March 12, 2014–Senator Dianne Feinstein’s laying down of the gauntlet yesterday has already resulted in a flurry of developments. Like two trains racing toward each other down a single track, the Senate Select Committee on Intelligence (SSCI) and Central Intelligence Agency (CIA) seem headed for a collision. In this secret world the crisis may have begun weeks ago but now it becomes visible. If the latter is the case it is already too late to avert a Family Jewels crisis, though if the collision is only now beginning there may still be time.
Under John O. Brennan, the CIA has been all about business as usual. As noted previously here (“The CIA Bamboozles Congress–Again,” March 6; “Focus on Congressional Oversight of Intelligence,” January 25, 2014; and elsewhere) the agency has been treating the oversight committees as a stage on which to spin whatever message they want. Historically there has been a cycle of ascendancy in the exercise of the oversight power and since 9/11 the CIA has been in this mode of regarding Congress as a marginal irritant (“The Fire Behind CIA’s Smoke,” March 7). So it remains defiant right now.
Brennan no doubt expected the Senate intelligence committee to go public in some way. He arranged a speech of his own for yesterday, one he gave at the Council on Foreign Relations. The CIA director went out of his way to advert that, when taking his oath of office last year, “I had the privilege of placing my hand on the very first printed copy of the Constitution.” The allusion was obvious. Much later in an otherwise pedestrian speech Director Brennan came to the matter of his current imbroglio. He believes in congressional oversight, he says; the CIA is better for it, Brennan declared; “and as long as I am director of CIA I will do whatever I can to be responsive to the elected representatives of the American people.”
John Brennan went on to say that he did not always agree with the SSCI and its House counterpart, and that they “frequently” have “what I would call ‘spirited’ and even ‘sporty’ discussions.” So what does that mean? In the case of the SSCI torture investigation, the CIA has buried the Senate torture report for fifteen months, most of that time with Brennan at the helm, and filed a misleading rebuttal, which it is also withholding from the American people. Senate staff have had more than sixty hours of discussion with CIA officials without effect. An SSCI member asked the CIA to release a parallel document, the “Panetta review,” which differs from the CIA rebuttal. Silence. Senator Feinstein, the chairwoman, raises that request too. No answer at first, then denial on the grounds the Panetta review is a “pre-decisional” or “deliberative” document.
I did not want to open this particular acorn yesterday, but it is important in this crisis so now I will. The “pre-decisional” exemption is a new category of secrecy invented by George W. Bush. The supposed idea is to protect the advice given to presidents. I cannot say exactly where the motive lay but my suspicion is he wanted to shield the rationales for decisions made by his father, George Herbert Walker Bush, whose papers were just then coming into the system, and, of course, his own for when the time comes (presidential papers are supposed to open after twelve years). The Panetta review, according to the CIA, is untouchable because it is a deliberative document. But the substance of the Panetta review, we are told, is a summary of the CIA records which were going to be made available to Senate investigators. There was nothing “decisional” about it–unless the decision was about what evidence should be suppressed and kept away from legally authorized investigators.
If this were a criminal case, the withholding of the Panetta review would be obstruction of justice–as was the CIA’s destruction of videotapes in this very same matter–and the deliberative secrecy would be conspiracy. By the CIA’s lights, however, that privileged it to suppress the Panetta review. But there is still more: The CIA’s official rebuttal to the SSCI report, personally delivered to Senator Dianne Feinstein by Director Brennan on June 27, 2013, is also classified as a “deliberative” document. Right there this should dispose of the argument that deliberative documents cannot be accessed.
There are three points to be made here. First, the CIA is arrogating to itself a secrecy protection created for presidents. Second, the “deliberative” exemption, if it properly exists, is being stretched to cover materials that have nothing to do with decisions. By this standard anything can be a deliberative document. Third, CIA selectively applied the exemption depending upon its interests of the moment, and for its own purposes. This is not national security protection it is political cover.
Then agency officers conducted an unauthorized search of SSCI computers. Director Brennan at least informed the Senate committee when he discovered this had happened, but the CIA then refused to respond to SSCI inquiries about the intrusion, and a CIA lawyer–a principal character in the torture story–filed a criminal complaint against the Senate investigators. So this is responsiveness to legislative oversight? You decide.
This CIA story on the “RDI” (“Rendition, Detainment, Interrogation”) project–it has acquired a new name here–is on a par with the NSA eavesdropping program. On that front–also yesterday–the new NSA director testified at his nomination hearing that he favors continuing the dragnet coverage. And then there is the CIA drone war, on which information was also kept from the congressional committees. These are Family Jewels.
We are swiftly coming to a Family Jewels crisis. These kinds of eruptions follow a pattern which I have detailed at length elsewhere. A president starts by shielding the intelligence agencies. Barack Obama did that in 2009 when he turned aside public pressures for an inquiry into these excesses. But when presidents become politically threatened by their actions they circle the wagons and let the intelligence agencies flap in the wind. This happened in the “Year of Intelligence,” 1975, the time of the Church and Pike investigations; in the Iran-Contra affair, and again in the 1990s on Guatemala.
There are enough skeins in the current disputes to indicate Obama finds himself in a similar situation today and is beginning to do the same thing. He cooperated in the initial suppression of inquiry. He went along with withholding data on the drone killings and NSA eavesdropping–and then he defended the NSA dragnet. In the early days of the Senate committee investigation, McClatchy News has reported, the White House supported the CIA in withholding some 9,400 documents from SSCI investigators. Dianne Feinstein has now revealed that SSCI met with White House lawyers in 2010 when it first discovered CIA had been removing documents from its investigators’ cache. The CIA “search” of SSCI computers in January of this year represents a transgression against undertakings the White House made to the Senate intelligence committee then. White House press aides have told the public that Obama “favors” release of the SSCI report and expects it will emerge–but the president has not responded to repeated specific requests from SSCI member Mark Udall. He has told reporters that it would not be proper for him to become involved at this time.
The Justice Department recently said in a legal filing that the SSCI torture report is in the jurisdiction of the Senate intelligence committee (walking back the CIA’s claim that declassification power belongs only to it), and the White House has commented that the Senate should act. President Obama himself, in his first public remarks on the subject, said that the issue is “not something that is an appropriate role for me and the White House to wade into at this point.” Meanwhile, the president’s chief of staff and top lawyer visited with Senator Feinstein after her speech. Obama has become vulnerable. It looks very much are if the wagons are being circled on Pennsylvania Avenue.
[This post has been revised based on news reporting of March 13, and subsequently again in order to include Mr. Obama’s direct quote.]