http://www.nytimes.com/2014/12/20/us/politics/panel-to-advise-against-penalty-for-cia-computer-search.html

DEC. 19, 2014

Investigators Said to Seek No Penalty for C.I.A.'s Computer Search

By MATT APUZZO and MARK MAZZETTI

WASHINGTON -- A panel investigating the Central Intelligence Agency's search of a computer network used by staff members of the Senate Intelligence Committee who were looking into the C.I.A.'s use of torture will recommend against punishing anyone involved in the episode, according to current and former government officials.

The panel will make that recommendation after the five C.I.A. officials who were singled out by the agency's inspector general this year for improperly ordering and carrying out the computer searches staunchly defended their actions, saying that they were lawful and in some cases done at the behest of John O. Brennan, the C.I.A. director.

While effectively rejecting the most significant conclusions of the inspector general's report, the panel, appointed by Mr. Brennan and composed of three C.I.A. officers and two members from outside the agency, is still expected to criticize agency missteps that contributed to the fight with Congress.

But its decision not to recommend anyone for disciplinary action is likely to anger members of the Intelligence Committee, who have accused the C.I.A. of trampling on the independence of Congress and interfering with its investigation of agency wrongdoing. The computer searches occurred late last year while the committee was finishing an excoriating report on the agency's detention and interrogation program.

The computer search raised questions about the separation of powers and caused one of the most public rifts in years between the nation's intelligence agencies and the Senate oversight panel, which conducts most of its business in secret. It led to an unusually heated and public rebuke by Senator Dianne Feinstein, the California Democrat who is the committee's chairwoman.

Three C.I.A. technology officers and two lawyers had faced possible punishment. In their defense, some pointed to documents -- including notes of a phone call with Mr. Brennan -- that they said indicated that the director supported their actions, according to interviews with a half dozen current and former government officials and others briefed on the case.

The panel's chairman is Evan Bayh, a Democratic former senator from Indiana who served on the Intelligence Committee. Its other outside member is Robert F. Bauer, who served as White House counsel during President Obama's first term.

The panel's specific conclusions are still being finalized, and it could be weeks before they present a report to the C.I.A. But officials said that the five agency employees had been informed that the panel would recommend that they not be disciplined.

The results of such investigations, known as accountability boards, are not normally released. But given the public nature of the dispute, it is expected that some of the conclusions will eventually become public.

"The process is ongoing," said Dean Boyd, the C.I.A. spokesman. "We haven't seen what it says, so it's impossible to comment on it."

When the controversy over the search erupted, Mr. Brennan offered a vigorous defense of his agency. He later apologized after the C.I.A.'s inspector general concluded that the agency had improperly monitored the committee's activities. The inspector general also found that C.I.A. officers had read the emails of agency investigators and sent a criminal referral to the Justice Department based on false information.

Mr. Brennan has enraged senators by refusing to answer questions posed by the Intelligence Committee about who at the C.I.A. authorized the computer intrusion. Doing so, he said, could compromise the accountability board's investigation.

"What did he know? When did he know it? What did he order?" said Senator Carl Levin, the Michigan Democrat who is a member of the Intelligence Committee, said in an interview last week. "They haven't answered those basic questions."

The computer controversy erupted last December amid a dispute between the C.I.A. and committee Democrats and staff members over the conclusions of the torture report, which was released last week. As it does today, the C.I.A. disputed the report's findings that brutal interrogation tactics yielded no crucial intelligence to prevent terrorist attacks. During a committee hearing, Senator Mark Udall, Democrat of Colorado, revealed the existence of a previously unknown internal C.I.A. report that he said backed up the committee's findings.

"If this is true," Mr. Udall said, "this raises fundamental questions about why a review the C.I.A. conducted internally years ago -- and never provided to the committee -- is so different from the C.I.A.'s formal response to the committee study."

By then, agency officials had already suspected that committee investigators had found the internal review, which was ordered in 2009 by Leon E. Panetta, then the C.I.A. director, and has come to be known as the "Panetta review." Working for years from the basement of a C.I.A. facility in North Virginia, Senate investigators reviewed millions of digital files related to the interrogation program. But the Panetta review was not supposed to be one of them, and agency officials suspected that Senate investigators had somehow gained access to parts of the C.I.A.'s computer network they had been prohibited from searching.

C.I.A. officers searched their logs to see if they had inadvertently given the Panetta review to the Senate. When they determined they had not, officials brought the matter to Mr. Brennan, who authorized what he has called "a limited review" to figure out if Senate staff members had obtained the documents.

The inspector general's report included details of a conversation last December, when Mr. Brennan called the home of one of the C.I.A. lawyers under investigation. According to two people with knowledge of the inspector general's findings, the lawyer wrote a memorandum about the conversation that said Mr. Brennan told him he needed to get to the bottom of the matter.

Much of the dispute between the Senate and the C.I.A. revolves around what rules governed the computer system used by Senate investigators as they wrote their report. The C.I.A. made the documents available to the investigators and created a search function that allowed them to locate documents based on key words. The rules for accessing the network were established in a series of memos and letters, not one formal document.