Senate
Report On CIA Torture Is One Step Closer To
Disappearing
By Michael
Isikoff
May 17, 2016 "Information
Clearing House"
- "Yahoo
News"
- The CIA inspector general’s office — the spy
agency’s internal watchdog — has acknowledged it
“mistakenly” destroyed its only copy of a mammoth
Senate torture report at the same time lawyers for
the Justice Department were assuring a federal judge
that copies of the document were being preserved,
Yahoo News has learned.
While another
copy of the report exists elsewhere at the CIA, the
erasure of the controversial document by the office
charged with policing agency conduct has alarmed the
U.S. senator who oversaw the torture investigation
and reignited a behind-the-scenes battle over
whether the full unabridged report should ever be
released, according to multiple intelligence
community sources familiar with the incident.
The deletion
of the document has been portrayed by agency
officials to Senate investigators as an
“inadvertent” foul-up by the inspector general. In
what one intelligence community source described as
a series of errors straight “out of the Keystone
Cops,” CIA inspector general officials deleted an
uploaded computer file with the report and then
accidentally destroyed a disk that also contained
the document, filled with thousands of secret files
about the CIA’s use of “enhanced” interrogation
methods.
“It’s
breathtaking that this could have happened,
especially in the inspector general’s office —
they’re the ones that are supposed to be providing
accountability within the agency itself,” said
Douglas Cox, a City University of New York School of
Law professor who specializes in tracking the
preservation of federal records. “It makes you
wonder what was going on over there?”
The incident
was privately disclosed to the Senate Intelligence
Committee and the Justice Department last summer,
the sources said. But the destruction of a copy of
the sensitive report has never been made public. Nor
was it reported to the federal judge who, at the
time, was overseeing a lawsuit seeking access to the
still classified document under the Freedom of
Information Act, according to a review of court
files in the case.
A CIA
spokesman, while not publicly commenting on the
circumstances of the erasure, emphasized that
another unopened computer disk with the full report
has been, and still is, locked in a vault at agency
headquarters. “I can assure you that the CIA has
retained a copy,” wrote Dean Boyd, the agency’s
chief of public affairs, in an email.
The 6,700-page
report, the product of years of work by the Senate
Intelligence Committee, contains meticulous details,
including original CIA cables and memos, on the
agency’s use of waterboarding, sleep deprivation and
other aggressive interrogation methods at “black
site” prisons overseas. A 500-page executive summary
was released in December 2014 by Democratic Sen.
Dianne Feinstein, the committee’s outgoing chair. It
concluded that the CIA’s interrogations were far
more brutal than the agency had publicly
acknowledged and produced often unreliable
intelligence. The findings drew sharp dissents from
Republicans on the panel and from four former CIA
directors.
But the full
three-volume report, which formed the basis for the
executive summary, has never been released. In light
of a U.S. Court of Appeals ruling last week that the
document is not subject to the Freedom of
Information Act, there are new questions about
whether it will ever be made public, or even be
preserved.
After
receiving inquiries from Yahoo News, Feinstein, now
the vice chair of the committee,
wrote CIA Director John Brennan last Friday
night asking him to “immediately” provide a new copy
of the full report to the inspector general’s
office.
“Your prompt
response will allay my concern that this was more
than an ‘accident,’” Feinstein wrote, adding that
the full report includes “extensive information
directly related to the IG’s ongoing oversight of
the CIA.” (CIA spokesman Boyd declined to comment.)
The incident
is the latest twist in the ongoing battle over the
report, and comes in the midst of a charged
political debate over torture. Likely Republican
Party nominee Donald Trump has vowed to resume such
methods — “and
a lot more” — in the war against the Islamic
State. “I love it, I love it,” Trump recently said,
describing his views on waterboarding. “The
only thing is, we should make it much tougher than
waterboarding.” )
Ironically in
light of the inspector general’s actions, the
intelligence committee’s investigation was triggered
by the CIA’s admission in 2007 that it had destroyed
another key piece of evidence — hours of videotapes
of the waterboarding of two “high value” detainees,
Abu Zubaydah and Abd al-Rahim al-Nashiri.
According to a
brief by the American Civil Liberties Union (ACLU),
which is seeking release of the full report under
the Freedom of Information Act, the document
“describes widespread and horrific human rights
abuses by the CIA” and details the agency’s
“evasions and misrepresentations” to Congress, the
courts and the public.
To ensure the
document was circulated widely within the
government, and to preserve it for future
declassification, Feinstein, in her closing days as
chair, instructed that computer disks containing the
full report be sent to the CIA and its inspector
general, as well as the other U.S. intelligence and
law enforcement agencies. Aides said Feinstein
specifically included a separate copy for the CIA
inspector general because she wanted the office to
undertake a full review. Her goal, as she wrote at
the time, was to ensure “that the system of
detention and interrogation described in this report
is never repeated.”
But her
successor, Republican Sen. Richard Burr of North
Carolina, quickly asked for all of the disks to be
returned, even threatening at one point to send a
committee security officer to retrieve them. He
contended the volumes are congressional records that
were never intended for executive branch, much less
public, distribution.
The
administration, while not complying with Burr’s
demand to return the disks, has essentially sided
with him against releasing them to the public. Early
last year, Justice lawyers instructed federal
agencies to keep their copies of the document under
lock and key, unopened, lest the courts treat them
as government records subject to the Freedom of
Information Act. Weeks later, in an effort to head
off a motion for “emergency relief” by the ACLU, a
Justice Department lawyer told U.S. Judge James
Boasberg that no copies of the report would be
returned to Congress or destroyed; the government
“can assure the Court that it will preserve the
status quo” until the Freedom of Information Act
lawsuit was resolved, wrote Vesper Mei, a senior
counsel in the Justice Department’s civil division,
in a February 2015 filing.
But last
August, a chagrined Christopher R. Sharpley, the
CIA’s acting inspector general, alerted the Senate
intelligence panel that his office’s copy of the
report had vanished. According to sources familiar
with Sharpley’s account, he explained it this way:
When it received its disk, the inspector general’s
office uploaded the contents onto its internal
classified computer system and destroyed the disk in
what Sharpley described as “the normal course of
business.” Meanwhile someone in the IG office
interpreted the Justice Department’s instructions
not to open the file to mean it should be deleted
from the server — so that both the original and the
copy were gone.
At some point,
it is not clear when, after being informed by CIA
general counsel Caroline Krass that the Justice
Department wanted all copies of the document
preserved, officials in the inspector general’s
office undertook a search to find its copy of the
report. They discovered, “S***, we don’t have one,”
said one of the sources briefed on Sharpley’s
account.
Sharpley was
apologetic about the destruction and promised to ask
CIA director Brennan for another copy. But as of
last week, he seems not to have received it; after
Yahoo News began asking about the matter, he called
intelligence committee staffers to ask if he could
get a new copy from them.
Sharpley also
told Senate committee aides he had reported the
destruction of the disk to the CIA’s general
counsel’s office, and Krass passed that information
along to the Justice Department. But there is no
record in court filings that department lawyers ever
informed the judge overseeing the case that the
inspector general’s office had destroyed its copy of
the report.
The episode
was viewed among intelligence committee aides as
another embarrassment for the inspector general’s
office. Months earlier, a CIA accountability board
had overruled the IG’s findings that agency
officials had improperly searched computers used by
Senate investigators working on the report. Sharpley
has been serving as acting inspector general since
his predecessor, David Buckley, resigned in January
2015. The White House has yet to nominate a
successor.
A Justice
Department spokesman said on Friday that, since the
inspector general’s office is, by statute, a “unit”
of the CIA, and the agency still had its copy, “the
status quo … was preserved.” But Feinstein, in a
separate letter to Attorney General Loretta Lynch
last Friday, took a different view: She asked that
the Justice Department “notify the federal courts”
involved in the Freedom of Information Act
litigation about the destruction.
At issue in
the ongoing legal dispute is whether the report is
subject to the Freedom of Information Act (FOIA).
The administration says no, and a three-judge panel
of the U.S. Court of Appeals last week agreed,
ruling that it is a congressional document not
subject to FOIA, under the terms of a 2009 letter by
which the Senate panel had received access to CIA
files. The judges did write, however, that the
executive branch does have “some discretion to use
the full report for internal purposes.” The ACLU
said on Friday it was “considering our options for
appeal”; CIA spokesman Boyd said the agency’s copy
of the report would be retained “pending the final
result of the litigation.” But he pointedly made no
mention of what would happen to the CIA’s copy of
the report after that.
In the
meantime, Feinstein, joined by Democratic Sen.
Patrick Leahy of Vermont, has taken a different
route, petitioning David S. Ferriero, the chief of
the National Archives, to formally declare the
report a “federal record” that must be preserved “in
the public interest” under a law known as the
Federal Records Act.
In a letter
last month, the senators expressed concerns that
federal agencies might destroy their copies of the
report. “No part of the executive branch has ruled
out destroying or sending back the full report to
Congress after the conclusion of the current FOIA
litigation,” they wrote in an April 13, 2016,
letter. A similar point was raised by more than 30
advocacy groups who noted in a separate letter to
Ferriero last month that the archivist had a duty to
act whenever there was a threat that government
records are at risk of “unauthorized destruction.”
Ferriero on
April 29 wrote back to Feinstein that he would not
rule on the question until the FOIA court case is
concluded. And last week, Burr renewed his call to
have all copies of the report sent back — presumably
a way to ensure they are never publicly released.
Citing the new Court of Appeals ruling, “Sen. Burr
anticipates the return of these full reports to the
Senate Intelligence Committee,” a spokeswoman said.
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