John Brennan was about to say he was sorry.
On July 28, 2014, the CIA director wrote a letter to senators Dianne Feinstein and Saxby Chambliss — the chairwoman of the Senate Intelligence Committee (SSCI) and the panel's ranking Republican, respectively. In it, he admitted that the CIA's penetration of the computer network used by committee staffers reviewing the agency's torture program — a breach for which Feinstein and Chambliss had long demanded accountability — was improper and violated agreements the Intelligence Committee had made with the CIA.
The letter was notable in part because Brennan initially denied the January 2014 search of the Senate's computer network even took place. And later, when it became clear that it had — and that he had known of it while publicly denying that it happened — he refused to acknowledge that it was wrong. For months, Feinstein and other committee members were clamoring for a written apology to make part of the official record.
Brennan's mea culpa was prompted by a memo he'd received 10 days earlier from CIA Inspector General David Buckley. After the Office of the Inspector General (OIG) was tasked with looking into the intrusion, it found that the CIA employees who broke into the Senate's computer network in hopes of tracking down CIA documents the Senate wasn't allowed to see (according to the agency) may have broken federal laws.
"I recently received a briefing on the [OIG's] findings, and want to inform you that the investigation found support for your concern that CIA staff had improperly accessed the [Intelligence Committee] shared drive on the RDINet [an acronym for rendition, detention, and interrogation] when conducting a limited search for CIA privileged documents," Brennan wrote. "In particular, the [OIG] judged that Agency officers' access to the... shared drive was inconsistent with the common understanding reached in 2009 between the Committee and the Agency regarding access to RDINet. Consequently, I apologize for the actions of CIA officers.... I am committed to correcting the shortcomings that this report has revealed."
But Brennan didn't sign or send the apology letter.
Instead, four days later, he sent Feinstein and Chambliss a different letter — one without an apology or admission that the search of their computer network was improper. He did say, however, that he was going to "stand up" an "independent" accountability review board, whose members would be appointed by Brennan, to look into the OIG findings and determine whether the CIA employees who conducted the search should be punished.
Last December, that accountability board issued a report and overturned nearly all of Buckley's findings and conclusions. It also exonerated Brennan and the CIA personnel who searched the Senate's computer network.
Brennan did verbally apologize to Feinstein and Chambliss during an in-person briefing about the findings of the OIG report, but Intelligence Committee members told VICE News it was unacceptable because there was not a written record of it. The lawmakers also noted that Brennan should have apologized to them — and to the Senate staffers who the CIA referred to the Justice Department for criminal prosecution.
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The draft apology letter Brennan wrote to Feinstein and Chambliss are two of more than 300 pages of documents [pdf at the bottom of this story] VICE News obtained in response to a joint Freedom of Information Act (FOIA) lawsuit filed against the CIA with Ryan Shapiro, a historian and doctoral candidate at the Massachusetts Institute of Technology who specializes in national security research. We sued the CIA seeking a wide range of documents related to the allegations that the agency had spied on the Intelligence Committee and hacked into their computer network. While the CIA turned over some records, it also withheld thousands of pages, citing nearly every exemption under FOIA.
After VICE News received the documents, the CIA contacted us and said Brennan's draft letter had been released by mistake. The agency asked that we refrain from posting it.
We declined the CIA's request. But the agency's appeal mirrors what may be the central question behind the ongoing fight between the Senate Intelligence Committee and the CIA: Did the CIA mistakenly give the committee access to internal documents about the detention and interrogation program that the Senate was never supposed to see?
The apology letter Brennan never signed or sent
As a courtesy, the CIA shared the documents turned over to VICE News with Feinstein and her staff. Prior to receiving them, the senator was not aware that Brennan wrote her an apology letter. Feinstein had asked the CIA to declassify and publicly release some of these documents, but agency officials balked.
It's understandable why they did.
The documents lend significant weight to Feinstein's extraordinary March 11, 2014 floor speech in which she accused the CIA of spying on her committee, intimidating her staffers, and attempting to block the release of the committee's report about the CIA's torture program. Moreover, the CIA documents strongly suggest that the CIA overreacted to suspicions that the Intelligence Committee obtained what the agency insists is a "privileged" set of internal CIA documents about the torture program known as the Panetta Review.
"When I spoke on the Senate floor in March 2014, I outlined the agreement between Director Panetta and the Intelligence Committee that committee staff would review CIA documents in an offsite CIA facility and their work would not be monitored," Feinstein told VICE News. "These documents and letters prove the agreement existed, an agreement unfortunately broken by the CIA.
"The documents also shed light on the Panetta Review. As I've said in the past, committee staff located the Panetta Review using the document search tool provided by the CIA from documents the CIA itself made available to the committee. This was the document that supposedly spurred the CIA to monitor the committee's work, an action for which the CIA still has held no one responsible."
The Intelligence Committee's damning report on the CIA's torture program, which concluded that the CIA's use of so-called "enhanced interrogation techniques" was not effective and did not produce "unique" and "valuable" intelligence, was released eight months ago. But the infighting over allegations of spying and hacking, and the harsh criticism leveled against the Intelligence Committee about the substance of its report by former CIA officials, has shown no signs of subsiding.
Senator Dianne Feinstein's March 11, 2014 floor speech, during which she accused the CIA of spying on her committee
Indeed, next month, eight former top CIA officials will take another stab at discrediting the Senate's narrative in the book Rebuttal: The CIA Responds to the Senate Intelligence Committee's Study of Its Detention and Interrogation Program.
The trove of CIA documents released to VICE News is made up of congressional correspondence, along with CIA emails, memos, and internal reports dating back to 2009. It provides revelatory new insight into the yearlong clash between the Senate and the CIA over the penetration of the Senate's computer network and the CIA's attempts to control the fallout that ensued. The documents call into question the CIA's narrative about the incident and undercut the conclusions of the CIA's accountability review board.
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It all began with a Google search.
On November 9, 2010, a Senate staffer discovered the Panetta Review while conducting a search on the committee's side of the walled-off network — RDINet — it shared with the CIA at a building in Northern Virginia leased by the agency. According to the CIA, the Panetta Review wasn't supposed to be shared with the Senate committee. But according to officials knowledgeable about the situation, the Senate staffer who discovered the review apparently didn't know this. (The Panetta Review was found on the same day that the Justice Department announced that a special prosecutor would not pursue criminal charges against CIA personnel who destroyed nearly 100 interrogation videotapes, one of which showed a CIA captive being waterboarded. The destruction of the videotapes is what led the Senate Intelligence Committee to launch its review of the CIA's torture program.)
The computer system was set up in June 2009 under a modified $40 million contract the CIA first entered into with Burlington, Massachusetts-based firm Centra Technology Inc. in 2007, the documents reveal. Centra contractors were also tasked with compiling and reviewing the millions of pages of documents pertaining to the detention and interrogation program before the CIA placed them onto the Senate committee's side of the network.
Nicholas Weaver, a researcher with the International Computer Science Institute in Berkeley, reviewed some of the CIA documents for VICE News. He said the computer network the CIA set up was essentially a "big common fileserver, but with different roles and access controls, so a [Senate] person could only read [Senate] stuff, and CIA only CIA stuff, and there was a shared folder that both could read. So it wasn't really two separate networks connected by a firewall, but a common fileserver with separate roles."
"It appears there are a bunch of workstations, printers, a shared database, a shared fileserver, and a shared Google search appliance," Weaver said. "Otherwise, it's completely disconnected from the rest of the world."
Centra installed a Google search tool that allowed the Senate staffers to search documents for details about individual CIA captives who were subjected to so-called "enhanced interrogation techniques" such as waterboarding. The Google search tool was configured with permissions and security restrictions meant to prohibit the staffers from gaining access to certain documents in a folder on the CIA's side of the network they were not permitted to see.
This is not how the Intelligence Committee wanted to conduct its probe. Typically, oversight investigations involving classified activities took place at the Senate's secure facility inside the Hart Office Building on the Senate's own computer network. But Panetta wanted this probe to be held on the CIA's turf because of the sensitivity of the information. In addition to describing detention conditions and interrogation techniques, the documents contained the identities of individual CIA officers and their pseudonyms, the locations of CIA black site prisons, and the countries that assisted the CIA. Panetta promised Feinstein and then-committee vice chairman Kit Bond that the committee staffers would be allowed to work independently without interference from the CIA.
The documents, however, indicate that RDINet was set up for "extensive logging of user activity," Weaver said, a "natural requirement in any remotely secure environment, and that logging had to be accessible by the [CIA's system administrators]."
"The insistence that committee staff travel to an offsite CIA facility allowed the CIA to spy on the committee's work," Feinstein told VICE News late last month.
The Intelligence Committee assigned 15 staffers to the probe — all of whom had top-secret security clearance — as well as its general counsel, staff directors, and deputy staff directors, according to a declassified June 2, 2009 letter marked "SECRET" that Feinstein and Bond sent Panetta.
'If you are good with this and notify me tonight,' the CIA employee said, 'I will proceed to drink enough alcohol to become comfortably numb.'
That letter, one of many exchanged between the Intelligence Committee and Panetta in 2009, established the procedures for how the committee would conduct its investigation, and the ground rules for reviewing relevant documents about the interrogation program.
"CIA will provide a stand-alone computer system... with a network drive for Committee staff and Members," Feinstein and Bond wrote. "This network drive will be segregated from CIA networks to allow access only to Committee staff and Members. The only CIA employees or contractors with access to this computer system will be CIA information technology personnel who will not be permitted to copy or otherwise share information from the system with other personnel, except as otherwise authorized by the Committee."
Reaching an agreement that would allow the Intelligence Committee to gain complete access to all of the CIA's operational files about the program was no easy task. A series of emails exchanged between a Senate staffer and a CIA employee discussed the process for redacting notes Senate staffers wanted to remove from the building. The CIA was not interested in "thoughts, opinions, assessments, points of view, strategies, etc.," the CIA employee said. "lf, however, you have taken any notes based on the operational material, it is within our purview to review those notes. We will rely on the honor of each staff member to identify those notes to our officers for redaction."
The CIA employee went on: "If you are good with this and notify me tonight... I will proceed to drink enough alcohol to become comfortably numb."
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On June 4, 2009, Panetta responded to Feinstein and Bond in a declassified letter saying he would agree to their terms. Panetta added that the CIA "recognizes the Committee's need to create work product on a walled-off network share-drive."
"CIA access to the walled-off network share-drive will be limited to CIA information technology staff, except as otherwise authorized by the Committee or its staff," Panetta said. "CIA would like to clarify, however, that unlike the walled-off network share drive, the stand-alone network must be accessed by the CIA staff assigned to this effort to perform a variety of tasks, including, for example, loading and organizing the raw responsive data requested by the Committee and review or redaction of material sought to be removed from the Reading Room. Finally, any remaining security or logistical concerns or other issues can be resolved through our respective staffs."
The agreement contained in that paragraph became known as the "common understanding," and it remains at the center of the yearlong dispute between the Senate and the CIA that began after Brennan disclosed to Feinstein and Chambliss that the agency penetrated Senate staffers' computers in search of a document he alleged the Senate took from the CIA's folder on RDINet.
Feinstein and other intelligence committee members held up their June 2, 2009 letter and Panetta's response when they said the CIA's search of Senate computers violated the common understanding and encroached upon separation of powers between Congress and the executive branch. The OIG agreed. But the CIA's accountability review board, when overturning OIG's report, said no formal agreement had ever been reached, although the Panetta letter makes clear that any "security concerns" was to be raised through "respective staffs."
Senator Dianne Feinstein. (Photo by J. Scott Applewhite/AP)
Just a few months into the committee's probe, the CIA tried to walk back part of the agreement it reached with Feinstein and Bond, according to the CIA documents. US officials told VICE News that around this time, the CIA became very nervous about the possibility of leaks.
Several meetings took place between the agency and Intelligence Committee representatives during the summer of 2009 centering on the production of interrogation-related documents and attempts by the CIA to monitor the committee's work. By this point, Republicans on the Intelligence Committee who had supported the probe withdrew that support, leaving the review entirely in the Democratic majority's hands.
According to a September 23, 2009 letter sent to the CIA's acting general counsel by someone from the Intelligence Committee — the person's name was redacted — the CIA wanted more control over the committee's work. Specifically, the CIA wanted to review all of the committee's notes that were based on its review of interrogation documents before staffers removed the notes from the secure facility "because of a concern for the sensitivity of the information." The CIA, of course, had previously agreed to inspect and redact only notes and other work product that contained the identities and pseudonyms of individual CIA officers, foreign government officials, and black site locations.
The Senate Intelligence Committee rejected the request.
"Committee staff needs the ability to generate strategic or Committee sensitive documents... without having to provide them to a member of the Executive branch to review," the letter said.
The committee representative also vowed that "no information resulting from the Committee's study will be publicly released prior to a determination by the CIA, or if applicable the [Director of National Intelligence], that such information is unclassified.... These stringent safeguards should address the CIA's concerns about the sensitivity of the information."
This previously unreported arrangement, first agreed upon in an exchange of emails between a CIA official and a Senate staffer in June 2009, is behind the reason why it took two years for the Senate Intelligence Committee to publicly release an executive summary of its mammoth 6,700-page report after it was completed in late 2012: The CIA and the Office of the Director of National Intelligence refused to bow to the committee's demands to declassify the summary due in part to the committee's use of pseudonyms to identify CIA officers.
The disagreements dragged on for so long that Senator Mark Udall threatened to read the torture report into the congressional record.
Although the committee's Republican minority stopped participating in a bipartisan review with Democrats, Feinstein asked Panetta to make arrangements for Republican staffers to view the same CIA documents her staffers pored over. The Republicans were granted access to a separate reading room at the offsite facility to review all of the documents provided to the Democratic committee staffers. But the Republicans did not peruse any when they wrote their dissenting report about the torture program. A footnote in their report said, "These Views should not be treated as an independent report based upon a separate investigation, but rather our evaluation and critique of the Study's problematic analysis, factual findings, and conclusions."
In December of 2012, the Intelligence Committee voted 9-6 to approve the report. A copy was sent to President Barack Obama and other executive branch officials for review and comment.
The following June, Brennan hand-delivered the CIA's official response to Feinstein and Chambliss. Committee staffers told VICE News that when Feinstein and her staffers read it, they were stunned. The CIA's response condemned and disavowed many of the Intelligence Committee's findings and conclusions, particularly those about the efficacy of the interrogation techniques, which the Intelligence Committee concluded did not thwart any terrorist plots or lead to actionable intelligence.
The senator and her staffers had expected the CIA's response to be in sync with the committee's scathing findings and conclusions. They based that assumption on characterizations of the enhanced interrogation program they discovered in the Panetta Review — the thousands of pages of internal CIA documents the Senate wasn't supposed to see.
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When the Intelligence Committee announced in 2009 that it would review the CIA's detention and interrogation program, Panetta said that he, too, planned to review it. He formed the Director's Review Group for Rendition, Detention, and Interrogation, whose investigation was to run parallel to the one being conducted by the Intelligence Committee. The CIA employees assigned to the Director's Review Group, who worked in the same building as the Senate staffers, were tasked with compiling the same documents the committee saw and writing up reports about what they found. The group was disbanded for unknown reasons in mid-2010, according to the CIA.
An investigative report published by VICE News several months ago, which was based on the CIA's own internal documents and interviews with congressional and intelligence sources, found that at least one CIA employee on the Panetta Review team complained to her supervisors and to the OIG that the CIA publicly attributed intelligence to a detainee who'd been subjected to enhanced interrogation techniques when in fact the intelligence had not come from that detainee. After she registered her complaint, the CIA suspended the Panetta Review team's work.
US officials told VICE News that the Panetta Review was shut down for one reason: the CIA team conducting it discovered damning inconsistencies in reports agency officials made to Congress about the efficacy of the program, and horrific details about the way detainees were treated. These revelations by the CIA's own employees contradicted agency officials who had continued to publicly defend the program's value. The internal reports the Panetta Review team wrote, US officials told VICE News, were so troubling that a decision was made by agency lawyers to mark them as "deliberative" draft documents, thereby protecting them from disclosure via FOIA.
Daniel Jones, the principal author of the Senate's torture report, is the Senate staffer who in November 2010 discovered the Panetta Review. Using the Google search tool on his computer, Jones conducted a keyword search. When he did, documents he hadn't before seen appeared.
No one can identify the exact search term or terms that led to the discovery of the Panetta Review. But a US official told VICE News that it could have been any number of search strings, such as Abu Zubaydah and waterboarding, referring to the CIA captive who was the guinea pig for the program. Such search terms, when typed into the Google search tool, would have resulted in all documents mentioning Zubaydah and the drowning technique to which he was subjected being made available on the Senate's side of the computer network. This would have included CIA cables, emails — and the Panetta Review.
Weaver, the researcher with the International Computer Science Institute, said the Google search tool used by the Senate and CIA on RDINet is what's known as "Google In a Box," an "appliance that Google makes that indexes and searches private data (in this case, on a disconnected network) but presents the familiar Google interface through a web page."
"Overall, the flow was CIA person looks at a document, decides if it's okay to share, and copies it into the shared folder," Weaver said. "The Google search appliance had read access to the whole fileserver and was misconfigured so that (at minimum) it allowed read access to the CIA stuff from the [Senate] side."
According to US officials knowledgeable about Jones's access to the Panetta Review, he was unaware he was not supposed to see the documents. The Senate staffers assumed the CIA and Centra contractors cleared the material and placed it into the Senate's folder on the Senate's side of RDINet for review. Although the CIA maintains the Panetta Review was off limits to the Senate Intelligence Committee because it was marked "deliberative draft," the agency had already provided the committee with thousands of other documents from the torture program that had identical markings, US officials said.
Jones made copies of the documents and shared them with four other congressional staffers who accessed them on their computers at the CIA facility. A copy of the Panetta Review was also printed and placed in the committee's safe at the Hart Office Building, where it remains.Senate staffers said they did this without alerting the CIA because they feared the CIA would destroy the documents or revoke access to them, as the agency had with other documents in separate incidents. VICE News filed a FOIA lawsuit to obtain the document, but a judge denied the request, claiming that it was a "draft" document exempt from disclosure.
'The search may have violated the Fourth Amendment, the Speech and Debate Clause of the Constitution, and various statutes (including federal criminal statutes, such as the Computer Fraud and Abuse Act and Executive Order 12333).'
The CIA didn't know the Panetta Review was accessed by the Senate until three years later, after Brennan delivered the CIA's response to Feinstein and after committee staffers met with CIA officials more than a dozen times during the summer of 2013 to hash out their disagreements over the Senate's report.
The CIA's then-deputy general counsel, Darrin Hostetler, who had oversight over the committee's investigation and the CIA's Panetta Review team, told the Intelligence Committee that their conclusions about the detention and interrogation program were wrong and demanded changes to the report, US officials knowledgeable about the discussions told VICE News. Committee officials pointed out to Hostetler that the CIA's own internal documents contradicted the agency's public assertions.
On November 26, 2013, Feinstein confronted Brennan for the first time. She sent him a letter, a copy of which the CIA released to VICE News, demanding he turn over the Panetta Review. In doing so, she tipped him off that the committee had already taken possession of it.
"It has come to my attention that, after the [Intelligence Committee] began its review of CIA documents... former CIA Director Leon Panetta initiated an internal review of the records," Feinstein wrote. "It is my understanding that this internal review resulted in several summary documents that came to similar conclusions as those found [in the Senate's report]. Given the similarities... and the divergence of the CIA Response to the Committee Study... I am requesting a copy of the Director Panetta review and associated materials be made available to me as soon as possible."
The following month, Udall publicly revealed the existence of the Panetta Review during a confirmation hearing for Caroline Krass, who was nominated to be general counsel of the CIA. He asked her to commit to turning it over if she was confirmed. Udall followed up his request in a letter he sent to Obama on January 6, 2014.
About a week later, Brennan called an urgent meeting with Feinstein and Chambliss. He told them that days earlier, CIA personnel had secretly searched the Senate's shared drive on RDINet three times after he suspected the committee had obtained the Panetta Review, which the CIA claimed was a "privileged" document the agency could legally withhold from the oversight committee. Brennan, who briefed White House Chief of Staff Denis McDonough about the search, according to US officials, suggested the committee staffer who accessed the Panetta Review may have hacked into the CIA's side of RDINet.
According to a January 17, 2014 letter Feinstein sent Brennan, he told her and Chambliss at the meeting that he intended to launch a "forensic investigation on the computers and computer network" used by the Intelligence Committee. Feinstein demanded that Brennan suspend the investigation and refrain from further accessing the Senate's computers "until I can consider this matter further." She noted in her letter that "there are significant separation of powers issues involved here, and those must be properly considered." She also included a paragraph in her letter reminding Brennan of the common understanding, which restricted CIA access to the Senate's computer network unless authorized by the committee.
"I will likewise pledge that [committee] staff will not access those computers or computer networks for this same time period," she wrote.
Brennan agreed — but by the time he did, the CIA Office of Security's Cyber Blue Team had already penetrated the Senate's computer network and conducted a forensic review, according to a heavily redacted copy of their report. Brennan had previously issued a "stand down" order on any further search of the Senate's computers — but that order had never reached the Cyber Blue Team, according to the OIG investigation.
What the Cyber Blue Team discovered is that the Google search tool was misconfigured when Centra Technology installed it in 2009. The OIG's report about the incident noted that it wasn't the first time the CIA had to address a vulnerability issue with the Google search tool.
"In November 2012, the RDI team learned of a vulnerability with the Google appliance, related to configuration settings that had been in place since the initial installation in November 2009," the OIG's report says. "[The Office of Inspector General] reviewed an April 2013 email between members of the RDINet IT staff detailing the existing settings, which indicated an access control deficiency for search results. The RDI IT team updated the Google appliance in April 2013 to reflect this change. Prior to this update, the settings provided to the [Office of Inspector General] showed that the Google appliance was not configured to enforce access rights or search permissions within RDINet and its holdings."
Weaver explained that the Cyber Blue Team concluded the Google appliance "wasn't enforcing permissions properly, and revealing accessible locations for the [CIA] files."
The agency justified its search of the Senate's computer network by claiming there may have been a security breach. But according to several US officials knowledgeable about the Senate staffers' work on the torture report, the CIA should have known it had a Google problem — there had been numerous instances in which Senate staffers alerted contractors that keyword searches provided them with highly sensitive documents unrelated to the torture program.
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Feinstein wrote to Brennan on January 23, 2014 and told him she consulted with the Senate's legal counsel, who informed her that the CIA's search of the Senate's computer network "may have been inconsistent with the separation of powers principles embodied in the Constitution and essential to effective congressional oversight of intelligence activities."
"Second," her letter continued, "the search may have violated the Fourth Amendment, the Speech and Debate Clause of the Constitution, various statutes (including federal criminal statutes, such as the Computer Fraud and Abuse Act and Executive Order 12333)," which says its unlawful for the CIA to conduct domestic spying. Again, Feinstein told Brennan that the search violated the common understanding.
She also sent Brennan a list of 12 pointed questions about the search to which she demanded answers. She added that none of her staffers hacked into the CIA's side of RDINet.
"Due to the nature of the computer systems at the facility, the Committee has no way to determine who provided the documents and for what purpose," Feinstein wrote.
Brennan sent a memo to Meroe Park, the executive director of the CIA, recusing himself and granting her and her office "the lead for all matters." He then responded to Feinstein on January 27, 2014, saying the Panetta Review was not made available to the Intelligence Committee staffers because it didn't show up in the audit logs the Cyber Blue Team reviewed. He continued to float the narrative that Senate staffers stole the Panetta Review by hacking into the CIA's side of RDINet — but he didn't inform Feinstein that the agency's cyber sleuths discovered the Google search tool had been misconfigured. He demanded that the documents be returned, and he impressed upon her that the CIA would continue to probe how the Senate obtained them. (In her floor speech, Feinstein suggested that it could have been made available to the committee by a whistleblower).
Buckley, the CIA inspector general, sent a letter to Feinstein and Chambliss on February 4, 2014 saying his office had launched a probe into the breach of the computer network.
'When the facts come out on this,' Brennan said, 'I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong.'
As news of the CIA's search of the Senate's computer network started to make the rounds on Capitol Hill, Brennan was inundated with angry letters from powerful lawmakers.
"I cannot overstate how deeply disappointed I am to learn of the CIA's unauthorized search of the Senate Intelligence Committee's computer network at an offsite facility," wrote Senator John D. Rockefeller in a letter he sent to Brennan on January 27, 2014. "Particularly in the context of the Committee's Study on Detention and Interrogation where there has long been a deficit of trust — a deficit that you and I have been working to repair — this is so damaging."
Rockefeller sent numerous other letters to the CIA about the computer breach, US officials told VICE News, but the CIA did not release them.
Brennan didn't back down. Less than a week later, on February 7, 2014, the CIA sought to criminalize Jones's Google search. The agency's acting general counsel, Robert Eatinger, who worked at the CIA's counterterrorism center when the torture program was active and who Feinstein said is named in the torture report 1,600 times, signed a criminal referral sent to the Department of Justice accusing Jones and other Senate staffers of "fraud and related activity." He said Senate staffers may have "exploited a software vulnerability" — the software being the Google search tool.
The criminal referral said the Panetta Review was not dumped on the Senate side of RDINet. Rather, it claimed the Senate staffer conducted a search "that appeared intended to reach into part of the computer system to which the [staffer] did not have authorized access."
Hostetler, the CIA's deputy general counsel who led the briefings in the summer of 2013 between the CIA and the Senate over the substance of the committee's report, had a hand in writing the criminal referral. He also happened to be one of the unnamed CIA officers who searched the Senate's side of the RDINet computer network.
Hostetler is the author of a six-page "memorandum for the record" included in the documents the CIA turned over to VICE News, according to US officials. (His name is redacted from the document.) In the memorandum, he explained he was responsible for the security of RDINet and, on orders from Brennan, he ultimately asked the agency's IT staff to break into the Senate's computer network to determine if they obtained the Panetta Review. Hostetler said he thought the agreement between the Senate and CIA only covered an inspection of their "work product," not an audit of what they had accessed or a security review.
The CIA's criminal referral appeared to be a retaliatory move; the agency's assistant inspector general for investigations had sent an identical one to the Justice Department just four days earlier targeting CIA employees who were involved in the search. (The OIG noted in a final report issued later in 2014 that the CIA's criminal referral was not based on anything the Cyber Blue Team discovered during its investigation, but rather on what the lawyers were told "orally" could have happened in a worst-case scenario. There was no "factual basis" to support the criminal referral, the OIG said. Instead, it was based on "inaccurate information.")
The Justice Department asked the OIG to issue a preservation order to CIA employees and contractors, informing them not to destroy any documents that could be relevant to the search that took place. This rankled one of the CIA employees who was involved in the search.
"I guess consent to monitoring agreements don't apply to the" Senate Intelligence Committee, the CIA employee responded in an email when told to preserve any and all documents related to the search of Senate staffers' computers.
That response is noteworthy; after Brennan tasked the accountability board to take a look at the OIG's findings, the board wrote in its report that each time the Senate staffers logged onto their computers, a message would pop up indicating they needed to consent to monitoring. The accountability review board determined that the CIA employees never "spied" on the Senate committee or improperly accessed their computer network because Senate staffers consented to monitoring when they clicked "ok" on the message.
Feinstein, in a statement she released on her website at the time, said, "No warning inserted into a computer system by CIA personnel; and indeed no SSCI staff; could alter the agreement made between the Committee and the CIA. To argue otherwise is ridiculous."
In February, the OIG also issued a request for documents and sought interviews with employees, some of whom sought legal guidance before agreeing to speak.
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As the investigation progressed into March, reporters from McClatchy Newspapers discovered details about the Justice Department inquiries into the CIA's search of Senate computers and, citing anonymous sources, published stories about the breach. This prompted Feinstein to take to the Senate floor to address the matter.
Her public comments about the January 2014 computer breach further inflamed relations between the committee and CIA, and Brennan went on the offensive.
"When the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong," Brennan said during a speech at the Council on Foreign relations hours after Feinstein's floor speech.
Brennan sent two emails to CIA employees, one on the same day as Feinstein's speech and another 10 days later, explaining the spate of news stories, many of them negative, about the CIA's actions.
"CIA and the [Intelligence Committee] have been working for many months to resolve issues related to the Committee's RDI report," Brennan said in an email he sent immediately after Feinstein's speech. "CIA has more than enough current challenges on its plate, which is why, far more than any other institution of government, the CIA wants to put the rendition, detention, and interrogation chapter of its history behind it. The Agency's detention facilities have long been closed. President Obama officially ended the program five years ago, by which time the CIA had ceased its interrogation activities.
"We have acknowledged and learned from the program's shortcomings, and we have taken corrective measures to prevent such mistakes from happening again. But we also owe it to the women and men who faithfully did their duty in executing this program to try to make sure any historical account of it is balanced and accurate."
CIA public affairs director Dean Boyd also took part, writing an op-ed in USA Today in response to a scathing editorial the newspaper published condemning the CIA's actions pertaining to the computer search. Boyd's op-ed contained much of the same language as Brennan's messages to the workforce.
John Brennan. (Photo via Wikimedia Commons)
Brennan spoke highly of Feinstein in a March 21, 2014 message to CIA employees, saying she had been a friend and supporter of the CIA. But he noted that the "intelligence profession is frequently a difficult and challenging one, and it should come as no surprise that many of the things CIA is asked to do are subjected to close scrutiny."
The CIA's internal public relations campaign also saw Brennan sit down for an interview with the CIA's in-house newsletter, "What's News."
"We've all seen the recent media coverage about the RDI [rendition, detention and interrogation] program and CIA's relationship with the Senate. Can you tell us about this situation and what efforts are being made to improve relations with Congress?" asked the CIA's in-house reporter, whose name was redacted from a transcript of the interview provided to VICE News.
"Well, this is an issue of great importance to the Agency as well as to our Senate oversight committee, the SSCI," Brennan responded. "And, there are many different dimensions of this. There is the recent discussion and concern about what might have happened related to the computers that the SSCI has used to put together the report. This is something of great concern to me, as well as to the leadership of the committee, and we've had opportunities to talk about this. Which is the reason why, early on, I referred the matter to our Inspector General, because I need to understand exactly what the Agency did. And if the Agency did something wrong, and Agency officers did anything wrong, we will take appropriate action and hold ourselves to account."
Two days after Feinstein's March 11, 2014 floor speech, according to a previously undisclosed letter Feinstein and Chambliss sent Brennan, the Senate Intelligence Committee voted to have Brennan respond to 14 questions — two more than Feinstein had originally posed a couple of months earlier. Who authorized the computer search? What was the legal basis for it? Did Brennan approve it? What purpose did it serve? Was the search a one-time event?
Brennan responded a month later.
"I have consulted with our Inspector General regarding this matter," he wrote. "The Inspector General has requested that I defer responding to your questions until the conclusion of ongoing inquiries that are currently being conducted by his office and the Department of Justice in order to protect the integrity of those inquiries. You have my assurance that I will provide the Committee with a thorough response after those inquiries have concluded."
That month, as tensions between the CIA and the Senate peaked, the White House gave the CIA the lead in handling the redactions of a 525-page executive summary of the Senate's torture report, a decision that led to even chillier relations when the CIA insisted on redacting huge swaths of the Senate document.
Lawmakers angry about the unauthorized search of the Senate's computer network pilloried the CIA director.
"Given the separation of powers interests at stake ... you should have at the very least asked Chairman Feinstein and her staff for an explanation before taking the highly questionable and possibly unconstitutional step of searching a computer network used by the Legislative Branch," wrote Assistant Senate Majority Leader Richard Durbin in a letter he sent to Brennan on March 13, 2014. "I take seriously Chairman Feinstein's concern that this is a potential effort to intimidate [Senate] staff ... I urge you to directly address the serious separation of powers issues that have been raised."
Harry Reid, then the Senate Majority Leader, sent a March 19, 2014 letter to Brennan in which he noted: "To my knowledge, the CIA has produced no evidence to support its claims that Senate committee staff who have no technical training somehow hacked into the CIA's highly secure classified networks, an allegation that appears on its face to be patently absurd."
Reid, who also shared his concerns about the matter in a letter he sent Attorney General Eric Holder, informed Brennan that he "instructed the Senate Sergeant-at-Arms to initiate a forensic examination of the computers and computer network assigned for exclusive [Intelligence Committee] use, in order to determine how the 'Panetta Review' entered the network."
Brennan responded to Reid on April 3, 2014: "While we come at this issue from different perspectives, I fully agree that we should find a sensible way to resolve this matter that preserves the crucial equities of both the Legislative and Executive Branches."
Reid and Brennan continued to exchange letters through May. They reached an agreement that the sergeant-at-arms and OIG would work jointly. However, the sergeant-at-arms would not investigate CIA personnel and the OIG would not investigate the actions of Senate staffers. The findings of the sergeant-at-arms review have never been revealed.
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An email someone at the CIA sent on April 1, 2014 warned that there had been a potential violation of the preservation order instructing CIA employees to retain and turn over RDINet-related materials.
"We have been notified that a Google search appliance that was previously installed on RDI-Net has been recently replaced," the email said. "Therefore, you are directed to preserve and maintain the removed Google search appliance and all system, network, database, and appliance logs related to the removal and to the replacement search appliance."
A CIA employee responded to the directive, "The fun never stops!"
CIA spokesman Ryan Trapani told VICE News there was nothing nefarious about the removal of the Google search tool, and that the CIA wasn't trying to destroy evidence.
"As with most programs, the Google tool on RDINet was subject to periodic updates," he said. "All data relevant to the [OIG] investigation and a possible Senate Sergeant-at-Arms investigation was maintained and remained accessible."
Weaver, the researcher with the International Computer Science Institute, said removing the Google search appliance "makes sense if it was misconfigured and leaking information, you'd want it off the network ASAP."
"It really was a significant problem in their architecture," he said.
The fact that it was removed did not merit a mention in the OIG's report or the follow-up review by the accountability board.
On July 8, 2014, attorneys working for the Justice Department's counterespionage and computer crime and intellectual property sections sent a letter to Krass and declined to open a formal criminal probe into the five CIA employees who were cited for the improper search of the Senate's side of the walled-off computer network.
"Working with investigators from the Central Intelligence Agency's Office of the Inspector General, the Department has completed a preliminary inquiry into this matter and determined that, based on the information available to us at this time, there is insufficient basis to open a criminal investigation," wrote the attorneys, whose names were redacted.
Feinstein and Chambliss sent Brennan another letter three days later.
"We write to formally request responses to the fourteen questions (attached) that we sent you on March 27, 2104, related to the CIA's search of the computer network," they wrote. "As you know, the Committee unanimously voted to request responses to these important questions on March 13, 2014. Now that the Department of Justice review is complete and the review by the CIA Inspector General is complete, or near completion, we look forward to receiving answers to these questions as soon as possible."
Brennan didn't respond.
Buckley, the CIA Inspector General, sent a memo to Brennan on July 18, 2014, detailing the findings of his probe. He said CIA lawyers [Hostetler being one] told CIA IT staff to set up a "dummy" user account on RDINet to "run Google queries with the same permissions as the [Senate] Majority staffer to see what they were able to view in their search results." The CIA lawyers then instructed the CIA IT staff to search the Senate's shared drive for the Panetta Review, which was, in fact, there.
"The investigation found support for allegations that CIA staff accessed the SSCI shared drive without authorization," Buckley wrote. "It also found that you [Brennan] did not authorize the access or know the extent of the access. Based on the above findings, OIG recommends that you review the facts and circumstances presented in this report regarding the named CIA officers and take action as deemed appropriate."
That's when Brennan drafted the apology to Feinstein and Chambliss.
The CIA told VICE News that Brennan decided to write the second letter to Feinstein and Chambliss — the one that did not contain the apology or the admission that the computer breach violated the common understanding — because he decided to apologize to them privately in person.
"Rather than sending a letter, the Director chose to hold a face-to-face meeting with Senators Feinstein and Chambliss to describe the findings in the [OIG] report and to apologize for such actions by CIA officers as described in the [OIG] report," Trapani said.
The agency's public affairs office, meanwhile, was preparing a statement about Buckley's classified report and apparently had promised an exclusive to a reporter. One CIA officer told CIA public affairs director Dean Boyd in an email, "Dean, please get to [redacted] right away and tell him he needs to post before noon or he will likely be scooped." There was also urgency, although not explained in the email, to get a copy of the statement to Evan Bayh "ASAP."
Brennan tapped Bayh, the Democratic senator from Indiana who formerly served as a member of the Senate Intelligence Committee, to head an accountability review board to determine the fate of the CIA employees who broke into the committee's computer network. (The five-member board also included a CIA senior intelligence officer, a CIA Office of General Counsel attorney, and another unnamed CIA official).
Evan Bayh. (Photo via Wikimedia Commons)
"I commission the Board to investigate the conduct of the five individuals referenced in the first paragraph and to provide recommendations regarding both their individual accountability and any systemic CIA failures the Board may find," Brennan wrote in a letter sent to Bayh on August 6, 2014. "I specifically direct the Board not to investigate the conduct of Senate staffers."
Bayh's investigation, however, would specifically probe the conduct and actions of Senate staffers.
Brennan followed up with another letter to Bayh a month later, addressing potential conflict of interest issues.
"In an effort to avoid any concern that my receipt of the [board's] findings and recommendations regarding the individual accountability of the five individuals, as well as subsequent determinations by me regarding appropriate action for those individuals, could raise an appearance of a conflict of interest, I have decided to recuse myself from that portion of the Board's work," Brennan wrote. "Instead, the Board should report its findings and recommendations to the Deputy Director of the CIA, Avril Haines, who will determine any appropriate action in consultation with Jim Clapper, the Director of National Intelligence."
A Google search had snowballed into an epic scandal.
* * *
The Accountability Review Board met for the first time on August 21, 2014, according to a copy of the redacted meeting minutes turned over to VICE News.
"The Board members were asked to assess completeness [of the OIG's report], gaps; and additional documentation and names of those for Board should consider for review," the minutes say. "Upon conclusion of deliberations, Subjects will be notified in writing that they may review draft findings of fact, judgment of performance, and accountability recommendation. Subjects have 5 business days from date of notification to submit a written response."
It's unclear how many additional times the board met. The CIA did not turn over other meeting minutes.
The board spent a little more than two months reviewing the matter. Bayh sent a five-page memo to Buckley on January 14 of this year — a month after the Senate finally released its torture report — advising him of the outcome of the accountability board's review. He rejected nearly every conclusion and finding contained in Buckley's report about the improper computer search.
The accountability board "recommended that no disciplinary action be taken against the five CIA personnel," Bayh wrote. "The Board found that the actions of the individuals were reasonable in light of their responsibilities in managing an unprecedented computer system containing millions of highly classified documents, and that the ambiguity surrounding the agreement between CIA and [the Intelligence Committee] for managing the system contributed to the matter under review."
Bayh's final report did conclude that Brennan gave "explicit instructions" to CIA personnel to "pursue all available options to determine how the [Panetta Review] documents came to be on the [Senate] side of the system."
Bayh didn't address the fact that the CIA's criminal referral against Jones and other Senate staffers was based on erroneous information. He also rejected Feinstein's assertions that there was a "common understanding" between the Intelligence Committee and the CIA governing the handling of the Senate's side of RDINet. While his report acknowledged the existence of the June 2 and June 4, 2009 letters Feinstein and Panetta exchanged, Bayh's report said it protected the committee's work from being examined by the CIA — but that it did not protect the committee's walled-off computer network. He also said the common understanding did not have a mechanism in place for addressing security concerns, even though Panetta wrote in his letter that any security concerns would be addressed "by our respective staffs."
Bayh did not respond to VICE News' requests for comment.
Buckley resigned from the CIA shortly thereafter. The agency says his departure had already been planned and was unrelated to his probe into the computer search.
Although he wasn't specifically tasked with looking into the actions of Senate staffers, Bayh's report was harshly critical of them, accusing staffers of improperly taking CIA documents on numerous occasions.
When Bayh went to Capitol Hill to brief Feinstein and her staff on his report last January, Feinstein and her staffers told Bayh they identified 15 "specific errors and omissions." Bayh promised to correct some, according to a letter Feinstein sent him on January 26, but he never did. Shortly after Bayh met with Feinstein, the CIA declassified and released both the accountability review board's report and Buckley's report, which was overshadowed by Bayh's exoneration of CIA employees.
Feinstein was not happy.
"Unfortunately, the [board's] report was released publicly only a few hours after our meeting, without any corrections," she wrote. "As predicted, the media coverage is repeating many of these errors and making false allegations against the [Intelligence Committee], its staff, and the Committee's Study. As you know from our meeting, I continue to believe that the CIA's unauthorized access to the... computer network was inappropriate and constituted a breach of our agreement with Director Panetta as well as the constitutional principle of the separation of powers. I hope that by providing this list, the public's understanding of this event will be more complete and accurate."
Feinstein did note that Bayh's report determined but downplayed that the Senate Intelligence Committee staffers likely gained access to the Panetta Review through a Google search.
After Bayh's report was released, Brennan finally responded to Feinstein's list of 14 questions she sent a year earlier — by telling her to see Bayh's report for the answers.
The CIA continues to cling to a claim that there wasn't an agreement barring the search of the Senate's computer network to justify the search, even though Brennan himself had admitted there was in the letter he drafted but didn't send to Feinstein and Chambliss.
"An Agency Accountability Board chaired by Senator Evan Bayh subsequently found that no discipline was warranted for the five CIA personnel under review because they acted reasonably under the complex and unprecedented circumstances involved in investigating a potential security breach in the highly classified shared computer network, while also striving to maintain the sanctity of [the Intelligence Committee's] work product," Trapani said. "Because there was no formal agreement — or even clear common understanding — governing the procedures to be followed in investigating a potential security incident in these circumstances, no course of action was free of potential complications or conflict. CIA leadership, in consultation with the Director of National Intelligence, accepted the Board's recommendations on accountability."
* * *
The feud between the Senate and the CIA hasn't subsided.
Some lawmakers are still demanding a formal, written apology from Brennan. Two months ago, senators Ron Wyden, Martin Heinrich, and Mazie Hirono wrote to Brennan demanding that the CIA director admit that the computer search had infringed upon the separation of powers between Congress and the executive branch, and to vow that it would never happen again.
"It is outrageous that Director Brennan has continued to hide from accountability and has dodged any explanation for the CIA's secret search of Senate files," Wyden told VICE News. "Director Brennan needs to acknowledge that CIA officials do not have the authority to hack into Senate files or to undermine Congressional oversight. Finally, Director Brennan needs to make clear that this violation of Constitutional checks and balances will never happen again."
According to a spokesman for Wyden's office, Brennan has not responded.
Follow Jason Leopold on Twitter: @JasonLeopold