Rock Bottom

The relationship between the CIA and its Senate overseers has never been worse.

Since the two congressional committees that oversee U.S. intelligence agencies were established almost four decades ago, a set of unspoken agreements, rather than hard-and-fast rules and laws, has governed how members of Congress and their staff obtain access to information about some of the nation's most highly classified national security programs. But now, in a rare public feud between the Senate Intelligence Committee and the CIA over its interrogation of suspected terrorists, each side accuses the other of violating those agreements, and the system of checks and balances that binds the two sides together has been strained more than in any period in recent memory.

"This might well be the most acrimonious public moment between the CIA and a Senate committee since the time of the post-Watergate Church Committee investigations nearly 40 years ago," said former Justice Department lawyer Dan Metcalfe, referring to one of two congressional investigations of domestic spying and other abuses by the CIA, led by Sen. Frank Church (D-Idaho), that gave birth to the committees and the modern system of intelligence oversight. In his earlier role as director of the Office of Information and Privacy, Metcalfe guided all federal agencies on sensitive and classified disclosure issues from 1981 to 2007. In that period, he said, he could not recall a time when CIA-congressional relations plunged to such caustic depths.

In interviews, ten current and former congressional staff members and U.S. government officials painted the same grim picture: The relationship between the CIA and its Senate overseers has been poisoned amid dueling accusations over one of the darkest chapters in the spy agency's history. (Relations in the House, where that chamber's intelligence oversight committee hasn't launched an aggressive investigation of the interrogation program, have been more harmonious.) The CIA believes that Senate staff working inside an agency facility in Northern Virginia improperly removed classified documents that the committee was never supposed to see because they fell outside the scope of the initial congressional inquiry and were protected by executive privilege.

For their part, several Democratic senators on the committee say that the documents vindicate their own investigation, which concludes that the CIA's torture of detainees failed to produce any useful information about potential terror attacks. They also accuse the CIA of effectively spying on committee staffers by improperly examining the computers that they had used to review millions of pages of classified material in the CIA facility.

Both matters have been referred to the Justice Department, and the FBI has reportedly opened an investigation into the CIA's allegations that the Senate staffers illegally removed the classified material, which consists of documents created after the interrogation program ended and thus technically fall outside the scope of the committee's inquiry. Referral to a law enforcement agency that investigates illegal disclosures of classified information marks a stark departure from the two sides' standard, somewhat genteel ways of settling disputes over the conduct or pace of an investigation, current and former officials said.

"These matters are typically handled internally," Metcalfe said, echoing former congressional staff members. Said one, "If you think a staffer's gone out of bounds, you call the senator [he works for] and settle the problem. That's the way it's done." The former staff member called the CIA general counsel's decision to refer the document removal to the Justice Department "pretty outrageous."

A former intelligence official remarked that if a committee staffer authorized to be in the CIA facility removed a classified document in violation of the ground rules of the investigation, it may have been a mistake in judgment, but it wasn't "a crime."

Senate Democrats have expressed dismay at allegations the CIA monitored the work of Senate staff, who were required to do their work in an agency facility rather than in a highly-secure suite of offices in the Hart Senate Office Building on Capitol Hill. Such an "off-site" arrangement isn't unheard of, but it's rare. One former congressional staff member could only recall one instance in the past ten years in which he had to visit a CIA facility to review documents.

"These allegations have serious constitutional implications that go to the heart of the separation of powers, and I intend to monitor the situation closely," Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said in a statement last week. Senate Armed Services Committee Chairman Carl Levin (D-Mich.) also said last week that "such activity, if it occurred as alleged, would impede Congress's ability to carry out its constitutional oversight responsibilities and could violate federal law."

A spokesperson for Dianne Feinstein (D-Calif.) the chair of the Senate Intelligence Committee, declined to comment.

CIA Director John Brennan has called allegations that his officers spied on Senate staffers "spurious" and "wholly unsupported by the facts." In a statement to Foreign Policy, CIA spokesperson Dean Boyd said, "The CIA believes strongly in the necessity of congressional oversight and we continue to cooperate closely with all our oversight committees." He said matters related to the committee's investigation of interrogation, detention, and rendition of suspected terrorists have "not prevented us from working productively with [the committee] on a whole range of matters -- from Ukraine to counterterrorism to Syria. In fact, CIA supports more than 1,000 engagements with Congress each year."

To be sure, the Senate committee has been largely supportive of the intelligence agencies on other controversial matters, most notably electronic surveillance of foreigners and collection of Americans' phone records by the NSA. But the CIA's interrogation program has been a particularly contentious one, and has also divided committee Democrats from Republicans, who largely have dismissed the still-classified and unpublished report and don't support its conclusions.

The spat has left some veteran spies shaking their heads. Three former senior intelligence officials said that the behavior by the committee and the CIA was out of character and not in keeping with the historic practice of giving staff members' the leeway they need to conduct oversight while respecting the CIA's obligation to protect classified information.

According to a report by McClatchy, the agency only examined the computers used by committee staff after senators demanded access to a set of documents that fell outside the agreed upon range of dates to which the committee was supposed to have access, raising the question of how the committee staff even knew the documents existed. That version of events is a far cry from earlier reports which painted a picture of an out of control CIA that spied on staff members, or monitored their searches in real-time, to obstruct the Senate probe.

Still, the three former intelligence officials, who all have experience working with committee staff, said the agency shouldn't have queried what documents Senate staff were examining because it violated a basic, if largely unspoken rule about committee investigations: that staff should be free of any interference by executive branch officials they're charged with overseeing and should avoid even the appearance of meddling with an inquiry.

Another former intelligence official said that the CIA's decision to refer the matter to the Justice Department could easily be interpreted as an attempt to intimidate congressional staff from pressing for access to information about other sensitive programs. And another official, who is generally critical of the committee's report, said the agency had crossed a line. "The CIA should not have done what they did if they went back and looked at their searches."

Tensions between the CIA and the Senate are nothing new. Former staff members said that on previous occasions, the agency has withheld information that senators felt they had a right to see. "I've seen the CIA refuse to provide information. I've seen them provide it too late to be useful to senators," said Greg Thielmann, who has worked on both the Senate Intelligence Committee, as a senior professional staff member, and as a senior official in the State Department's Bureau of Intelligence and Research.

One former congressional staffer said that after an air strike on a Syrian nuclear reactor in 2007 -- which was later attributed to the Israeli military -- he was refused access to any intelligence about Iran's or North Korea's potential involvement in aiding the Syrian nuclear program. From the CIA's perspective, restricting information only to those people who need to know it is essential for protecting sources and methods of intelligence-gathering. But some committee staff felt the agency was attempting to block legitimate inquiries. The agency had only a few years earlier failed to adequately assess the state of Iraq's nuclear weapons program, so how well it was doing on Iran and North Korea was a matter of obvious concern to its congressional overseers.

The report at the heart of the current fight has been characterized by those who've read it as a blistering indictment of the CIA's interrogation programs, concluding that the agency tortured suspected terrorists in its custody without gaining access to any useful intelligence about potential future attacks. The report also concludes that the CIA misled congressional overseers and administration officials about the efficacy of the program, these people said.

That helps explain why the CIA has been so defensive about the committee's inquiry, said a former official who has seen the 6,300-page report. "I thought it was intellectually disingenuous because it was incredibly one-sided," he said. "I'm sure the CIA made mistakes. But to conclude that no piece of information gleaned from the interrogations ever had any value? Ever? That just didn't ring true to me." Other critics of the committee's investigation have said it selectively presents cases to paint the program in an unflattering light.

To be sure, unauthorized leaks by committee members have sparked bitter disputes in the past. In the late 1980s, Leahy caused a firestorm after leaking a confidential report on the Iran-Contra affair as the Senate prepared to hold hearings on the Reagan-era scandal. The ensuing controversy led to Leahy's resignation as vice chairman of the intelligence committee in 1987 and the derogatory sobriquet "Leaky Leahy." But even that matter was handled internally, noted Metcalfe, the former Justice Department official, without the involvement of FBI investigators.

Saul Loeb / AFP


The Black Box of China’s Military

Beijing is spending hundreds of billions of dollars on defense, but no one quite knows what they're up to.

The People's Liberation Army does not have a website. There is China Military Online, which boasts that it's "approved by the Central Military Commission," (CMC) the 11-member body chaired by Chinese President Xi Jinping, which oversees the PLA, and is the military's "only news portal website." There are other Chinese news sites, like Chinamil, which hosts Liberation Daily, a newspaper put out by the PLA's general political department, the shadowy department tasked with running the army's political activities. And there's a website for China's Ministry of National Defense, an organ which is subordinate to the CMC, and which is nominally the public face of the PLA. But the world's largest standing army, and the CMC which oversees it, has decided not to bother.

On March 5, during an annual meeting of its legislature, Beijing announced that it is increasing its military budget by 12.2 percent, to a total of $131.6 billion in 2014. While still less than a third of the $496 billion that Defense Secretary Chuck Hagel proposed in February for the U.S. military in 2015, it still represents a significant expansion, even after two decades of double-digit growth in the PLA's official budget. But few doubt that the grand total allocated to China's military is yet higher, and many in the U.S. government wish they had more insight into the method to the darkness surrounding the PLA.

There is general consensus that China, like many nations, spends more on its military than it reports: In February, the U.S. Defense Intelligence Agency said that China's military budget reached $240 billion in 2013, according to Bloomberg. As the most salient data point of China's military, Beijing's official budget gets a lot of attention. And that's largely because there's little other information that comes with it. "The single number, without any accompanying detail, represents the sum total of public transparency by the world's second-largest defence spender and the fastest rising military power, pored over by intelligence agencies and military experts from around the world in an effort to glean any clues about China's future strategic intentions," reported the Financial Times.

So how opaque is the PLA, and how much insight and information does the United States possess? It's important to distinguish between what the general public and the media understands, and classified information on the PLA available to U.S. government officials. "There's a big difference between what you know and what we know," said a senior Pentagon official, who asked to speak on background because of the sensitivity of the matter. The United States has long worried about the Chinese military's lack of openness. "They mock us some times, for how much we repeat" this call for a higher level of transparency, said the senior Pentagon official. Most recently, Adm. Harry B. Harris Jr., the commander of the United States Pacific Fleet, expressed concerns about the "aggressive" growth of the Chinese military and "their lack of transparency" in a February speech.

Overall, though, the Chinese military is probably growing more transparent; or at least the United States' non-classified understanding of it is improving. On a February trip to Beijing, the Army Chief of Staff Gen. Raymond T. Odierno said the two countries' militaries were planning to start a formal dialogue and exchange program before the end of 2014. "We know a lot about China's defense budget, especially when compared to a decade ago," said a China military researcher, who asked to speak on background. Part of the reason, he said, is the proliferation of open source material. While the PLA might not have a website, it does support a media industry whose role, just like in the United States, is to explain it and critique it. There are countless newspapers, blogs, and military journals in China that regularly run articles about the Chinese military and what it should or should not be doing. "Technically our understanding of China's military has improved over the last five to ten years, and we have a decent sense" about intelligence, said a U.S. defense official, who asked to speak anonymously.

The military itself does seem to have taken steps to make itself better understood to domestic audiences and foreign governments. In November, seven units of the PLA and China's paramilitary People's Armed Police appointed spokespeople. (Prior to that, a single spokesperson for the Ministry of Defense fielded comments for the PLA.) Not much has changed: six of the spokespeople wrote New Year's greetings, which The PLA Daily newspaper dutifully published on its Sina Weibo account, and at least two of the spokespeople have, since being named, actually made public addresses. The PLA has made itself more open "in very small increments," said Avery Goldstein, director of the Center for the Study of Contemporary China at the University of Pennsylvania. They're starting to publish with more frequency "things like defense white papers" and other reports, he said.

The biggest hole in U.S. understanding of the Chinese military appears to be in how it makes decisions. "We are still pretty much in the dark" about decision-making, both in terms of personnel and other areas, said the U.S. defense official, a sentiment widely shared by others interviewed for this article. "We have pretty much zero insight into how the PLA makes decisions," said the military researcher. "Zero."

When asked about how much control Xi has over the PLA -- perhaps the most important question if a crisis were to occur -- the senior Pentagon official paused for a minute, before replying: "Nobody knows what Xi's control over the PLA is."

On one level, being able to control what information it releases benefits the PLA. "It's calculated," said Goldstein. "The Chinese don't want to reveal too much that exposes weaknesses." The PLA, he notes, realizes that it's weaker than the U.S. military. They often say, "'if you have a gun and I have a knife, transparency does not make me safer,'" said Dean Cheng, a scholar at the Heritage Foundation. Misinformation, and the selective release of information, plays a bigger role in Chinese tactics than it does in the United States. "Mao Zedong said warfare is 70 percent political," said a former U.S. defense official with extensive experience in Beijing, who asked to speak on background. He cited the concept of san zhan, or three warfares: psychological, media, and legal. "From the Chinese perspective, political warfare, including legal warfare, is seen as a form of combat," Cheng wrote in a May 2012 article.

But the opacity also raises concerns about the intentions of the Chinese military. "They flat out refuse to put limits on what they may do!" said the senior Pentagon official. "There are interminable meetings, where we say, 'How many submarines? Are you going to build a lot of anti-satellite weapons? 100? Five?' Anything that would possibly jeopardize U.S. forces, we'd like to know about. But they flat refuse to say anything at all about the limit or future size of the force they might build. 'Go straight to hell' is their attitude." That has consequences both in the Pentagon, and repercussions back in Beijing. "Do you think when the Chinese speak this way to an [American] admiral or general, the admiral just takes a sip of tea? No! It makes them paranoid," he said. "The secrecy turns into inadvertent provocation for U.S. defense hawks to spend more on the rebalance" -- the U.S. policy of moving forces toward the Asia-Pacific region. "I hate to say it, but [the PLA] have brought this onto themselves."

It's not only foreigners who are kept in the dark. "One of the biggest discoveries of the last 10 years is that the PLA doesn't share with the civilian leadership," said the senior Pentagon official. Indeed, an editorial announcing the institution of PLA spokespeople in the Global Times, a Communist Party newspaper, politely offered suggestions for making the PLA more open: "They could also create an 'Open Barracks' day for some troops garrisoned in cities, allowing the public to observe the troops going about their daily tasks. This is done by not a few foreign armies, and the positive effects are clear."

Whether the PLA will choose to adopt such nominal efforts at openness is still an unanswered question. What's not is that China's military is still a black box. "Is there a Chinese doctrine on military space? How does the military command? If there is a crisis, who do we call. We just don't know," Cheng said. The key questions are the unknown unknowns in a time of potential crisis. If there is a major, unannounced build-up of China's military, said the senior Pentagon official, "then not knowing is a disaster."

Yiqin Fu contributed research.

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