Mike Masnick
Tech Dirt
March 12, 2014

Yesterday, after Dianne Feinstein went public with the details of the CIA spying on Senate Intelligence Committee staffers who were compiling a supposedly “devastating” report on the CIA’s torture program, CIA Director John Brennan (who has been fighting hard against the release of the report) gave a non-denial denial. Later, he sent an “unclassified” memo to all CIA staffers which is being reported as an attempt to boost morale within the Agency.

However, along with that letter to staff, Brennan also (and more importantly) released his January letter to Feinstein following the in-person meeting the two had had concerning the spying allegations. This document is really Brennan trying to tell spin his side of the story. In his telling, this is entirely about the CIA’s belief that there had been a security leak. Brennan notes that Feinstein had asked him to provide the full internal “Panetta review” of the same documents that the CIA had handed over to the Senate staffers, and which we now know more or less confirms their findings (and shows that the CIA — Brennan in particular — likely lied to the Senate in response to the Senate report). However, later comments from the Senate Intelligence Committee (Mark Udall in particular) made Brennan and others recognize that the Committee had already seen the report (they hadn’t — they’d seen a draft of it) and the CIA didn’t believe that was appropriate, leading (he claims) to the search of the Intelligence Committee’s walled off network to try to figure out how the “security breach” had happened.

As I relayed to you and Vice Chairman Chambliss during our I5 January meeting, I recently received information suggesting that sensitive CIA documents that were the subject of a pending request from the Committee may have been improperly obtained and/or retained on the SSCI staff side of a CIA local area network, which was set up exclusively for the Committee’s RDI review and which contains highly classified information. Consequently, I asked for a meeting with you and the Vice Chairman as soon as possible to share that information and to discuss the need for a review of the system in order to assess what happened. As we know, both branches have taken great care to establish an accommodation regarding the Committee’s access to Executive branch information on the RDI program, and we need to ensure that what is shared is as agreed between the branches. At the same time, and most importantly, if the integrity of our network is flawed, we must address the security problem immediately.

During our 15 January meeting, I explained how it came to our attention that these documents were on the SSCI staff side of the network. As I indicated, recent statements made by Committee staff suggested they had in their possession a document that you requested in a 26 November 2013 letter. In your correspondence, you asked for “several summary documents” from what you termed an “internal review” of the CIA RDI program initiated by Director Panetta that purportedly came to conclusions similar to those contained in the Committee’s study on the RDI program. Senator Udall made a similar reference to, and a request for, these materials during the open hearing on Caroline Krass’s nomination to be the CIA’s General Counsel. Senator Udall repeated his request for these documents in a 6 January 2014 letter that he wrote to the President. In response, I explained to both you and Senator Udall that these requests raised significant Executive branch confidentiality interests and outlined the reasons why we could not turn over sensitive, deliberative, pre-decisional CIA material. These documents were not created as part of the program that is the subject of the Committee’s oversight, but rather were written in connection with the CIA’s response to the oversight inquiry. They include a banner making clear that they are privileged, deliberative, pre-decisional CIA documents, to include attorney- client and attorney work product. The Executive branch has long had substantial separation of powers concerns about congressional access to this kind of material.

CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and reviewed audit data to determine whether anyone had accessed the files, which would have been unauthorized. The technical personnel conducting the audit review were asked to undertake it only if it could be done without searching audit data relating to other files on the SSCI side of CIA’s network. That review by IT personnel determined that the documents that you and Senator Udall were requesting appeared to already be on the SSCI staff side of CIA’s local area network and had been accessed by staff. Only completion of the security review will answer how SSCI staff came into possession of the documents. After sharing this information with you and explaining that I did not know how the materials would have appeared on the SSCI staff side of the network, I requested that you return any copies of these highly sensitive CIA documents located either in the Committee reading room at the CIA facility or in the Committee’s own offices. You instructed your staff director to collect and provide to you any copies of the documents. I informed you that I had directed CIA staff to suspend any further inquiry into this matter until I could speak with you.

Of course, as Feinstein pointed out in her speech, the document which Brennan seems to think the Senate staffers must have grabbed illegally was actually given to them directly by the CIA. And, to be clear, this letter actually more or less confirms what Feinstein claimed despite Brennan’s bogus denial. The specific issue was that Brennan had the CIA scan the Senate staffer’s supposedly private network to determine if they had access to this document in the CIA’s supposed search for a security breach. Here’s the key admission:

Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and reviewed audit data to determine whether anyone had accessed the files, which would have been unauthorized.

While Brennan is arguing that this is all perfectly reasonable in search of the security breach the CIA believed had occurred, that’s not even close to accurate. Given the role of the Senate Intelligence Committee, being in charge of oversight of the CIA, and more specifically, these staffers directly investigating the CIA’s torture program and producing a report highly critical of the CIA, Brennan had to know that any search of the staffers’ network would be a massive breach. His attempt to cover it all up and make it sound reasonable actually does the opposite. If Brennan was truly concerned, it seems that the appropriate move would have been to have gone to Feinstein before conducting that search and raising his concerns.

Meanwhile, many in the press are parroting the false claim that Brennan denied Feinstein’s accusations, when his actual words confirm it.

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