The standoff between the CIA and the Senate Intelligence Committee at its core is a battle over who owns the official history of one of the darkest eras in American spying — the brutal interrogations of al-Qaida prisoners in “black site” prisons abroad. The rift has bared long-standing institutional failures and simmering tensions between the executive branch and Congress.
In the days after committee chairwoman Sen. Dianne Feinstein accused the CIA of intimidation and breaching its constitutional authority by filing a criminal complaint against congressional aides, observers say the U.S. intelligence community and its congressional minders both made serious missteps over the 13 years following the 9/11 terror attacks.
To intelligence veterans, legislators and historians, key lapses stand out: Congress’ hesitance in the immediate aftermath of the attacks to hold the intelligence community and Bush administration accountable. The CIA’s over-reaction and failure to navigate rising doubts in Congress. Hidden clashes between Senate investigators and CIA briefers. President Barack Obama’s distance from the growing controversy as relations deteriorated. And the government’s sluggishness in adapting to the American public’s easing national security fears.
“Sad to say, this is bad for all concerned,” said former CIA Director Michael Hayden, who himself contended with fallout from waterboarding suspected terror leaders and the later destruction of CIA videotapes documenting it.
The unprecedented criminal filing under CIA Director John Brennan to the Justice Department and the senator’s response were sparked by a succession of increasingly hostile interchanges between Senate investigators and their agency contacts over the committee’s long-overdue report on harsh interrogations. At issue is the report’s stark conclusion that use of coercive questioning amounted to torture and led to little intelligence of value. The CIA’s own 2013 response to the unreleased study countered that while abuses occurred, harsh questioning produced important intelligence leads.
Senate aides reviewing classified computer files overseen by the agency have complained CIA officials withdrew hundreds of internal documents without explanation and in recent months said the CIA monitored their searches. CIA officials blamed Senate aides for improperly accessing and mishandling classified files. Both sides claimed laws were broken.
Brennan warned Feinstein, a Democrat from California, in a January letter of a security “breach or vulnerability” caused by Senate aides. Responding to Brennan’s move to bring in FBI investigators, Feinstein accused the CIA “a potential effort to intimidate this staff.” The White House acknowledged administration lawyers were warned by top CIA officials about their plans to file the complaint, but Obama, asking for patience, did not publicly intervene.
Last week’s eruption is only the latest breakdown in a relationship between Congress and the CIA that is at best strained and at times seems like covert warfare. Even when congressional leaders backed decisions under the Bush administration to imprison and harass terror suspects, their deference was often shaped more by al-Qaida’s existential threat than by their political and personal leanings.
“There’s no question that Congress was willing to allow the intelligence agencies to do whatever they saw fit without raising hard questions,” said David M. Barrett, a Villanova University historian. “For Democrats and even some Republicans who might have shown some resistance, it took more than a decade for them to flex their oversight role.”
Some historians question whether Congress deserves any role. Stephen F. Knott, an expert in intelligence and the presidency at the U.S. Naval War College, says American allies such as Britain and France “do just fine” with minimal legislative oversight of their secret services. Knott blames the creation of congressional oversight committees in the 1970s, following spying abuses, for restricting intelligence agencies “from doing the dirty jobs that all governments want but nobody wants to take credit for.”
F.A.O. Schwarz Jr. , the former chief counsel for the Church Committee, the 1975 Senate panel that investigated abuses and led to permanent congressional oversight, called last week for a new special Senate panel to look into the CIA and the National Security Agency, whose surveillance programs were exposed in leaks by contractor Edward Snowden. The current system, Schwarz wrote in an op-ed in The Nation magazine, has “become a less reliable check.”
Former ranking House Intelligence Committee member Jane Harman, one of the first in Congress to disapprove of the CIA interrogations, blames the Bush administration’s use of executive authority to cut Congress out of the loop in secret briefings during the early 2000s. Harman, now president of the Wilson Center, a Washington think-tank, said Congress “did think it was a target and felt it would be hit.” Once Bush publicly acknowledged the use of waterboarding in September 2006, she said, “Congress began to push back.”
Tensions at times have smoldered between the intelligence committee and CIA during secret meetings about waterboarding and the “black site” prisons. One former Senate aide said the CIA resisted a proposal for congressional staffers to visit and inspect several prison sites overseas. The inspection was scuttled, said the former aide, who spoke on condition of anonymity because details of the briefings were still classified.
“The concern at the agency is that real-world sources and operations could be exposed,” said Charles Faddis, who headed the CIA’s Counter Terrorism Center between 2006 and 2008 and now heads Orion Strategic Services, a national security consulting firm. “For some (congressional) staffers, it was almost a game to push as far as they could and leave us to pick up the pieces.”
To many inside the CIA, the growing pressure appeared to be a deliberate attempt to blame the agency for carrying out Bush administration decisions. “The whole chapter with regard to questioning and black sites has been inherently adversarial,” Hayden said.
Some observers also fault the CIA’s unwillingness to adapt to America’s changing attitudes about terrorism, partly the result of the agency’s own successes. With Osama bin Laden dead and NSA leaks raising fears about unfounded eavesdropping, the CIA under Brennan has ratcheted up tension with Democrats who run the Senate committee — a surprising turn considering the agency’s reputation for adeptly anticipating and avoiding Washington’s political minefields.
Obama administration lawyers tried to shepherd the two sides toward agreement, said officials familiar with the developments.
Brennan set the tempest to boiling when he and acting CIA general counsel Robert Eatinger informed White House lawyers earlier this year that they intended to ask for a criminal investigation over the Senate aides’ alleged mishandling of classified files. Feinstein later accused Eatinger of trying to intimidate the committee, pointing out another CIA lapse, the involvement of a lawyer with a stake in the outcome.
Eatinger had been one of several CIA lawyers who reportedly advised former CIA senior official Jose Rodriguez that he had legal authority to destroy the waterboarding tapes — even though they did not give direct approval. Some legal experts, among them former Bush legal counsel Jack Goldsmith, minimize concerns about Eatinger’s potential conflicts. Others say the CIA should have minimized any impression of conflict.
“It’s hard to know if there’s an actual conflict, but certainly there’s an appearance,” Faddis said.
By the time Feinstein rose in the Senate chamber last week, all the missteps and tensions left no room to maneuver.
As Hayden summed up: “There are no winners coming out of this.”