WHEN THE ESTABLISHMENT INVESTIGATES ITSELF
by BINOY KAMPMARK
EXONERATING spooks for improper conduct is a regular feature of the establishment. After all, you don’t convict your own, turning your nose at activities pursued under the grand, catch-all term of national security. From the start, the CIA review, established to investigate its own activities into spying on the Senate Select Committee on Intelligence, was always predictably constituted, with predictable outcomes.
The “accountability board” was chaired by former Senator Evan Bayh (D-Indiana), along with former Obama White House attorney Bob Bauer and, as anticipated, three senior CIA officers. The originating source of its convening was yet another predictable feature: the CIA itself (the board was convened in August 2014 by CIA Director John Brennan).
Its task: to investigate alleged misconduct of five CIA employees who improperly accessed computer data belonging to the SSCI under the Computer Fraud and Abuse Act and the Wiretap Act and make recommendations that, “future instances of the miscommunication and confusion that led to this controversy,” do not occur again.
The background to the review proved acrimonious. The SSCI had an issue over the CIA prying into its material on the agency’s rendition and torture program. The CIA, in turn, felt that the senators and their staff had obtained unauthorised access to agency documents and improperly dealt with classified material. The Department of Justice, sensing trouble, evaded the issue.
Last March, Senator Dianne Feinstein (D-CA) suggested that the CIA search may have violated a range of legal provisions, citing the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12333 prohibiting the agency from conducting domestic searches or surveillance.
The CIA, according to Feinstein, had become a power onto its own, effectively subverting the constitution. From the start, it hired, “a team of outside contractors – who otherwise would not have had access to these sensitive documents – to read, multiple times, each of the 6.2 million pages of documents produced, before providing them to a fully-cleared committee staff conducting the committee’s oversight work.” Naturally it, “proved to be a slow and very expensive process” (Truthdig, Mar 12, 2014).
The January 14th redacted report by the review board, termed the “Final Report of the Rendition, Detention and Interrogation Network Agency Accountability Board”, concluded in rather bland fashion that the entire affair had been a misunderstanding. That blandness also involved a good deal of hair splitting, riddled by legal dissembling. “The Board determined that while an informal understanding existed that SSCI work product should be protected, no common understanding existed about the roles and responsibilities in the case of a suspected security incident.”
It found that the “core” of that misguided understanding centred on “the establishment of SSCI shared drives that would be walled-off but also accessible to CIA IT staff for the purpose of IT network administration.” While “SSCI work product was often cited as protected… these were not clearly defined or agreed to by both parties.”
Evidently, areas of cognition vary in relationships between the intelligence community and the community that oversees it – understanding differs on whether it is informal, which can lead to breaches of trust, or “common”, in which case it is assumed to be firmer. Truth be told, the CIA did not particularly like senatorial staff digging in a rather dirty intelligence backyard.
Accordingly, the board found that “none of the five individuals under review by the board was responsible for this mistake, and two of them – the most senior – had expressly counselled that care be taken to avoid accessing [SSCI] work product.”
Reading between the lines, and you can only deduce that the senators and staff had to assume that they would be spied upon. (The names of who authorised such conduct have been redacted.) In the pecking order of the Republic, political figures investigating a body for alleged criminal conduct were the ones to be monitored. This attitude is outlined in so far as the CIA had “obligations under the National Security Act”, with a pressing legal duty to search the computers “for the presence of Agency documents to which SSCI staff should not have access.”
Various recommendations were made regarding the use of shared computer networks having classified material, though the agency retains the prerogative to define how those boundaries are to be charted. Expect more misunderstandings in due course. A specific omission from the review is the failure to explain the disappearance of material off the system, including the now famed Internal Panetta Review.
A standout feature that somehow undermines the constitutionally motivated anger of SSCI committee members lies in its inconsistent attitudes towards surveillance. Bulk gathering of data on US citizens, and non-citizens, has its uses, but keeping an eye on Congress, a body which has also taken its eye off constitutional erosions, does not. The question is one of degree: who are the greater rogues?
The exoneration of CIA employees may well sting, but it has its own institutionalised justifications. Even the president agrees. According to Barack Obama’s spokesman, Jay Carney, the president expressed, “great confidence in John Brennan and confidence in our intelligence community and in our professionals at the CIA” (Truthdig, Mar 12, 2014). The establishment simply got off the hook, again.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.