- The Washington Times - Wednesday, January 21, 2015

When Sen. Dianne Feinstein took to the Senate floor last March, she told a harrowing tale of spying, intrigue and possible law-breaking — all by the CIA.

And the targets were her own Democratic staff, whom the then-Intelligence Committee chairwoman portrayed as innocent victims of a band of intrusive agency officers who penetrated the aides’ computer hard drives.

Sounding grave, the California Democrat said the CIA searches “may have undermined the constitutional framework” and violated federal criminal law. She said she had not gotten a requested CIA apology or an admission of wrongdoing.

This month former Sen. Evan Bayh issued his report on the same unprecedented cyberspy game between two branches of government. Mr. Bayh came to nearly completely opposite conclusions, creating a remarkable public disagreement between two former Democratic colleagues on the Senate Select Committee on Intelligence.

He was chairman of a CIA accountability board review that portrays the Feinstein staffers as the ones who first penetrated and snatched restricted CIA files. The staffers copied some and, as a committee Republican report said, they spirited material out of the CIA off-site in Northern Virginia — without authorization.

Mr. Bayh accused the staffers of “improper conduct” but added his job was not to investigate their exploits.

The CIA provided the office where the staffers were given access to millions of pages of secret documents on the agency’s detention and interrogation program of terror suspects. The Democrats later wrote a highly critical report on coercive techniques that they said did not work. Republicans disagreed, calling the report partisan and saying it lacked any context.

The Bayh report’s bottom line: The unnamed CIA officers acted reasonably when trying to confirm their suspicions that the Feinstein cadre took documents that the CIA had designated as privileged, a designation the White House counsel backed up. Mr. Bayh recommended no disciplinary actions. The Bayh report listed other transgressions by Mrs. Feinstein’s aides, one of whom was kicked off the committee search team.

But his most pointed criticism was directed at the CIA inspector general, David Buckley. The Bayh report said Mr. Buckley came to a series of erroneous conclusions, such as recommending criminal charges — a move rejected by the Justice Department.

Mr. Buckley, a former Senate and House Democratic staffer, announced his resignation days before the Bayh report came out and is scheduled to leave the post on Jan. 31.

The tale of two reports — Mrs. Feinstein’s and then Mr. Bayh’s — began in 2009. The CIA agreed to make available an unprecedented amount of documents to the Senate committee by way of a shared hard drive on a special Rendition, Detention and Interrogation Network (RDINet), also called Spartan Gate. The site held a huge collection of cables, emails and memos that describe how the CIA interrogated al Qaeda suspects after the Sept. 11, 2001, attacks on America.

“The creation of the RDInet was groundbreaking in that it provided SSCI [Senate Select Committee on Intelligence] staff members with full, un-redacted access to millions of the agency’s most sensitive operational materials,” the Bayh report said.

Democratic staffers (Republicans pulled out of the probe) could retrieve and read materials stored on the CIA’s side of the hard drive.

Of critical importance was one rule: Each time a Feinstein staffer logged in, he or she consented by clicking an “OK” button on a splash screen to CIA monitoring.

“The agency was responsible for securing this highly sensitive material from unauthorized disclosure,” the Bayh report said. “SSIC staffers were, or should have been aware of, CIA’s monitoring of RDInet for security purposes.”

The aides also used a walled-off drive for their work product, such as notes or emails.

Staffers go rogue

During 2009 and 2010 two staffers went a bit rogue. One brought a camera into the CIA off-site and refused to let the CIA inspect it. That person was removed. Another staffer circumvented the no-print restriction using spycraft so sensitive that the Bayh report censored it.

In early January 2014, as the staffers were writing a draft report and submitting it to CIA, officers came to a belief they had gained access to an off-limits document called the “Panetta Review.” Former Director Leon Panetta had asked for a synopsis of all the interrogation documents. The Bayh report said the CIA deemed it outside the Senate investigation’s scope and that Feinstein staffers knew this.

The CIA thus took the momentous step of searching the committee side of the hard drive and spotted the Panetta Review.

This kicked off a flurry of debate and meetings inside the Langley headquarters that eventually reached CIA Director John Brennan. They faced a dilemma: confront Mrs. Feinstein directly or do a more extensive investigation to first learn how the unauthorized files ended up in the Senate hard drive.

They opted for more snooping and brought in the agency’s Cyber Blue Team, which was able to determine that a particular staffer had found 166 off-limits files and moved them to Senate custody on Nov. 9, 2010. The team speculated it was done using a Google search engine. The Panetta documents were handed out to four staffers and printed.

Republican committee members, in their report last month, noted what happened next. “Committee majority staff knowingly removed the Panetta Internal Review, a highly classified, privileged CIA document, from a CIA facility without authorization and in clear violation of the existing agreed-upon procedures by the Committee and the CIA.”

After three CIA searches, Mr. Brennan called an emergency meeting with Mrs. Feinstein, who, armed with the knowledge of the CIA searches and following press reports, took to the Senate floor in March.

“To be clear, the committee staff did not ‘hack’ into CIA computers to obtain these documents,” she said. “The documents were identified using the search tool provided by the CIA to search the documents provided to the committee.”

And even though the White House had agreed with the CIA, Mrs. Feinstein said, “We believe we had every right to review and keep the documents.” She called “lawful” transporting the documents from the CIA to a secure site in the Hart Senate Office Building.

“The staff members who have been working on this study and this report have devoted years of their lives to it — wading through the horrible details of a CIA program that never, never, never should have existed,” she said.

Former Sen. Bayh saw it differently.

The Bayh report said there had been “improper conduct” by Feinstein staffers leading up to the CIA search.

It called decisions to search the Senate-side hard drive “reasonable given the embarrassment to the agency and harm to the agency SSCI relationship that would have resulted from a false allegation.”

“Great certitude was understandably desired before raising it with the Senate and pursuing formal allegations of wrongdoing,” Mr. Bayh said.

The acting CIA general counsel told the board, “[I]t is within agency responsibilities to determine if someone took something.” He tried unsuccessfully to persuade the Department of Justice to file criminal charges against the Senate staffers.

Mrs. Feinstein’s response to Mr. Bayh’s conclusions focused on the part of his report that criticized agency employees for looking at a few staffer emails in a walled-off work product site.

“Let me be clear,” she said, “I continue to believe CIA’s actions constituted a violation of the constitutional separation of powers and unfortunately led to the CIA’s referral of unsubstantiated criminal charges to the Justice Department against committee staff.”

“I’m thankful that Director Brennan has apologized for these actions, but I’m disappointed that no one at the CIA will be held accountable. The decision was made to search committee computers, and someone should be found responsible for those actions.”

Former House Permanent Select Committee on Intelligence Chairman Pete Hoekstra, Michigan Republican, has often complained how difficult it was to pry information out of the intelligence community. He sides with Mrs. Feinstein.

“I find it absolutely outrageous the CIA went into Hill staff computers that were allocated for use by congressional staffers. That the CIA went into them and actually read some of the materials on those computers I think is absolutely outrageous,” Mr. Hoekstra said.

Concerning David Buckley, the CIA inspector general, the Bayh report was particularly critical of his decision to send a criminal referral to the Justice Department. Mr. Buckley suggested the CIA employees violated the Wiretap Act and the Computer Fraud and Abuse Act.

“The [office of inspector general] provided no rationale for either referral,” Mr. Bayh wrote.

He said Senate staffers were working on a CIA network and were told they were subject to monitoring and that “the agency has a legal duty to protect” its materials “from unauthorized disclosure.”

The Bayh report also said the IG kept inadequate records of investigative interviews, making it difficult to determine what was actually said by witnesses. He said Mr. Buckley’s conclusions that two CIA technicians were not candid “were unsupported by the evidence.”

Dean Boyd, director of CIA public affairs, told The Washington Times, “We have full faith in the CIA Office of Inspector General and continue to have a positive working relationship with that office.”

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