Senate ‘Torture’ Report Used Documents Covered by Attorney-Client Privilege

I wrote last week in a Breitbart.com article that the Senate Intelligence Committee report on the CIA enhanced interrogation program – a program its critics claim amounted to torture – is a flop with the American people. Three major polls issued after the release last month of the report’s 499-page declassified summary indicate most Americans reject the report since they believe this program was effective in keeping our country safe from further terrorist attacks after 9/11.

A major point of contention over the report concerns the use in the investigation by the committee’s Democratic staff of restricted CIA documents they were not supposed to have and their removal from a CIA facility by the staff, a violation of an agreement between the committee and the Agency. The committee staffers brought the restricted documents to the Senate Intelligence Committee’s secure offices without telling CIA officials.

The documents are known as “the Panetta Review, a draft account of the enhanced interrogation program that reportedly differs from the Agency’s official account. It is unclear how the Democratic staff acquired these documents. After CIA officials realized the Democratic staff had them, it audited Agency computers in an Agency facility made available to the staff for the investigation and made a referral to the Justice Department. Feinstein and other members of Congress reacted angrily to the Agency’s actions and accused it of spying on Congress.

The Justice Department declined to act on resulting misconduct claims made by both sides. The New York Times reported on December 19 that a five-member CIA review panel headed by former Democratic Senator Evan Bayh reportedly will recommend against punishing any CIA personnel for wrongdoing, although it will criticize missteps by the Agency that contributed to the fight with Congress.

Further complicating this affair, we now know the restricted Agency documents are covered by attorney-client privilege.

In late December, CIA revealed in response to an FOIA request that each of the restricted documents are stamped “DELIBERATIVE PROCESS PRIVILEGED DOCUMENT” at the top and has this language on the first page:

“This classified document was prepared by the CIA Director’s Review Group for Rendition, Detention, and Interrogation (DRG-RDI) for DRG-RDI’s internal discussion purposes and should not be used for any other purpose, nor may it be distributed without express permission from DRG-RDI or CIA’s Office of General Counsel. This document contains [certain classified information]. This document also contains material protected by the attorney-client and attorney work-product privileges. Furthermore, this document constitutes deliberative work product, protected by the deliberative-process privilege, and is not a final, conclusive, complete, or comprehensive analysis of DRG-RDI or CIA. Rather, it was created to suit the needs of DRG-RDI, in support of informing senior Agency officials about broad policy issues. While every effort was made to ensure this document’s accuracy, it may contain inadvertent errors. For this reason, and because this document selectively summarizes, draws inferences from, or omits information from the sources it cites, it should not be relied upon by persons outside DRG-RDI.”

I spoke with an experienced Washington attorney about this. He told me that when a lawyer comes across a document during a lawsuit or investigation that belongs to the other side marked “deliberative process privileged document” or “protected by the attorney-client and attorney work-product privileges”, he or she cannot use the document and is ethically bound to immediately return it to the other side.

In this case, Daniel Jones and Alissa Starzak, the Senate Intelligence Committee’s Democratic staff members who headed the enhanced interrogation program investigation – both of whom are attorneys – did not inform the CIA they had acquired these documents, retained them for several years (they acquired them in 2010), and used these documents as part of their investigation. The Democratic staff attorneys also did not share the restricted CIA documents with the committee’s Republican staff, a violation of the Senate Intelligence Committee’s rules.

Jake Gibson and James Rosen reported in a December 24, 2014 FoxNews.com article that controversy over the restricted CIA documents has endangered the nomination of Starzak to be the next U.S. Army general counsel. Rosen and Gibson reported that Senate Republicans claim Starzak was one of the Democratic staffers who “stole” these documents from the CIA.

Starzak was nominated for the Army post over the summer. Although the Senate Armed Services Committee approved her nomination on December 9 without a recorded vote, it expired at the end of the last Congress since the full Senate did not vote on the nomination. The Obama administration has not said whether Starzak will be renominated.

Some Congressional Republicans and conservative groups want to punish Starzak over the CIA restricted documents by denying her the Army general counsel post. In my view, this appears to be a serious ethical violation that should kill the Starzak nomination. However, I also believe this is a scandal that goes beyond Starzak since the Senate Intelligence Committee’s former Democratic majority are experienced legislators who obviously understand what “attorney-client privilege” and “deliberative work process” means. Moreover, three of these senators are attorneys, including Ron Wyden (D-OR), the committee member who was the most aggressive in pushing the enhanced interrogation investigation.

What did these Democratic senators know about CIA documents used in the enhanced interrogation investigation covered by attorney-client privilege and when did they know it? These are questions that other members of the Senate and the news media need to be asking.