Did The National Archives Give The CIA Permission To Destroy Evidence?

CIA Director John Brennan arrives on Capitol Hill in Washington, Tuesday, March 12, 2013, to testify before the Senate Intelligence Committee hearing on worldwide threats. (AP Photo/Susan Walsh)
CIA Director John Brennan arrives on Capitol Hill in Washington, Tuesday, March 12, 2013, to testify before the Senate Intelligence Committee hearing on worldwide threats. (AP Photo/Susan Walsh)

WASHINGTON -- In mid-January of this year, a small request was slipped quietly to the National Archives and Records Administration, the lord of the U.S. government’s record-keeping operations. One government agency’s method for storing documents was clogging up its system, and it just wanted permission to clear out some of its emails.

The National Archives gave the proposal a temporary nod in August, and the Central Intelligence Agency was granted the ability to erase certain email records.

The tentative approval of the new record-keeping strategy has set off a firestorm between the CIA and its critics, including the agency's congressional overseers. The CIA insists that it'll actually be keeping more extensive records under the new system. But the agency's watchdogs say the emails are vital to the oversight process, and that, due to its history of secrecy, the CIA shouldn’t be trusted to judge what’s worth saving and what isn’t.

Under the CIA's proposal, the agency will delete emails from its records “when no longer needed,” or, at most, three years after the employee who authored the emails leaves the agency. (An exception is made for the correspondence of 22 senior agency officials, which will remain on file.) Currently, the agency's record-keeping process consists of printing out and filing emails that are deemed important, which are then retained for an amount of time that could not be clearly determined.

It's unclear how much additional discretion the new system will give the CIA, since the criteria currently used to determine which emails to retain are not known. But transparency advocates are incensed that the National Archives would grant the agency explicit permission to delete emails, given what they see as the CIA's history of secrecy.

In a letter sent to the National Archives on Wednesday, Senate Intelligence Committee members Martin Heinrich (D-N.M.), Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) blasted the initial approval of the CIA’s proposal, and suggested the office had relied too heavily on the agency’s good faith in granting the request.

“[National Archives] appears to have relied on CIA assertions about the CIA’s treatment of information contained in email records, not on an independent review of these issues,” the letter reads. “We also believe that [the National Archives'] justification for the pending approval severely undervalues the importance of email records to be used as documentary evidence for Congress, the courts, Executive Branch entities and the public.”

The CIA, however, argues that under the new system, more records, not fewer, will be kept on file.

“CIA’s proposal exceeds [National Archives] requirements, would preserve more records than many other government agencies and would preserve more records than under existing policy,” agency spokesperson Ryan Trapani told The Huffington Post last week.

The agency noted in its request to the National Archives that any important information contained in emails to be deleted would be swept up and stored through other protocols already in place. The specifics of those protocols could not be ascertained, as many of the agency’s data storage systems are classified.

But the senators, who are familiar with the protocols, challenged those claims.

“These statements, in our judgment and experience, are simply not true,” the senators’ letter reads. “Important information about the CIA’s actions, assessments, and decision-making processes is often contained in email records and nowhere else.”

The Senators also warned that the CIA would be the first of the nation's intelligence agencies to implement the new email storage policy, which could set a dangerous precedent.

The CIA's proposal was first reported in September by Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists.

The agency also suggested that it is being unfairly criticized for its request.

“Because we are the CIA, some tend to see conspiracies where there are none,” Trapani said.

Transparency advocates and agency critics, though, are up in arms, and say that based on the agency’s track record, the conspiracies are seldom imagined.

Seventeen government transparency advocates wrote to the National Archives earlier this month, asking the office to reconsider its initial approval of the CIA’s proposal.

“It leaves too many key terms undefined, and relies too heavily on the CIA’s good faith instead of NARA’s own careful appraisal of CIA recordkeeping,” the letter said.

Katherine Hawkins of OpenTheGovernment.org, one of the groups that signed the letter, said it's not clear from the CIA's request that the new policy would lead to more extensive record keeping than current practices.

“If that's the case, their proposal is very poorly written. It is not at all clear from the text that it requires any additional email preservation,” she said. “Even leaving aside the lack of clarity ... the list of officials whose records are to be preserved permanently is much, much too short. There is more than one person in the 5000-person clandestine service whose emails are historically significant.”

There’s ample evidence to support the advocates' claims that email records are critical to the oversight process, the most recent example being the CIA emails that were frequently cited in the intelligence panel's study on the 2012 terror attack in Benghazi. The senators’ letter also noted that the committee’s yet-to-be-released study on the CIA’s enhanced interrogation program relies in part on CIA email correspondence.

Underscoring concerns over the proposal is the CIA’s track record of discarding incriminating evidence. Most notably, in 2005, the agency destroyed certain videotapes of interrogations conducted under its post-9/11 torture program. The advocacy groups say that this history should prompt concern over allowing the CIA to independently determine which emails are worthy of saving.

“In many cases, the CIA has justified the destruction of evidence by using an extremely narrow definition of what constitutes a 'permanent record,'” the groups’ letter reads. "This has contributed to incidents where crucial documents were destroyed, and the CIA has refused to acknowledge that their destruction violated any law.”

The Senate Intelligence Committee was briefed on the agency’s records request in the past weeks, HuffPost has learned, but requests for comment from the committee have gone unanswered.

The public comment period for the proposal closed this week. The National Archives declined to comment.

Read the senators' letter to the National Archives here.

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