Unanswered Questions in the CIA-Senate Dispute

The Department of Justice has announced that it will not launch full-fledged investigations into either the CIA’s allegations that Senate staffers mishandled classified information in the course of writing their study of CIA torture, or Senator Dianne Feinstein’s allegations that the CIA unlawfully spied on Senate staff. But a DOJ’s spokesperson’s statement that “[t]he department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation,” provides virtually no information about why it decided not to investigate.

There are any number of excellent reasons for DOJ not to pursue charges against Senate staff for conducting oversight. Still, the specifics matter. Did the Department of Justice exonerate Senate staff? Did it conclude that a criminal investigation into staffers’ performance of their official duties would violate the Speech and Debate clause? Did the Justice Department do anything that would protect staffers from further surveillance or retaliation by the CIA, now that there is no possibility of a criminal investigation? We don’t know.  Senator Dianne Feinstein has told reporters she is “couldn’t be happier” at the news that her staffers will no longer have a potential criminal investigation “hanging over” them. But given that the CIA likely controls staffers’ clearances, and has allegedly retaliated against employees for filing FOIA requests about much less sensitive matters, that reaction may be premature.

On the CIA side, as Senators Ron Wyden and Mark Udall have noted, there are even more questions. At a recent Senate hearing, representatives from the Office of Director of National Intelligence, FBI, and NSA said they would not consider it appropriate to search Senate computers without outside authorization. Why did the CIA feel that it could? Did DOJ make clear that such searches are inappropriate violations of separation of powers, even if they are not violations of criminal law?

Why did Director John Brennan believe it was appropriate for Robert Eatinger, who was so involved in the CIA program that he is reportedly mentioned over 1000 times in the Senate report, to refer Senate staffers to DOJ? Did  Brennan alert the White House to Eatinger’s role in the referral? What is the status of the CIA Inspector General’s report into the CIA’s alleged monitoring of Senate staff?

We recently learned from the Privacy and Civil Liberties Oversight Board that the CIA can search some NSA databases with few standards, and in some cases no audit trail. Are there any safeguards against the agency using this power to search for Senators, Representatives, or staffers’ communications or metadata?

Of course, the most important questions of all concern the torture report itself. When will the Senate see the redacted version, or at least receive information from the White House or CIA about what information is being redacted? When will the public finally get to read the report, and how much will we get to read? Has the Obama administration abandoned its argument that descriptions of individual CIA detainees’ treatment in captivity are classified? Is it attempting to black out other crucial information, like the detainees’ names, or the medical harms they suffered from “enhanced interrogation”, or information about the CIA providing false information to Congress or the Justice Department? The White House and the CIA will not answer these questions.

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