Congress has passed laws to protect whistleblowers from retaliation, but what about Congress’ own staff? That’s something Sen. Sheldon Whitehouse (D-R.I.) would like his colleagues to address, to ensure Congress can perform its constitutional oversight of the executive branch.
The fact is, when the legislative branch is investigating an executive branch agency, the agency may not be pleased with the investigators find. The agency may even go as far as trying to stymie the investigation. That’s what Whitehouse believes may have taken place when he was on the Senate Select Committee on Intelligence, looking into the Central Intelligence Agency’s (CIA) Detention and Interrogation program. During their investigation, committee investigators became the target of a CIA-initiated criminal referral. Whitehouse called it an attempt at intimidation.
He raised the issue earlier this month in a Judiciary subcommittee hearing on the federal separation of powers. He also discussed his concerns on Federal Drive with Tom Temin.
Whitehouse said his concerns began in 2009, when the Senate Select Committee on Intelligence started looking into reports of unorthodox interrogation techniques being used by the CIA. Conducted on CIA property and using a network search tool provided by the CIA, committee staff located documents the CIA apparently had not intended to make available for review.
The documents found contained an internal CIA assessment of the interrogation program known as the “Panetta Review,” which called into question many of the CIA’s statements to Congress about the scope and brutality of the so-called “torture program.” Its inadvertent release to committee investigators caused considerable alarm within the CIA.
In response to the realization that Senate investigators had obtained access to the Panetta Review, CIA personnel and contractors proceeded to access a computer network that had been set-up exclusively for the committee’s use. They searched the network and reviewed the email of Senate staff without their permission.
Upon learning of the CIA’s unauthorized access, the CIA’s inspector general conducted an investigation and made a referral to the Department of Justice — based on the judgment that the CIA’s search of the Senate’s computer network was a potential crime.
However, in February 2014, the acting general counsel of the CIA submitted to the Justice Department his own criminal referral, alleging that committee staff had violated the federal hacking statute by accessing the Panetta Review documents.
Whitehouse said that since the computer had been set up by the CIA on CIA property exclusively for the committee’s use, it appeared the CIA inadvertently put the Panetta Review into the searchable database. “I think they were not even aware of it,” he said. “That caused the CIA to think somehow the committee investigators had hacked their system.”
To him, Whitehouse said it looked like either a cover-up for incompetence or tit-for-tat intimidation. “It was at that point that we began to see things go haywire, and the potential for the executive branch to abuse its authority deliberately became very apparent.”
On the floor of the Senate in March 2014, Intelligence Committee Chairman Sen. Diane Feinstein (D-Calif.) called the CIA referral unfounded and described it as “a potential effort to intimidate [Committee] staff.” It took the Justice more than five months to clear the committee staff and announce that no investigation would be opened.
That time-lag was harmful to the investigation, said Whitehouse, as well as the investigators. Not only did the referral delay the findings of investigators being brought to light, said Whitehouse, it hindered the staff in the performance of their duties and caused them personal stress.
“The staff was very disabled in their ability to respond to even basic questions from congressional members. Anyone who has criminal charges lodged against them are told by their lawyers to (remain silent),” said Whitehouse. “It put the staff in the terrible position of either not doing their job as committee staff, or violating the standard legal advice against self-incrimination.”
To make things worse, Whitehouse said the staff was put in the position of having to pay for their own lawyers. “And because of the Gifts Act, committee members aren’t allowed to help them with their legal bills, and there’s no one going to offer to help them pro bono. So the price that was paid by these very hard working, very talented, very honorable staffers was really apparent.”
Whitehouse said legislation providing for pro bono legal representation would be one potential remedy to the quandary. Another, he said, would be to put some kind of restraints on the criminal referral in the first place. Whitehouse suggested establishing a time frame during which an attorney general has to make a decision on bringing charges, so as not to hinder the congressional oversight process.
“The fact that this was done in apparent retaliation for what the inspector general had done to the CIA made it look like there was an ulterior motive. And the fact that the individual who had sent the referral (to Justice) was a significant subject of the torture report creates a clear conflict of interest. It’s essentially someone trying to disable an investigation in which he is a subject,” Whitehouse said.
Whitehouse said there needs to be a check in place to prevent “fanciful” charges from being brought. “All that you really need is a good relationship between the executive official and the attorney general, and the attorney general doesn’t even need to act on it,” he said. “He can just sit on the referral disables the performance of the duties of the Congressional investigative staff.”
While Whitehouse said he isn’t trying to determine what the CIA intended to do in this particular case, he said it does describe a real-world how-to example about how the executive branch could abuse the oversight process. He said he wants to focus on potential abuse in the future by creating protections for staff carrying out their legitimate legislative duties.