personnel did not properly handle an investigation as to how certain documents that were not authorized to be released to the Senate staff got somehow into the hands of the Senate staff. And it’s clear from the IG report that some very poor judgment was shown in terms of how that was handled. Keep in mind, though, that John Brennan was the person who called for the IG report, and he’s already stood up a task force to make sure that lessons are learned and mistakes are resolved.

DESVARIEUX: Now joining us to discuss those mistakes and the significance of the inspector general’s report are our two guests.

Joining us from New York is Elizabeth Goitein. She’s the codirector of the Liberty and National Security Program at the Brennan Center for Justice at New York University Law School.

And also joining us, from D.C., is Jonathan Landay. He’s a senior national security and intelligence reporter for McClatchy newspapers.

Thank you both for joining us.

JONATHAN LANDAY, NATIONAL SECURITY AND INTELLIGENCE REPORTER, MCCLATCHY: Hi.

DESVARIEUX: So, Jonathan, let’s start off with you. Remind our viewers why Senator Feinstein came out denouncing the CIA’s spying on her staff, because she’s more or less been rubberstamping everything that the intelligence community has been doing. So why did she decide to go after them?

LANDAY: Well, this apparently was a major red line for her, having to do with the Constitution, the constitutional separation of powers between the executive and its congressional overseers, as well as, she said in March, a potential violation of the law, one of those laws probably being the Computer Fraud Act. What she was angry about was initially denied by CIA Director Brennan, and that was that contrary to an agreement that had been brought, an agreement between her committee and the CIA, there was a protected database on this system that the CIA required the committee staff to use in compiling its report in a top-secret CIA facility somewhere in Northern Virginia. The allegation that Senator Feinstein made in March was that the CIA had in fact penetrated this database and had the monitored the documents that her staff was putting into that database, and in fact had on several occasions not just blocked access to documents that had already been put in that database, but also removed documents that had been put in that database. An investigation was launched by the CIA inspector general based on these allegations, and what we came to know last week was that the inspector general had in fact, apparently, confirmed what Senator Feinstein had alleged, that CIA personnel, contrary to the agreement that they had with—the CIA had with committee, had in fact penetrated this database.

DESVARIEUX: This sounds like a huge deal, to say the least. Elizabeth, the last time you were on the program, you mentioned that if Senator Feinstein’s accusations were actually right, that this is “a crisis of constitutional proportions”. Give us a sense of where this stands. Will we see some criminal wrongdoing by the CIA? Will we actually see them being prosecuted?

ELIZABETH GOITEIN, CODIR., BRENNAN CENTER LIBERTY AND NATIONAL SECURITY PROGRAM: Well, you’ve asked two different questions, whether there’s criminal wrongdoing and whether there’ll be prosecutions. I think what I said before. I stand by it. I think this is a crisis of constitutional proportions. These actions by the CIA do violate the separation of powers, which is sort of the foundation of checks and balances in our Constitution. It’s possible they also violate the Fourth Amendment. It’s possible they violate the Speech or Debate Clause. It’s also possible that they violate the Computer Fraud Act. So we are talking about a number of fairly serious potential legal violations.

However, the Justice Department has already looked into allegations of wrongdoing by the CIA and has declined prosecution, and presumably the Justice Department had access to the same information that the inspector general had access to. So I think this is going to play itself out in politics and not in the courtroom would be my prediction.

DESVARIEUX: Yeah. And there’s also news of a long-awaited report by the Senate Select Committee on Intelligence, portions of which they say that they’re going to declassify. Jonathan, what’s the significance of this report? Give us an update.

LANDAY: Well, I mean, the significance is it is probably the most intense congressional inquiry into CIA activities at least since the Iran Contra scandal. And we already know what the broad findings of the committee are, and that would be that the CIA oversold what it obtained through the use of harsh interrogation techniques like waterboarding, wall-slamming, and other methods that a lot of experts have deemed to be torture, that the CIA misrepresented the intelligence that it obtained from these methods to both the White House and Congress and the American people. And there are a bunch of other conclusions that go along with that, a list of 20 (we obtained them several months ago)—that the CIA planted misleading information in the media about the efficacy of these procedures, that the CIA didn’t keep track of the number of detainees that it subjected to these procedures, that in fact the CIA mistakenly, it appears, detained or rendered—which is, essentially kidnapped—the wrong people, and something like about 26 of them who had no business being interrogated by the CIA, let alone being— renderedis the official word.

And so we’re going to have to wait and see how much of the report we get to see. It’s a more than 6,000 page report. It took about five years and $40 million to put together. The committee, Senator Feinstein intends to release a executive summary. That will be accompanied by a report by the Republican minority on the committee. And along with both of those we will get a CIA rebuttal. All of that has been undergoing declassification. That was completed on Friday and sent by the White House, which also got a chop on this and oversaw the declassification process. They sent the executive summary, conclusions, and findings, and the other two documents back to the committee, and only a few hours later Senator Feinstein put out a statement complaining that there had been excessive redactions, that essentially parts of the—what she felt—the CIA and the administration excessively censored the executive summary.

And now we’re going to have to wait to see when in fact those documents will be released, because it may be now that the committee has to open negotiations with the CIA and the administration, with General Clapper, who is James Clapper, who is the director of national intelligence, and the White House over how many of those redactions remain. The CIA came back—or I should say, General Clapper came back after Senator Feinstein’s statement late Friday night to say in fact that 85 percent of the executive summary remains unredacted and that half the redactions that were done were done to footnotes in the executive summary. So the bottom line of all of this is we may end up having to wait longer than we were going to have to to see this report.

DESVARIEUX: Yeah. And this redacted report—and I want to get your take on this, Elizabeth—why are we only going to see portions of this? What are they afraid of exposing?

GOITEIN: Well, that’s an excellent question. I mean, there should be no national security justification at this point to redacting—I mean, certainly you can understand how maybe the names of low-level officials might be redacted or that sort of thing. But in terms of the techniques that we’re talking about, I mean, these are techniques that have been discontinued, that we’ve been assured will never happen again because they were torture. And so the original national security justification for not disclosing them in the first place back in 2002 was that our enemies would be able to train themselves to resist these techniques. Well, that should be at this point absolutely moot. So it’s hard to imagine the national security justification.

I think that this report must be extremely—well, by all accounts it’s extremely powerful. And my guess is that it just demolishes the narrative that has been built about torture over the last few years, which is that this was a sort of an aberration in which some very well-meaning people under very carefully controlled circumstances maybe went a little too far, but they did it for good reasons and they were getting good intelligence. And from reports—obviously I have not seen this report, but from some early reports and from some of the things that have been said by the reports’ authors, the abuse was much more brutal, much more widespread and systematic than has been reported. The CIA and intelligence officials were lying about its effectiveness. It wasn’t effective. And yet they were deceiving Congress into thinking it was more effective. And that this was really not the sort of little blip on the scale that I think the government would have us believe.

DESVARIEUX: Yeah. And Jonathan, you also wrote a piece about how the CIA is monitoring emails between Congress and officials who are supposed to be protecting whistleblowers. What is really going on here? What is the larger trend that we’re seeing in the government?

LANDAY: Well, we didn’t say that the CIA is monitoring emails between people in—the whistleblowers and Congress. What we did say was the CIA came up with an email, apparently, they may be monitoring that was being sent from a very senior official within the intelligence community whose job it is is to listen to whistleblowers and to note what they have to say about internal fraud and abuse and wrongdoing and communicate with people on the Hill who are interested in tracking this subject as well. Somehow the CIA inspector general, David Buckley, came up with this particular email. He happens to be the subject of the email, the email, we were told, complaining that Mr. Buckley had failed to pursue aggressively allegations that CIA officers who had cooperated with the Senate committee on their report had been retaliated against by the CIA. This email was then brought to the attention of—Mr. Buckley brought this email to the attention of the man who has overall jurisdiction over the inspectors general of the entire intelligence community. And the fact that people on the Hill found out about it has created these concerns that in fact the CIA was monitoring such emails.

Now, the larger piece of this is that a couple of years ago, after the leaks by WikiLeaks of classified information, and then Edward Snowden, President Obama launched an initiative called the Insider Threat Program. And what this does, what is the aim of this program, is to head off and prevent and detect unauthorized leaks of information by government departments. And I say information, not just classified information, but unauthorized leaks of any information. It’s a very broad directive. And government departments who have access to classified information are sort of given the wherewithal to be able to interpret just how much of this they’re allowed to—just the breadth of what they’re being told to do. And some departments have been extremely, extremely aggressive.

Now, the head of, the director of national intelligence, James Clapper, has said that he wants—as part of this, he wants to institute what he calls “continuous evaluation” of the communications of every federal public servant who has a classified clearance, who has access to top-secret information. And as part of this, it appears that emails are—these communications, including emails, are being tracked via—we are not sure how—keywords, some other kind of factors. We don’t know what they are. But we do know that there is no—at this point, as far as we can tell, no algorithm that’s been developed that can differentiate between emails sent with regard to whistleblower matters, which is supposed to be highly confidential, and other emails. And so it may well be that this email that Mr. Buckley came up with was popped up because of the fact that there are no filters to discriminate between whistleblower emails, which are supposed to be confidential, and ordinary emails.

DESVARIEUX: Alright. Jonathan Landay as well as Elizabeth Goitein, thank you both for joining us.

LANDAY: Thank you.

GOITEIN: My pleasure. Thanks.

DESVARIEUX: And thank you for joining us on The Real News Network.