The White House is refusing to hand over top-secret documents to a Senate investigation into CIA torture and rendition of terrorism suspects, claiming it needs to ensure that “executive branch confidentiality” is respected.



In the latest development in the spiralling clash between Congress and the administration over oversight of the intelligence agencies, Barack Obama’s spokesman Jay Carney confirmed that certain material from the George W Bush presidency was being withheld for fear of weakening Oval Office privacy.

“This is about precedent, and the need, institutionally, to protect some of the prerogatives of the executive branch – and the office of the presidency,” said Carney.

“All of these documents pertain to and come from a previous administration, but these are matters that need to be reviewed in light of long-recognised executive prerogatives and confidentiality interests.”

A report published by McClatchy newspapers on Wednesday night said that Senate investigators were trying to obtain an estimated 9,400 such documents relating to CIA detention and interrogation after 9/11.

But the White House insists this is a “tiny percentage” of the material already available to the intelligence committee, and should not hold up the publication of its report into the CIA program, which is understood to make searing criticisms of the agency.

“Throughout this process, this administration has facilitated unprecedented access to more than six million pages of records,” said Carney. “As we have discussed with the committee, during the course of the review a very small percentage of the total number of documents have been set aside because they raise executive branch confidentiality interests. This very small number of documents should not, or would not, delay the completion of the committee’s report.”

In public, the White House has tried to stay out of a growing constitutional clash between Congress and the CIA over alleged interference in the investigation. Reuters reported that the White House chief lawyer, Kathryn Ruemmler, had tried to mediate in private between both sides in an attempt to “de-escalate” the tension.

But the admission that the White House is withholding key documents is likely to renew criticism that the Obama administration is failing to live up to promises to fully investigate a dark chapter in CIA history.

Carney said discussions were continuing with Senate staff over access to the documents, and may not require a final expression of executive privilege, which he said the Obama administration had only performed once before.

In a separate development on Thursday, one of the Senate’s leading CIA critics, Colorado Democrat Mark Udall, cleared the way for the replacement of its top lawyer.

Udall said he had lifted a procedural obstacle he had placed on the CIA’s nominee for its next general counsel, Caroline Krass. That sets up the departure of its acting senior attorney, Robert Eatinger, who is at the centre of this week’s extraordinary battle between the Senate intelligence committee and the CIA.



Krass had already cleared the Senate committee, but Udall put her on hold to gain leverage for the committee in its struggle for access to CIA documents relevant to its extensive study of the agency’s post-9/11 interrogation, rendition and detention program, which involved torture.



The Senate voted Thursday to confirm Krass, sending her to Langley at a time when relations between the CIA and the Senate have reached a nadir. While Eatinger was never going to be the agency’s permanent general counsel, he is now the first explicit casualty in the row between the CIA and its Senate overseers.



Eatinger, a longtime agency lawyer with counterterrorism experience, was cited on Monday by the panel’s chairwoman, Dianne Feinstein of California, in her seminal speech lashing out at the CIA. Without naming him, Feinstein indicated he was instrumental in the agency’s now-abandoned torture practices, and had been cited over 1,600 times in the classified Senate torture investigation.

Feinstein said Eatinger, whom senators have taken care not to name, had alerted the Justice Department to her staff’s removal of a CIA document from a classified facility – which both Feinstein and Udall cite as a conflict of interest.



Ahead of Krass’s arrival at the CIA, Udall called on Eatinger to immediately recuse himself from any internal matters related to either the torture inquiry or the Senate panel generally. “We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate intelligence committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said in a statement on Thursday.



In a statement, CIA director John Brennan said was “extremely pleased” that the Senate had confirmed Krass, and praised Eatinger as “an exemplary public servant who has demonstrated throughout his career exceptional competence and integrity”.

At Krass’s confirmation hearing in December, Udall publicly disclosed the existence of a document that has proved to be crucial to the committee’s fight with the CIA: a document the committee calls the “internal Panetta Rreview,” prepared for former CIA director Leon Panetta and listing internal memoranda and other materials the agency provided to the committee’s inquiry.



Committee staff had gained access to the document seemingly by accident, in a Virginia facility the CIA set up for the committee. According to Feinstein, the review document conceded many points in the committee review of the torture program that the agency contested, and, citing a history of CIA destruction of evidence, surreptitiously took a printout of the classified document to the committee’s safe in the Hart Senate Office Building.

In her speech on Tuesday, Feinstein said the CIA had conducted potentially unconstitutional and illegal searches of computers of congressional staffers investigating the agency’s interrogation and detention program.

She called the dispute “a defining moment for the oversight role of our intelligence committee”, while another veteran Democrat, senator Patrick Leahy, later described her speech as the most important any senator had made to the house.

For its part, the CIA has accused Senate staffers of conducting potential criminal activity, and the Department of Justice is conducting an investigation into all the claims.