The Other Torture Report: The Secret CIA Document That Could Unravel The Case For Torture

The Other Torture Report: The Secret CIA Document That Could Unravel The Case For Torture

WASHINGTON -- As the public grapples with the gruesome realities put forth in the Senate Intelligence Committee’s damning report on the CIA’s torture program, the agency has dug in to defend itself. The CIA claims the torture tactics it used in the years following 9/11 were legal and saved American lives. And despite what the Senate study alleges, the agency insists it never lied about the torture program.

One internal CIA document, though, could be key to discrediting this defense. And at this very moment, it’s tucked away in a Senate safe.

Over the past five years, this document, known colloquially as the Panetta Review, has made its way to the center of an unprecedented feud between the Senate Intelligence Committee and the CIA. Committee members, who have spent those years investigating the torture program the CIA ran between roughly 2002 and 2006, believe the Panetta Review reveals that there was doubt within the agency itself about the morality and effectiveness of torture.

While the CIA’s official response to the Senate committee’s allegations has been to deny many charges of wrongdoing, senators on the intelligence panel say that the still-classified Panetta Review contradicts that official line. In fact, lawmakers believe the document actually confirms some of the incriminating charges that the committee made in its report.

A meticulous condemnation of the agency’s failings, the executive summary of the Senate document, released Dec. 9, accuses the CIA of using gruesome techniques like waterboarding, rectal feeding and sleep deprivation, all the while lying to authorities around Washington about the efficacy of these tactics.

Some senators say the Panetta Review concedes that the use of so-called “enhanced interrogation techniques” -- the spy agency’s often-used euphemism for what is widely considered to be torture -- did not make detainees any more willing to talk, despite the CIA's public insistence that the program was successful.

Similarly, the document apparently admits that the agency lied about the program to Congress, the White House and the public -- another conclusion that aligns with the findings of the Senate report, and one that the CIA’s official response vehemently denies.

As the debate over torture intensifies, the Panetta Review could dent the spies' credibility just as they’re trying to salvage it.

The content of the document, though, is only one part of a sensational story, which involves a feud so explosive that months later, some lawmakers are still calling for CIA Director John Brennan’s head.

It's unclear whether the Panetta Review will ever be made public, and much remains unknown about it. But new details are emerging that paint the clearest picture yet of the document, its significance and the timeline of events that led Senate staffers to pilfer it from right under the CIA’s nose.

Outgoing Sen. Mark Udall (D-Colo.), who lost a tough re-election bid after a year of fighting fiercely with the agency over the Panetta Review, revealed previously unknown information this month in a farewell address on the Senate floor. Combined with other public statements, court documents and news reports, these details are helping to better shape the story, showing just how complicated the feud between the CIA and lawmakers has become.


Soon after President Barack Obama took office in 2009, he outlawed the use of enhanced interrogation techniques. Shortly after that, Senate Intelligence Committee Chair Dianne Feinstein (D-Calif.) announced that her committee would conduct a massive study on the CIA’s purported use of torture.

The nation was still reeling from details that were trickling out from the darkest corners of the CIA’s detention facilities into public view. Although the agency’s torture program had been officially revealed in 2006 by then-President George W. Bush, new and disturbing information kept coming out, stoking the flames of the discussion and inspiring outrage at the apparent departure from American values. In late 2007, Americans learned that the CIA had destroyed certain interrogation videotapes. The public outcry -- along with concern within the legislative branch that the agency had evaded its oversight mechanisms -- inspired several congressional inquiries, including Feinstein’s.

When the Senate Intelligence Committee began its investigation of the program in 2009, the CIA agreed to provide a massive trove of documents to the committee investigators. In an effort to catalog those documents, then-CIA Director Leon Panetta commissioned an internal review group tasked with summarizing the millions of records. The review group was made up of officers from the agency, including undercover National Clandestine Service officers, who would be responsible for reading and summarizing the documents before they were provided to the committee.

Their summaries would collectively come to be known as the Panetta Review.

According to Panetta’s original statement as well as recently filed court documents, the collection of summaries was intended to eventually serve as a foundation for putting together official agency responses to the Senate report’s final conclusions.

“The Panetta Review appears to have been created in response to Director Panetta’s instructions to figure out what the records being provided to the [Senate Intelligence Committee] would reveal,” said a Senate source familiar with the matter, who requested anonymity given its extraordinary sensitivity.

Agency leadership, in Panetta’s vision, could use the internal summaries and analysis as a basis for constructing and issuing an official CIA position on the Senate study.

At this time, the CIA itself was struggling to find a voice in the ongoing national conversation about torture. The new Obama administration had made very clear it would not continue to support the practices of the Bush-era CIA, and the agency was quickly starting to feel the heat from the Senate investigation, an inter-branch executive review of detention policies and a soon-to-be-commissioned Justice Department review. Coming up with official agency positions to defend against these probes, it seemed, was in the CIA’s best interest.

“In each case, the Agency’s voice must be heard,” Panetta wrote when first commissioning the review group.

In a series of letters exchanged in 2009 between then-CIA Director Leon Panetta and Feinstein, an agreement was reached. Feinstein’s staff could have access to an unprecedented number of agency records -- but only, the CIA insisted, at an off-site facility operated by the spies.

The terms of the agreement were outlined in both a March 2014 floor speech from Feinstein and a February 2014 court filing from the agency, in which it denied a Freedom of Information Act request for the then-unreleased Senate torture study.

According to the agreement, Feinstein said, the agency would be required to provide a “stand-alone computer system” with a “network drive … segregated from CIA networks” on which Senate investigators could construct the study. That “walled-off” drive was only to be touched by the agency’s IT personnel, and only for upkeep purposes.

Beginning in late 2009, millions of documents, cables and records were shoveled from the agency to the committee. In the process of sifting through these documents, two committee staffers who led the torture investigation -- Daniel Jones, 39, and Alissa Starzak, 41, who left the panel in 2011 and is currently nominated to serve as the Army’s general counsel -- discovered a certain set of documents whose markings were unique.

The unique notations on these documents were recently revealed in a new court document that the CIA filed in response to a separate FOIA request to turn over the Panetta Review. (The agency denied the request). The top of the documents read:

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.

It’s not clear how exactly the documents ended up in committee hands.

“One possibility is that the CIA placed those documents in the database accessible to the Committee, intentionally or unintentionally,” said the Senate source familiar with the matter. “Another possibility is that an individual CIA officer placed them in that database without authorization. A third possibility is that CIA built a system in which it appeared to them that the Panetta Review documents were unaccessible to the Committee, but were in fact accessible because either the database or the search tool did not work as intended. We don’t know.”

The precise timing of this discovery is also unclear. Feinstein has said that some of the Review Group’s summaries became available to Senate investigators at some point in 2010. But Udall, another member of the intelligence committee, said in his farewell speech that it’s not clear when exactly the panel found the Panetta document.

It’s not known what became of the document between the Senate investigators’ initial discovery and 2013. Panetta’s review group stopped compiling the summaries in mid-2010, apparently due to a parallel Justice Department inquiry into the torture program. With millions of documents already being cataloged and turned over, the extra paper trail was deemed unnecessary.

As far as the Senate is concerned, the committee’s investigators were working on constructing the torture study. According to Feinstein’s March 2014 floor statement, they had largely put the Panetta Review out of their minds during this time. But sometime in 2010, Feinstein says, the CIA began removing access to the “vast majority” of the summary documents that constituted the Panetta Review. It’s unclear whether this was a deliberate effort by the agency to hide the internal review from the committee, a fix to a previous technological glitch or something else.

In any case, Senate committee staffers had somehow preserved their own copy of the Panetta Review, either by printing the document or transferring it to their side of the walled-off hard drive and saving it.


Fast forward to December 2012. After three years of examining millions of cables, Feinstein’s committee voted to consider the torture study “complete,” though certain writing adjustments continued to be made.

The day after approving its completion, Feinstein sent the 6,700-page report to the CIA for its review. The spy agency had 60 days -- until Feb. 15, 2013 -- to provide an official response.

As the agency began to compile a rebuttal to the Senate panel’s incriminating report, its seventh floor executive offices were reshuffling. John O. Brennan, the Obama White House’s counterterrorism advisor, had been nominated to run the CIA. He appeared before the Senate intelligence committee in a friendly confirmation hearing just one week before the CIA’s response deadline. Pledging transparency and cooperation, Brennan promised Feinstein that the agency would take an honest look at her committee’s study. He made clear, though, that he had little to do with the agency’s formal response, whose construction had begun prior to his confirmation.

“I very much look forward to hearing from the CIA on that and then coming back to this committee and giving you my full and honest views,” Brennan said.

The niceties wouldn’t last long.

In June 2013, not long after Brennan took the helm of the CIA, agency leadership provided the official response to the intelligence committee.

The CIA's response took serious issue with many of the torture study’s damning conclusions, such as the allegations that the gruesome tactics yielded no valuable intelligence and that the spies had lied about the torture program to authorities on both ends of Pennsylvania Avenue.

What had started off as a promising new chapter in Senate-CIA relations quickly turned sour: According to Udall, Brennan rescinded on his earlier promises to meet with panel staff about the torture study.

Following receipt of the official CIA response, Senate staff members began to recognize discrepancies between the official position and the analysis in the internal Panetta Review document -- which had been preserved in some form, but only at the off-site CIA facility used to construct the study.

It was at this time that committee staff realized the importance of the Panetta Review. Feinstein was also mindful of prior instances in which the agency had made important documents disappear. In an effort to preserve the document before anything could happen to it, staffers slipped a printed copy of the internal review from the secure agency facility back to Capitol Hill.

McClatchy Newspapers broke the news in March 2014 that Senate staff had taken the document. After additional press reports surfaced that the committee investigators may have “penetrated” a CIA firewall to find the Panetta Review, the panel’s chairwoman took to the Senate floor to respond. Feinstein’s March 2014 floor speech was her first public acknowledgement that her staff had removed the Panetta Review.

The circumstances surrounding the incident are unclear. It’s not known when exactly the document was taken back to the Senate committee’s secure office spaces, though it’s certain that the removal occurred sometime after June 2013, according to later statements from both Feinstein and Udall. Similarly, it’s also unclear whether Senate committee staff consulted with their bosses before taking the document, informed them immediately after the fact, or didn’t let the senators -- including Feinstein -- in on the secret until much after the document had already been removed.

The committee also refuses to indicate which staffers slipped the printed Panetta Review out of the facility, or whether the document's removal was authorized by David Grannis, the committee’s majority staff director.

Grannis declined to comment on the circumstances of the document's removal.

While it’s not known whether or not members of the intelligence panel were aware that their staffers had taken the Panetta Review, senators soon began to raise questions about the mysterious document.

Feinstein later claimed that in “late 2013,” she wrote to the agency requesting a “final and complete version” of the Panetta Review. This was her first indication to the CIA that her committee had somehow learned of the internal review. (Similarly, Udall says he was made aware of the document in “late 2013.”)

While Feinstein was lobbying behind closed doors for a copy of the document, Udall helped shed public light on the effort.

At a December 2013 confirmation hearing for CIA general counsel nominee Caroline Krass, Udall noted that the committee had become aware of draft copies of the internal CIA document. He asked that his panel be provided with a final copy of the Panetta Review.

It’s unclear whether either senator knew at this point that parts of the document were already in the committee’s possession.

What is clear, though, is that the panel's majority Democrats held tightly to their knowledge about the Panetta Review.

Immediately following Udall’s revelation in December 2013, Sen. Saxby Chambliss (R-Ga.), the intelligence committee’s ranking member, was asked about the document.

“I’ll be honest with you, that’s the first I’ve heard about it,” said Chambliss to this reporter, then with McClatchy. “I don’t know what he’s talking about.”

In the months since the Panetta Review’s existence was publicly revealed, the panel’s Republicans have raised several concerns about the way the majority staffers handled the document. They say that the Democratic staffers should not have accessed the document, nor should they have removed it from the CIA facility. In addition, the minority members allege, staff members breached committee protocols even further by leaving the minority out of the loop when deciding how to handle the Panetta Review.

The Republicans on the committee mentioned the issue in a separate set of views that accompanied the release of the Senate torture report. Their response accuses the committee’s majority staff members of mishandling the highly sensitive document.

“The Panetta Internal Review document that was brought back to Committee spaces was not handled in accordance with Committee protocols,” the Republican response says, noting that no member of the minority has handled or even read the Panetta Review. “It appears the existence, handling, and the majority’s possession of this document was not disclosed for months.”

Regardless, though, the Democrats’ revelations had set the stage for a bitter dispute between the committee and the CIA.


The news that the Democrats knew about the Panetta Review sent the CIA into a frenzy over how the panel had managed to access or take parts of the document.

The agency rejected Feinstein’s formal request for the document, informing her that it would not provide a copy of the Panetta Review to the panel. Then, after Udall publicly revealed the document's existence, the CIA commissioned a secret “security review” of the computer network on which the broader torture study had been constructed, according to Feinstein’s March speech. This review, she said, included a “search” of the walled-off committee drive that was supposed to be off-limits to CIA employees.

Brennan requested an emergency meeting with Feinstein and Chambliss on Jan. 15, 2014, in which he informed them that this initial “search” had taken place. According to Feinstein, Brennan also informed the committee leadership that he intended to conduct a more thorough “forensic” investigation into the staff hard drive.

Two days later, an angry Feinstein wrote to the CIA, warning Brennan that the search raised major concerns over the constitutional balance of powers. She said she would not support any further action by the agency.

The Senate Intelligence Committee maintains to this day that the search of the walled-off hard drive violated prior agreements between Feinstein and then-Director Panetta. But Brennan and the agency say that Senate investigators breached the agreements as well, by slipping the Panetta Review back to committee headquarters.

The accusations didn’t stop. Shortly after Feinstein sent her letter to Brennan, the CIA chief wrote back to her. His letter indicated that the CIA didn’t believe that Senate staff had simply stumbled upon the Panetta Review. Instead, Brennan suggested, staff may have penetrated the walled-off agency hard drive and dug around restricted databases in order to find the document.

Feinstein insists that regardless of how the Panetta Review was accessed, the committee, as a legislative oversight mechanism, is entitled to the document. She also argues that the CIA has a history of making inconvenient documents vanish, and said her staff was concerned that something similar might happen with the Panetta Review.

After the exchange of letters in January, tensions between the CIA and the Senate committee exploded behind closed doors. According to news reports, the committee was furious that the CIA had sniffed around Senate computers, and suggested the agency had violated the Constitution.

Brennan and the CIA balked at Feinstein’s allegation and staunchly denied that their security review had led to any such violation. The agency also lobbed its own accusations, saying that congressional investigators had nefariously dug into CIA hard drives to find the Panetta Review.

As the dispute continued to unfold, the CIA’s general counsel sent a criminal referral to the Justice Department, alleging that Feinstein’s investigators had improperly accessed the CIA’s network drive and requesting an investigation. Meanwhile, the CIA Inspector General -- the agency’s independent accountability office -- sent the Justice Department a competing referral, accusing the CIA of illicitly accessing the Senate committee’s walled-off drive while conducting the security review.

The feud soon spilled into public view. Feinstein addressed the matter in her explosive floor speech in March 2014. “I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution,” Feinstein said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”

The Justice Department decided in July that it would not pursue investigations into either charge. But the battle continued.

In addition to sending a referral to the Justice Department, the CIA Inspector General opened its own investigation into the spying allegations early this year. That inquiry, which concluded in July, found that the spies had, in fact, improperly monitored the computers that the committee was using to construct the study. In an unclassified, one-page summary of the full report, the IG detailed how five CIA employees had accessed the Senate’s off-limits network drive and had searched through certain emails of Senate investigators.

But Udall said in his farewell address that the CIA hedged on the IG investigation, refusing for a time to provide the panel with a full copy of the report. He said that under duress, the agency eventually agreed to issue a full, classified version of the IG report to the committee. But this wasn’t enough.

“The longer, classified version was only provided briefly to members when it was first released, and I had to push hard to get the CIA to provide a copy to the Committee to keep in its own records,” Udall said. “Even the copy in Committee records is restricted to Committee members and only two staff members, not including my own.”

Still, the IG’s conclusions were enough to force Brennan to issue a personal apology to Feinstein. The spy chief also commissioned an independent accountability review board to determine what, if any, punishment should be doled out to those responsible for the transgression. That effort is ongoing.

The IG also determined that there was insufficient evidence to support the agency’s criminal referral against Senate staff -- specifically, the allegation that the staff had improperly accessed agency computers to obtain the Panetta Review.

Brennan has declined to provide the committee with further details of the IG's findings.

“For almost nine months, Director Brennan has flat-out refused to answer basic questions about the computer search – whether he suggested the search or approved it, and if not, who did,” Udall said in his farewell address. “He has refused to explain why the search was conducted, its legal basis, or whether he was even aware of the agreement between the Committee and the CIA laying out protections for the Committee’s dedicated computer system.”

On the other side of the dispute, the Senate staffers who accessed the Panetta Review weren’t off the hook yet.

As the CIA wrestled with its own computer breaches, the Senate sergeant-at-arms, the chamber’s law enforcement office, was tasked with investigating how, exactly, the Senate investigators originally obtained the Panetta Review.

There was hope that the sergeant-at-arms investigation would put to rest the agency’s accusations that Senate staffers had hacked into CIA computers. But the probe was completed without resolution. The sergeant-at-arms office said that it could not authenticate the agency computer records that would have shed light on the matter.

The CIA actually invited the Senate law enforcement office to agency headquarters in Langley, Virginia, to confirm the accuracy of the records in question. But the sergeant-at-arms declined to take the spies up on the offer for reasons that remain unclear, leaving one half of the storyline unresolved.

As the story swirls, at the center of it all is the still-secret Panetta Review.


Despite the tensions that the Panetta Review appears to have caused between the CIA and the Senate Intelligence Committee, neither side has disclosed much about what’s actually in the document. Feinstein and her allies insist that the summaries back up the findings in the Senate report, while the CIA maintains the review was nothing more than a draft document. Beyond that, however, public information has remained elusive.

Now, though, recent court documents, along with Udall’s new information, are allowing observers to piece together a more complete picture of what the Panetta Review consists of and what, exactly, Senate investigators found when they stumbled upon the document in 2010.

Although a CIA court filing indicated that the text at the top of the Panetta Review documents was unique, Feinstein says the markings were not significantly different from the millions of other documents that were provided to the committee, meaning her staff had no reason not to read the review.

“There is a claim in the press and elsewhere that the markings on these [Panetta Review] documents should have caused the staff to stop reading them and turn them over to the CIA. I reject that claim completely,” Feinstein said in her March floor statement, days after the feud became public.

Regardless of what markings the documents had, though, Feinstein said that Senate investigators were entitled to read them because of congressional oversight privileges.

“We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties,” she said.

The Senate source familiar with the dispute says there’s nothing to substantiate the CIA’s claim that the markings should have raised red flags.

“A number of the “privileges” cited are made-up claims that are not recognized by the Senate,” said the source. “The fact that this particular language referred to ‘DRG-RDI’ as opposed to another CIA entity does not seem particularly significant -- from the Senate’s perspective this particular component of the CIA doesn’t have any special powers to restrict the dissemination of information, beyond what anybody else in the CIA has.”

The CIA offered some initial hints about the Panetta Review in the court document it filed in response to the FOIA request for the document. The Panetta Review itself consists of “more than forty draft documents” relating to the torture program. (It's unclear, though exactly what portions of the document Feinstein’s staff discovered and transported back to the committee’s offices.) The agency has denied the FOIA request, in part because it says the document is a draft record and was never fully vetted. The court filing notes that the summaries analyze less than half of the more than six million documents provided to Senate investigators by the agency, and varied in format. A handful of the summaries were in a more “polished” form, while others, presumably the most recent ones, were only in the preliminary stages when the review was stopped in 2010 and consist only of rough interpretations. And the summaries, despite their initial purpose, were never reviewed by senior agency leadership.

The Senate Intelligence Committee’s description isn’t much clearer. The panel simply says that the Panetta Review, draft or otherwise, makes several of the same conclusions that the Senate itself drew in its own report on the torture program -- conclusions that the CIA refutes, at least publicly.

But in his farewell address on the Senate floor, Udall shed new light on what exactly the summaries say. He said that the Panetta Review acknowledges that the agency had, in fact, provided inaccurate information to lawmakers and administration officials, an allegation made in the Senate report. In contrast, the CIA’s official response denies that it engaged in this cycle of misinformation.

Perhaps most importantly, Udall said the Panetta Review undercuts -- from within the agency -- the CIA’s own staunchest defense of the torture program. The agency's official position is that enhanced interrogation techniques were effective and did produce valuable intelligence. But according to Udall’s statement, the Panetta Review acknowledges that torture didn’t yield the kind of valuable information the CIA claims it did.

“The Panetta Review further describes how detainees provided intelligence prior to the use of torture against them. It describes how the CIA –- contrary to its own representations -– often tortured detainees before trying any other approach. It describes how the CIA tortured detainees even when less coercive methods were yielding intelligence,” Udall said. “The Panetta Review further identifies cases in which the CIA used coercive techniques when it had no basis for determining whether a detainee had critical intelligence at all.”

“In other words,” Udall continued, “CIA personnel tortured detainees to confirm they didn’t have intelligence -- not because they thought they did.”


If Udall’s characterizations are true, the Panetta Review could be key to unravelling the case made by defenders of torture.

Yet despite the sensational feud it inspired, the document played no role in the executive summary of the intelligence committee's torture report that was released last week. Feinstein has said her investigators didn’t rely upon it when constructing their study.

And the Panetta Review itself, which Udall touted in his farewell address as the “smoking gun,” isn’t likely to ever see the light of day.

Asked last week whether her committee had any intention to do anything with the document, Feinstein said no.

"It's classified," she said. "We know what the Panetta Review says, and it essentially backs up our findings. So I think the important thing is to get people to understand the report and understand the strength of the report.”

The Panetta Review isn’t actually the Senate committee’s to release, since it’s a CIA document, although the panel still has its pilfered copy. And the CIA continues to fight the FOIA request to turn over the document. As the agency says in the FOIA suit, even finding the summaries required CIA staff to dig through the office that contains all of its draft records.

Brennan reiterated in a recent press conference that the Panetta Review was a draft, internal document, and therefore should never have found its way into Senate hands. Additionally, he made clear that his agency was not interested in providing the public with any more information.

“I think there’s more than enough transparency that has happened over the last couple days,” Brennan said. “I think it’s over the top.”

The feud, meanwhile, has continued to fester unresolved. The CIA’s accountability review is ongoing, and agency leadership has continued to hedge on questions about the computer search. And since the Senate sergeant-at-arms investigation ended inconclusively, the public will likely never know how exactly staff came to discover the Panetta Review in the first place.

The document itself remains locked away in that Senate safe. The Senate committee continues to believe its importance is monumental, while the agency says it’s nothing more than draft opinions from a handful of agency personnel.

With no clear resolution -- and, apparently, no intention on either side to release the document -- the public may be the ultimate loser.

“There’s reason to be pessimistic about our ability as a society to deliberate over these issues,” said Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, a program dedicated to government transparency. “No amount of gruesome detail seems to change the minds of those who, like Dick Cheney, would ‘do it again in a second.’ And so I think the most discouraging thing to me is the inability of people to rethink their positions. And it may be that nothing will change that.”

But Aftergood added, “If we don’t reach a consensus position on what to do about this, then the issue will just fester, and it’ll recede from the headlines but it will continue to have negative consequences.”

Could the Panetta Review help reach that consensus?

A year after the feud erupted, we still don’t know. The Senate believes that releasing the document would help the country reckon with its dark history of torture. But the agency insists that isn’t true.

The American people aren’t likely to find out anytime soon.

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