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Reports detail White House role in CIA-Senate 'spying' flap

Central Intelligence Agency Director John Brennan's decision last year to quietly flag White House Chief of Staff Denis McDonough to a developing showdown with the Senate drew repeated warnings at the time from a CIA lawyer who said such contact was unwise because it might undermine a criminal investigation or appear to do so, a report released Wednesday revealed.

A memo attached to a report prepared by CIA's Office of Inspector General and apparently written by a CIA attorney not identified in the report says the lawyer delivered the warnings after Brennan told McDonough last January that the CIA was investigating whether Senate staffers breached security restrictions in a CIA computer system set up to maintain documents about the spy agency's detention and interrogation program.

"Saturday afternoon, Jan. 11, [2014], I took a call at home from the Director, who informed me that he had discussed the breach with WH COS Denis McDonough," the unnamed lawyer wrote in the memo. "I cautioned that discussing this matter with the WH, at this stage, was problematic, as it could later be viewed as WH interference in a potential criminal investigation. He thanked me for my efforts and reiterated that he wanted answers in days, not weeks."

In the six-page memo, marked as a draft and attorney-client privileged (and posted here), the author returns two more times to his concerns about contact with the White House. The writer says tipping White House or Congressional officials off to the investigation could result in a heads up to Senate staffers, whom the author believed may have committed crimes by possibly breaking into parts of the CIA network without authority.

"I repeatedly counseled the Director, as well as [redacted] and [the Director of the Office of Congressional Affairs], that it was unwise to ask the WH for direction as to a possible criminal investigation," the memo says. "If the WH were to order the inquiry stopped, it could constitute an act in furtherance of obstruction of justice. At the least, it could be interpreted that way by Congressional critics and the press. Merely consulting with the WH would place the director in a bad light, making it appear that he was politicizing a potential criminal matter."

"I also repeatedly counseled that informing [Senate Intelligence] Committee leadership of the potential breach at this stage would result in the potential targets of the investigation—[Senate Intelligence Committee] staff—being informed of the investigation, and would permit them to 'get their story straight' prior to being interviewed by Agency security officers or law enforcement, a practice that would not be viewed as appropriate by criminal investigators," the CIA lawyer wrote.

After the lawyer expressed discomfort with Brennan's approach during a senior staff meeting, the director called the lawyer in to express appreciation for his work and to apologize for seeming "brusque," the memo recounts. "I thanked [Brennan] for his consideration, but noted that any discomfort I had concerning this matter was not related to his demeanor at the January 13 meeting, but rather stemmed from a concern that I had not adequately or with sufficient force conveyed what I perceived as the legal risks inherent in his chosen course of action."

The lawyer went on to say that he again recommended to Brennan not to discuss the probe with the White House. The memo doesn't say explicitly what Brennan did or said about the advice.

The Justice Department eventually declined to prosecute or even open a formal investigation of the CIA claims, as well as the Senate's claims of illegal snooping on its work.

A White House spokeswoman declined comment on the report soon after it was released Wednesday along with a CIA Accountability Board review that concluded no CIA personnel should be disciplined for their actions during the investigation, which then Senate Intelligence Committee Chairman Sen. Dianne Feinstein (D-Calif.) denounced last year and again Wednesday as a breach of the separation of powers.

The Accountability Board report also discusses White House involvement in earlier disputes between the committee and the CIA over removal of documents from computers or hard drives used by Senate staffers conducting the review of the interrogation program.

One incident described is from 2010, when the CIA removed 926 documents from the committee's "side" of a shared network set up to handle the document review being conducted by Senate staffers. CIA officials said the documents were not properly screened for possible claims of executive privilege, but Senate staffers objected to the records being removed after the staffers had access to them and had apparently begun to review them. The White House was pulled into the fight.

"The WH is not inclined at this point to ask CIA to categorically replace all the documents that were pulled in large part because the mistake was clerical in nature," a CIA lawyer wrote in an e-mail quoted in the Accountability Board report, which says most of the documents were eventually returned but some never were because they were deemed privileged. (Or potentially privileged, since the White House has maintained that no formal privilege was ever asserted.)

Another e-mail says the White House sometimes requested checks of what was on the Senate's "side" of the computer wall. White House lawyers were said to be trying to avoid claiming privilege over a document that was already available to the Senate. "We would like to continue to honor WH requests to check the reading room's holding [sic] when they ask about a specific document. Are you OK with us continuing to do so?" an unnamed CIA lawyer wrote to an unidentified party on June 7, 2010. It appears such checks continued but the report is unclear on that point.

The report says the White House eventually told Feinstein "that documents should not have been removed without notice to the Senate and no such removals should occur in the future."

One of the five members of the CIA Accountability Board was Bob Bauer, an attorney who served as White House counsel at the time of the 2010 dispute. He declined an interview request about whether that link represented a conflict of interest.

However, one person familiar with the board's work said Wednesday that there was no conflict because the board "didn't investigate that [disagreement] and it was resolved in 2010."

The report argues that the earlier episode demonstrated that Senate staffers and the Intelligence Committee's leadership were aware that CIA was in some respects monitoring activities on the Senate's "side" of the computer system. The report does not claim that Feinstein ever consented or agreed to that kind of snooping, although it does note that when users signed onto the system they were advised that it was subject to monitoring. In fact, Feinstein has said that she and her aides vigorously objected to such monitoring.

"The only reason [the 2010 dispute] was in the report was trying to show the overall context of how, over time, the Senate and the CIA dealt with these issues," said the source, who spoke on condition of anonymity. "It was only included as a contextual matter. There was no conflict there because it didn't present any impediment to an objective review of these [more recent] events."

The other members of the board were Sen. Evan Bayh (D-Ind.) and three unidentified CIA officials. Another source familiar with the situation said all the panelists were selected by Brennan.

Bayh said in a statement Wednesday that the board's findings and recommendations were all unanimous.

UPDATE (Thursday, 9:42 A.M.): This post has been updated to note Feinstein's objection to CIA monitoring of the systems used by committee staffers.