Feinstein vs. CIA

The Senator vs. The C.I.A.

Steve Coll

The New Yorker

March 24, 2014 print edition

In the vestibule of Room 211 of the Hart Senate Office Building, just to the north of the Capitol, a cop guards an inner door that requires a numerical code to open it. The room, where the staff of the Senate Select Committee on Intelligence sits, is called a “skiff,” for “sensitive compartmented information facility.” Last week, Senator Dianne Feinstein, the committee’s chair, described secret documents that are now apparently stored in the office. She did so publicly, during a remarkable jeremiad on the Senate floor, which was part “Homeland” treatment, part grand-jury instruction. She recounted several years of maneuvering between the committee staff and the C.I.A., before announcing “grave concerns” that agency officers had broken the law and violated the Constitution during a struggle over the documents.

Feinstein called them the Panetta Review, in reference to the former C.I.A. director Leon Panetta, who left the agency in 2011. The documents were prepared by C.I.A. officers, and although their contents are secret, their subject matter is clear and vitally important: the true history of the brutal interrogation of about a hundred Al Qaeda leaders and suspects at offshore C.I.A. “black sites” between roughly 2002 and 2006, on orders of the Bush Administration. The interrogations included the use of “enhanced interrogation techniques,” such as waterboarding, which constituted torture in the judgment of the Red Cross and many other authorities. Feinstein suggested that the Panetta Review may illuminate still disputed issues; namely, whether the program produced significant intelligence, whether the C.I.A. lied to Congress about it, and how cruel and degrading the black sites really were.

Barack Obama ended the program on his second day in office, in 2009, denouncing it as torture. Yet he also signalled that he would not hold the C.I.A. or its career officers accountable for the past. Moreover, he decided to advance the C.I.A.’s role in counterterrorism, which complicated the options for examining the interrogation program. The C.I.A.’s Counterterrorism Center ran the sites. It also managed the agency’s drone program and the hunt for Osama bin Laden. Obama called its officers into action, ordering drone strikes in Pakistan and encouraging the agency to finally find bin Laden, which it did, in 2011. For the President to have investigated some of the same personnel for past complicity in torture would have been awkward.

Feinstein has endorsed Obama’s muscular counterterrorism policy, at some cost to her reputation among civil libertarians. Lately, she has also been criticized for defending the legality of the National Security Agency surveillance exposed by Edward Snowden. Her critics may detect a reputation-reviving opportunism in her recent dudgeon toward the C.I.A. But it was under Feinstein, after 2009, that the Select Committee took on an ambitious investigation into the defunct black sites. Senate investigators worked in a skiff near C.I.A. headquarters, in Virginia. Under a protocol that Feinstein described last week, the agency provided a segregated computer network and loaded in some six million pages of classified documents. Several times, by Feinstein’s account, C.I.A. officers secretly withdrew documents from the Senate staff’s collection. When they were caught, she said, they claimed, falsely, that the White House had ordered their action. The agency later apologized.

One of the questions that the committee explored was whether torture worked—that is, whether it produced exclusive intelligence that saved innocent lives. Even if it did, it would be wrong as policy, because it is immoral; but during the investigation former C.I.A. leaders said that the interrogations had proved very valuable and would withstand history’s judgment. Many Americans still think that such claims might be true, but they have no way to evaluate them, since the facts on which they are purportedly based remain highly classified.

In 2012, after three years’ work, the Senate staff completed a six-thousand-three-hundred-page report. It, too, remains classified. According to press stories and statements by Feinstein and other senators, the first draft concluded that C.I.A. and Bush Administration officials had greatly overstated the interrogations’ role in generating useful intelligence, and that the C.I.A. had seriously misled Congress as well. Feinstein showed the draft to the agency. The C.I.A. objected, as the current director, John Brennan, said last week, to “factual errors” and “errors in judgment or assessments.” The two sides have been arguing for months about what the report should say.

The Panetta Review figures in all this because it may influence the final report’s conclusions. C.I.A. officers apparently composed the review after reading the same documents that Feinstein’s staff studied. According to Feinstein, the officers also reached some of the same judgments, and acknowledged “significant C.I.A. wrongdoing”—a form of dissent, she implies, that agency superiors have overruled or suppressed. At some point after last June, Senate investigators removed printed copies of parts of the Panetta Review from the skiff in Virginia and took them to Capitol Hill, without telling the C.I.A. The agency, conducting electronic searches on the segregated computers to examine how the files had been handled, found what its lawyers believed to be evidence of criminality, implicating Senate investigators, and referred it to the Justice Department. Last week, Feinstein replied to the accusations, and, by the standards of Washington scandal instigation, she delivered a full Monty. She said that the C.I.A., in searching her staff’s computers, might have “violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the C.I.A. from conducting domestic searches or surveillance.” C.I.A. leaders prove their mettle inside the agency by defending career officers against congressional second-guessing. Brennan, who advised Obama on counterterrorism for four years, is an agency veteran; it would not be surprising if he had authorized resistance to the Senate investigation. But it is hard to fathom how he could have so lost control of surveillance practices or so mismanaged negotiations with Feinstein that she would launch such a rare broadside.

Regrettably, the imbroglio may draw the media and the public into complex details of a Washington procedural, in which, as in a “House of Cards” plot, there is presumed to be no moral center. There is one here, however. It concerns the soundness of American representative government. Can the C.I.A., after a decade of fat budgets and swaggering prerogative, adjust to emboldened congressional oversight? Can Congress provide such oversight? And can the American people at last have the facts about the Bush Administration’s embrace of torture as national policy, carried out in their name? ♦