DOJ’s Leaky SCIF Double Standards

McClatchy’s latest in the CIA-Seante Intelligence Committee fight reports that FBI is now investigating Senate Intelligence Committee staffers for unauthorized removal of classified information from CIA’s SCIF.

The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.

[snip]

The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.

[snip]

The investigation request by the CIA general counsel’s office is one of two criminal referrals sent to the Justice Department in connection with the committee’s 6,300-page report, which remains unreleased nearly 15 months after the panel voted to approve its final draft, according to those familiar with the case.

The second was made by CIA Inspector General David Buckley, they said. It relates to the monitoring by the agency of computers that the committee staff used to review millions of classified documents in the electronic reading room set up inside a secret CIA facility in Northern Virginia, they said.

Wow. This removal of a document from a SCIF containing torture documents sure escalated quickly.

Which is particularly remarkable given DOJ’s past response when torture documents walk out of a SCIF, even their own one.

Recall that sometime between 2005 and 2009, at least 10 and possibly as many as 31 documents critical to discussions over the legality of torture disappeared from the Office of Legal Counsel’s very own SCIF.

Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

Not only did DOJ apparently do nothing about their own leaky SCIF, they took some time to even tell the ACLU about it. What’s a few sensitive torture documents escaping from their SCIFs after all?

But now, when it’s the CIA being compromised rather than the CIA doing the compromising, things quickly escalate to potentially criminal investigations.

DOJ seems to have a remarkably inconsistent standard response when torture documents disappear from SCIFs. I wonder why that is?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

23 replies
  1. orionATL says:

    well, i guess we know now whose side obama is on,

    or should i just say, is listing toward.

    remember though, this whole business is about the cia distracting from the fact that the cia lied to congress – again (about the accuracy of the ssci torture report.

  2. joanneleon says:

    I just read that article. Left me feeling nauseous.

    Dueling investigations. ‘If you talk about how we spied on our oversight committee or make a fuss, expect your staffers to be investigated and maybe indicted.’ Retaliation. That’s how I see it. But maybe intimidation too.

    What does the CIA expect to get out of this? Get them to shut up? Bit late for that. Retaliation? Probably. Is there even more to it than that? Muscling the SSCI into keeping the torture report classified. That seems a likely motive.

    The thing that makes me even more nauseous is that it seems pretty clear whose side Obama and his DoJ are on.

  3. GKJames says:

    And solely in response to allegations of CIA surveillance of the Committee. Once that cat was out of the bag, it was time to go on the offensive.

  4. emptywheel says:

    @joanneleon: It’s very similar to what happened with the John Adams Project investigation. They were close to IDing the torturers using independent information, so CIA had them investigated, which is what led to John Kiriakou going to jail.

    That investigation was ulimately led by Pat Fitzgerald. This one is led by Fitz’ buddy Jim Comey.

  5. orionATL says:

    sooner or later our brain-dead congress is going to have to revive itself and take the executive on for usurpation of constitutional authority.

    no wait, that never happens in modern american politics. everything is smoothed over in talks.

  6. orionATL says:

    maybe we’ll have a debate over whether congressional emlpoyees are federal employees under the fraud and abuse act.

    all of which will be a diversion from the fact that the torture program was determined a failure by both the congress and the cia.

  7. OSS says:

    It will be interesting to compare how ssci staffers are run through the legal system compared to Sandy “Socks” Berger. Somehow I suspect it will be more than probation and a small fine.

  8. C says:

    @joanneleon: Well in order to hold sensitive positions, even for Senators, or to work in many areas of government you need a security clearance. Being investigated for taking docs or receiving them would cause that to be lost. Thus this action would seem to be a means of sending a warning not to the Seantors who are likely immune but to their staff who do all the actual work and will pay the actual price.

  9. TomVet says:

    I say it’s about time this country revive public hangings on the town square. An all day event for the whole family like the old days. I’m darn I know sure where I would start.

  10. Malabo on the Potomac says:

    At least the constitutional crisis is over. The executive branch sicced its Cheka on the legislature for insufficient deference in investigating serious crimes of concern to the international community. The constitution’s shitcanned and the COG regime is firmly in place.

  11. HotFlash says:

    Interesting. Looks like Congress vs CIA. Bets, anyone? My money’s on the CIA. I don’t like it, I just think it’s the way to bet.

  12. posaune says:

    I have a vague recollection of Gonzo — in the days of his hundred-fold “I don’t remembers,” before the Senate Judiciary Committee — offering some pathetic testimony about taking papers home from his safe at DOJ. Now, I’m not like Marcy, or even close, so this detail is hopelessly lost from my mind. But weren’t those papers about Gitmo and rendition? Anybody remember? And, uh, nothing ever happened to Gonzo, did it?

  13. qweryous says:

    @posaune:

    Washington Post reported the following:
    “Former attorney general Alberto R. Gonzales improperly handled classified information about some of the government’s most sensitive national security programs, …
    … When Gonzales, then White House counsel, moved to become the Justice Department’s top official in early 2005, he failed to secure the notes in a sensitive compartmentalized facility, the inspector general has concluded. Gonzales kept the notes in a safe in his office and at times took them to and from work in a briefcase — practices that violated protocols for the handling of classified materials, according to people familiar with the report.

    In a memo to the inspector general, Gonzales’s advisers characterized the episode as an unintentional mistake and a technical violation of the rules.”

    The additional particulars reported the next day in the Washington Post include a mention of classified documents concerning “detainee interrogation programs” and the proffered explanation:

    “Gonzales improperly carried notes about the warrantless wiretapping program in an unlocked briefcase and failed to keep them in a safe at his Northern Virginia home three years ago because he “could not remember the combination,” the department’s inspector general reported.”

  14. mrsunshine7 says:

    @orionATL: CIA’s actions may have been ordered by Obama as part of the Insider Threat program. We’ve already learned that words like “relevant” and “collect” have a common definition and a national security definition so it’s not much of a leap to claim that the CIA while monitoring it’s own employees and contractors accidentally or intentionally was monitoring the committee staff as well.

    From a McClatchy DC story on the Insider Threat program 6/20/13:

    It emphasizes leaks of classified material, but catchall definitions of “insider threat” give agencies latitude to pursue and penalize a range of other conduct.

    The Obama administration already was pursuing an unprecedented number of leak prosecutions, and some in Congress – long one of the most prolific spillers of secrets – . . .snip

    Government documents reviewed by McClatchy illustrate how some agencies are using that latitude to pursue unauthorized disclosures of any information, not just classified material.

    Read more here: http://www.mcclatchydc.com/2013/06/20/194513/obamas-crackdown-views-leaks-as.html#storylink=cpy

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