Did secret CIA whistle-blower leak to the Senate?

Does the Central Intelligence Agency have a secret whistle-blower who has been trying to help the Senate Select Committee on Intelligence investigate his or her own agency? That’s a possibility that panel chairman Sen. Dianne Feinstein (D) of California mentioned Tuesday on the Senate floor in her angry speech alleging that the CIA has illegally spied on committee computers.

At issue is how Intelligence Committee staffers obtained portions of a sensitive internal CIA study named the “Panetta report,” after former agency chief Leon Panetta.

Senator Feinstein in essence said that the Panetta report fell from the sky into the committee’s lap. Staffers flipping through millions of pages of digitized CIA documents, about Bush-era harsh interrogations of terror suspects, simply found the report via a CIA-provided search tool, according to the committee head.

“We have no way to determine who made the internal Panetta review documents available to the committee.... Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower,” Feinstein said.

Why is the Panetta report such a big deal? That requires a bit of explanation.

Since 2009, the Senate Intelligence Committee has been conducting a big survey of the harsh interrogation program. This began because members were concerned the interrogation techniques, which included simulated drowning, stress positions, and sleep deprivation, were more brutal than the CIA had led them to believe.

Per an agreement with the CIA, panel staffers worked on this investigation in a CIA building with a CIA-provided computer system walled off from the agency’s main networks. They used a CIA search tool to help them navigate through the piles of material provided by the agency.

That’s how they found the Panetta study sometime in 2010. This report appeared to be a summary of the documents that the CIA was providing the committee, with some added analysis and explanation. It confirmed some of the panel’s fears about the interrogations, according to the committee. In particular, it indicated that harsh interrogations were not as useful as top agency officials insisted.

Sometime later in 2010, the CIA removed the Panetta report documents from the cache it had provided the committee.

Fast-forward to 2012. The Intelligence Committee wrapped up a highly critical, 6,300-page report on the interrogation program and sent it to the CIA for comment. The agency provided this in 2013. Officials agreed with some parts of the committee study. But they vehemently disagreed with some of its important conclusions.

Yet – and here’s the kicker – the conclusions the CIA disagrees with were clearly acknowledged in the Panetta report, according to Feinstein.

“To say the least, this is puzzling. How can the CIA’s official response to our study stand factually in conflict with its own internal review?” she said on the Senate floor.

In late January of last year, Feinstein officially requested that the agency turn over the full Panetta document. The CIA declined. Then in January of this year, Director John Brennan informed Feinstein that the CIA had searched the walled-off committee computer network in response to indications that the staff had already seen portions of the Panetta study. Which it had.

In this context, how the Intelligence Committee gained access to the Panetta report becomes legally and politically very important.

It’s very unlikely that the CIA itself gave staffers the report on purpose, writes Chris Donesa, former chief counsel for the House Permanent Select Committee on Intelligence, on the "Lawfare" national security legal blog. If that was the case, it would not have reacted so vehemently.

The most probable explanation is that somebody made a mistake.

“It seems more likely that the Agency itself unwittingly placed the drafts in the database in a manner accessible to the Committee, especially since it is easy to see how the ‘Panetta Review’ materials might be commingled with the underlying documents themselves,” Mr. Donesa writes.

But it is also possible that a third-party whistle-blower slipped the Panetta documents into the pile of material to be provided to the committee, on purpose. That’s a more interesting answer to the mystery of where the document might have come from.

Donesa writes that it might actually strengthen the position of both sides in this dispute. The Senate would have a clear interest in protecting the whistle-blower as part of its responsibility to oversee executive branch agencies. The CIA would have a clear interest in identifying the leak in its hierarchy.

The discovery of a CIA leaker could expose weaknesses in current whistle-blower protection law while exacerbating the Edward Snowden-fueled debate involving revelations of intelligence agency activities.

“These are important issues that require further discussion in any event, but would instantly move to the forefront if the whistleblower scenario turned out to be the case,” according to Donesa.