The CIA's Oversight Committee Doesn't Want It Deleting Emails Either--UPDATED

Last month, OpenTheGovernment.org and 16 other civil society groups wrote to the National Archives and Records Administration (NARA) to oppose a CIA request for additional authority to destroy emails.  This week, five members of the Senate Select Committee on Intelligence (SSCI) also raised alarm about the proposal, including Chairman Dianne Feinstein and Vice Chairman Saxby Chambliss.

Bipartisan opposition from the CIA’s oversight committee is significant not only because of the Senators’ constitutional role, but because the Senate has actually reviewed CIA emails while conducting investigations. In contrast, NARA’s preliminary approval for the CIA proposal was based on the CIA’s descriptions of its records—not an examination of the documents themselves.

Senators Feinstein and Chambliss wrote,

in our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA. Therefore, we disagree with the NARA appraisal which found, “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files appraised as permanent.”

Senators Mark Udall, Ron Wyden, and Martin Heinrich were even more blunt and specific in a separate letter, stating of NARA’s preliminary assessment that CIA emails likely contained no unique information:

These statements, in our judgment and experience, are simply not true. Important information about the CIA’s actions, assessments, and decision-making process is often contained in email records and nowhere else….For example, the Committee’s report on the Benghazi attacks as well as the Committee’s Study on the CIA Detention and Interrogation Program rely on email records from CIA officials to tell their narratives.”

Both Senate letters echoed civil society groups’ concern that the list of CIA officials whose emails were to be permanently preserved was much too short. Feinstein and Chambliss wrote,

the new proposal would allow the destruction of important records created by senior CIA officials such as (a) the Deputy Director of the National Clandestine Service, (b) the Director of the CIA’s Counterterrorism Center and all of its employees, (c) the head of the CIA’s Counterintelligence Center, and all of its employees, (d) the head of the CIA’s Counterproliferation division, and all of its employees.

Udall, Wyden, and Heinrich wrote,

the proposal would not capture emails of many senior officials, to include the Deputy Director of the National Clandestine Service, the heads of the Counter Terrorism Center, the Counterintelligence Center, and the Counterproliferation Division, and all their employees, as well as every CIA contractor, among others.

CIA spokesman Ryan Trapani said that the Senators’ and NGOs’ concerns were based on a misunderstanding of the proposal, and “because we’re the CIA, some tend to see conspiracies where there are none.” But Senators Feinstein, Chambliss, Wyden, Heinrich and Udall are not conspiracy theorists. Their staffs have conducted investigations using CIA emails, and do not trust the CIA not to destroy records that are essential to oversight. That’s probably because, as detailed in OpenTheGovernment.org’s and others’ comments, the CIA has repeatedly done just that.

There may be some genuine misunderstanding about what the proposal does, because it is not at all clearly written. Conflicting CIA explanations about what prompted the request to NARA have added to the confusion. The CIA apparently told Senators Feinstein and Chambliss that it was a cost saving measure:

The rationale for the new CIA proposal is supposedly to save money spent on the cost of email retention, but the CIA has not provided the Committee—nor perhaps NARA—with any projected cost savings to justify the new email destruction policy.

But the CIA has now shifted to claims that the proposal would actually increase the number of emails preserved, and “move to a standard of preservation that is greater than the National Archives requirements, well above current CIA policy.”

Fortunately, NARA has been less dismissive than the CIA of the Senate’s and civil society’s concerns. NARA’s head of modern records, Paul Wester told NPR that “[t]he feedback that we’re getting from the public interest process, has been very illuminating on different positions that we think we need to maybe rethink, and ask more questions of the CIA.”

The Senators’ letters were reported by Yahoo News, NPR, The Wall Street Journal, Huffington Post, Lawfare, and the Hill.

UPDATE: NARA has informed the CIA that it is reassessing the proposed email destruction authority, in light of Congressional and public opposition. Further coverage is available in Secrecy News.