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MEMBERS ONLY: The White House Knew About CIA Spying On the Senate, But How Much?

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Photo Credit: AFP/Brendan Smialowski

Something smells mighty fishy at the Central Intelligence Agency.

A newly released Inspector General's report has implicated the White House in possibly illegal CIA spying on the five-year, $40 million congressional investigation that became widely known as the "torture report." At the time news of the espionage operation became public in early 2014, director John Brennan first denied that the CIA had spied on Congress at all and then denied he had ordered it. But according to the new report, Brennan had explicitly authorized "whatever means necessary" to figure out how congressional staffers obtained the Panetta Review -- a secret CIA document harshly criticizing torture tactics on terrorism detainees -- after consulting the White House.

Here are the basics of what happened (kudos to The Huffington Post'sAli Watkins for doing some heavy lifting). In January 2014, the CIA learned that the Panetta Review may have made its way to congressional staffers working at a secure, off-site CIA facility where then-Senate Intelligence Committee chair Dianne Feinstein's (D-Calif.) investigation was being conducted. In order to confirm that Congress had its paws on the report, the CIA hacked into the staffers' secure side of the computer network and, according to The Guardian, "conducted keyword searches and email searches on committee staff while they used the network." The result was confirmation that Feinstein's team had a document they shouldn't have -- a situation described by the CIA as a security breach and by Feinstein as necessary to prevent the CIA from destroying it.

In the initial stages of the CIA investigation an agency lawyer talked to Brennan, who he advised to keep quiet about the matter to both the White House and the Senate Intelligence Committee while CIA personnel determined how the document had gotten into Congress' hands in the first place. Brennan told the lawyer, who was responsible for the security of the congressional network, to "pursue all available options." The next day, Brennan met with the laywer and informed him that he had met with White House Chief of Staff Dennis McDonough, but wanted to keep the matter secret from Congress until the CIA got the intel it wanted.

The lawyer told the Inspector General that during the second meeting, Brennan repeated his order "to use whatever means necessary to answer the question of how the documents arrived on the [Senate Select Committee on Intelligence] side of the system so that his communication with the Hill could occur." Eventually, Feinstein found out and accused the CIA of breaking the law and violating constitutional principles. Besides a few strained apologies, no one was punished -- not Brennan, not the CIA staffers invovled and certainly not the White House, whose involvement was not known until now.

As Watkins writes, on Wednesday a separate CIA Accountability Review Board (ARB) investigation concluded that a "misunderstanding ... arose because [Brennan] did not appreciate what forensic techniques were necessary to answer his questions." The ARB report takes the position that the discrepancy in intent actually didn't matter, because the CIA had technically never signed a written agreement with Feinstein's committee that the network was "non-inviolable." The ARB and Inspector General's reports stand in direct opposition to one another.

All the while, the CIA had been fighting to kill the torture report, which ultimately revealed horrible secrets about the CIA's treatment of prisoners. The Panetta Review documents were instrumental in revealing many of these abuses as well as indicated Brennan and his agency were continuing to lie about the efficacy of torture.

Here are three possible explanations of what happened:

1) CIA personnel acted without authorization

This is essentially Brennan's side of the story. In this scenario, the CIA lawyer involved seriously misinterpreted Brennan's orders and ordered a much more invasive search than he originally intended. This would appear to line up with Brennan's denials that he had used the phrase "whatever means necessary," as well as the ARB's finding that the director did not fully understand what he was ordering. It also meshes nicely with the ARB's argument that the spying was totally legal because the agency was responsible for the network's security in the first place. So, no harm done except for a pretty huge mistake, and the inspector general's report is riddled with errors.

This does, of course, make Brennan look pretty bad. How does the CIA director accidentally order the agency to spy on Congress? Even this favorable treatment is not flattering. This explanation does exonerate the White House, because Brennan couldn't have told them about a big "oopsies!" he didn't know about yet.

2) Brennan knew what he was doing 

In this scenario, Brennan knew exactly what he was ordering his subordinates to do and is still lying about it. This viewpoint is backed up by the fact that multiple meetings were held over the issue, as well as the fact that it's hard to believe Brennan, a 25-year CIA employee, was somehow making repeated obvious mistakes.

The Intecept's Dan Froomkin describes the scenario thusly: "Brennan was the prime mover behind a hugely inappropriate assault on the constitutional separation of powers, and continues to get away with it." Brennan wanted to figure out how Congress gained access to some very embarrassing documents explicitly laying out criminal behavior on the agency's part over the boundaries of the law. While pursuing that objective, he deliberately took steps he knew might infuriate Feinstein and break other laws. This would explain the director's repeated denials before Congress that the activities in question occurred, as well as the ARB report claiming it was a "misunderstanding" -- the CIA is covering its ass.

By the way, the inspector general involved abruptly resigned this month, coincidentally not long after the ARB report mocked his own conclusions.

3) White House knew about it too

This possibility is the most troubling, because it would essentially mean that the White House and perhaps President Obama were in on or even ordered it, and kept the CIA's legally murky operation under wraps until after Feinstein found out.

The details of the Brennan/McDonough conversation aren't described in the report, but the CIA lawyer in question apparently repeatedly advised Brennan not to inform the Obama administration of their investigation.

Here's how the lawyer described his advice to Brennan about informing the White House: "[I]t could later be viewed as WH interference in a potential criminal investigation." In a subsequent meeting, he said that "merely consulting the White House would place the Director in a bad light, making it appear he was politicizing a potential criminal matter."

If the White House knew that the CIA was snooping around congressional computers and did nothing to stop it, it's somewhat suspicious given the Obama administration's strained relationship with Feinstein's Senate Intelligence Committee and occasional opposition to revealing too much. Around the same time, the White House was busy suppressing the report. He didn't commit to its public release until March, and administration officials as senior as John Kerry were trying to delay it just days before its release. Who knows how far the trail into the White House goes, but it certainly seems possible that the administration lied about its involvement.

Either way, Obama is ultimately responsible for the CIA's conduct given that it's an executive agency and he appointed Brennan in the first place. It doesn't seem the president had many problems with it anyhow, given that the White House continually backed him after the revelations of spying. The intelligence state is alive and well, and as opaque as ever.