January 5, 2015–There are smiling faces today among our intrepid spies, their acolytes, and the political figures who stand behind them. The CIA looks to have dodged a bullet on the torture investigation accomplished by the Senate intelligence committee, and the NSA dragnet eavesdropping is safe pending the legislation authorizing it coming up for renewal. Meanwhile, because the Republican Party won control of the Senate in November’s election, the intelligence oversight committee leadership will switch parties. Saxby Chambliss, the Georgia Republican likely to take over from Diane Feinstein, is even more a pushover than she has been.
Game over? The smiling spooks would like to think so. They have fed friendly reporters–like Walter Pincus of the Washington Post–a diet of cherry-picked evidence designed to substantiate their claims. Pincus, with his increasing tendency to cull details from a document and recite them without pondering the deeper meanings of evidence, is making their case. A big conquest was Mark Mazzetti of the New York Times, who ten days ago (December 27) published the spooks’ dream article, “After Scrutiny, CIA Mandate Is Untouched,” which sought to explain why the agency this year, unlike the cauldron of 1975, has succeeded in scooting by its overseers.
Don’t believe it! Not for a minute. What we are witnessing is the end of a cycle of oversight of the intelligence community. As I discussed at some length in Safe for Democracy, since its creation the current system has featured a flux in which key overseers of the spy system compete for primacy, which shifts between the White House and Congress. That cycle went out of kilter after 9/11, with the White House leading CIA and NSA into a prohibited zone of illegal activities, and ordering them to bamboozle Congress. The intelligence committees–at that time under Republican control–were happy to go along. The cycle would have stayed in balance had President Obama enforced accountability. Over the past six years, while Democrats led the intelligence committee, the torture investigation essentially represented an effort to override Obama’s veto. That has failed, but the real meaning here is that the system of congressional oversight of intelligence has shown itself to be bankrupt– and moribund. More than that, suppression of a wave of legitimate criticism affects the harmonics of the dispute: next time around the metastable energy will make a new wave of criticism even more powerful. The pieces are already in play to make that happen. Consider:
Item: Relying upon Republican-controlled intelligence committees to get the CIA and NSA off the hook merely increases the damage that partisanship has already done in this vital field of national security. When leadership in the Senate changes again, the controversies left hanging right now will simply roar back to the front. Once the grip of partisanship is complete, the old management techniques become useless. The spooks enjoyed marked advantages under the old system. The next oversight mechanism, not yet conceived, cannot be predicted. The spooks are exchanging known quantities on a platter for the contents of a paper bag.
Item: The spooks and their acolytes have been relying upon invidious comparisons between the Senate intelligence committee’s torture report and the study that committee did of the Iraq prewar intelligence, contrasting the claim that many interviews were done for the Iraq reports with this round, where Senate investigators avoided such interviews. That was because the same CIA officers were under simultaneous criminal investigation and evidence could be tainted by its appearance under congressional questioning, as had previously occurred in the Iran-Contra Affair.
The Iraq WMD versus torture report comparisons are a loaded hand grenade waiting to go off. If I were one of the officers implicated in this affair I would avoid comparisons like this at all cost. The Iraq WMD report was the product of the Republican-led committee, so on one level this argument is like saying Republican reports are good but Democratic ones bad. That will be firewater when Democrats return to the helm at the intelligence committee.
Equally to the point, the Senate committee’s Iraq WMD report was itself gravely flawed. For one thing, the volumes had to be virtually dragged out of the committee over a period of several years. The Republican leadership of the committee also deliberately left out important subjects of inquiry to shield the Bush White House, and they rejected including questions to which the Democratic members sought answers. The Republicans at the Senate committee bent over backwards in the WMD reports to avoid any conclusion that the CIA had been ordered to find Iraq to be possessing WMDs and colluding with Al Qaeda.They further resisted making any conclusion that the White House had then used these flawed CIA reports to justify invading Iraq.
The Iraqi “cakewalk” is soon to enter its twelfth year. The Senate committee’s WMD report is a very deep black mark, not an exemplar of sound investigative practice. –And while we are on the subject of interviews (evidence) it is worth making several points. First, the Bush administration denied numerous documents to the congressional committees performing these inquiries, so the “evidence” objection in its case simply applies to a different form of material. Indeed, the intelligence committee’s investigators did a number of their interviews to compensate for missing documents. In the torture report the investigators were denied documents too, enough so that the White House had to intervene to adjudicate the dispute.
In other words, in both cases there is evidence of CIA and White House cover up, not of responsiveness to Congress. If the reports are to be denied because of limitations of evidence, that really says Congress is not capable of comprehensive reporting on U.S. spies because it can never get the full story. Conclusion? The oversight system has broken down. (We’re back where we started up above.)
Arguments over the interview evidence also fail to take the nature of interviews into account. The Senate investigators did have access to the Department of Justice and FBI records of interviews with the CIA principals in this story. It is therefore disingenuous to say the investigators never “talked” to anybody. The Justice/FBI people were asking the same questions that concerned the Senate investigators, and the CIA officers were giving answers that we can assume are at least related, if not identical to, what they would have said to a Senate investigator asking the same question.
If, on the other hand, the spooks’ line is that they would have said something different to the Senate committee, that raises questions of veracity in interviews (not to say perjury in their original comments to the FBI) which calls into question the value of the interview evidence as a resource for the Senate investigators.
This is a very slippery slope. Were I among the CIA officers threatened by this controversy, I would be asking whether the basis for their complaints regarding the Senate report has really been considered thoroughly.
Item: While complaints about the Senate report sort of evaporate when they are examined, those about the CIA’s own actions do not. The torture was real. In the law it does not matter–except to make the crime more grave– how many times, when it started or stopped, how many were the victims. Who authorized the torture–whether it was the White House or some rogue CIA element–only matters for how wide is the circle of guilt. This is why Walter Pincus’s defense of the CIA is so weak. That the CIA sought to preserve a standby capability for torture even after it had stopped only increases its culpability. (That last point directly implicates Michael Hayden on his watch.)
The CIA officers have put up documents that reveal where, when, and how the Bush White House gave the agency assurances it was committed to the torture and fully backed the CIA. Here is an issue that directly threatens presidents. Here, in effect, the CIA is saying to their top boss, “Mr. President, we’re going to save our asses, and if that means blowing your cover, so be it.” It was a threat Richard Helms had made to President Gerald Ford. Now John Brennan’s CIA has actually done this. Were I Barack Obama–or his successor–I’d be plenty worried about this. Here is another reason why failure to exact accountability right now is such a grave error.
Other real things in this sordid story include the CIA misinforming its overseers while these events were taking place, limiting information to the Senate intelligence committee, trying to get inside the Senate committee’s decision cycle (that was the real meaning of the “Panetta Report,” a survey of what the documents could be expected to tell the investigators); its countersurveillance of the Senate investigators by hacking their computer network; its filing a false criminal complaint against the Senate inquisitors; its dragging its feet in making documents available; its effort to force changes to the Senate report in the interest of “historical accuracy;” and more.
Item: In contrast to a two-year delay in actually declassifying the Senate investigative report, the CIA moved extremely rapidly on releasing the documents its former officers used to defend themselves from the torture charges. (These are the papers referred to above.) The declassification markings on these documents suggest that agency officials moved to release them even while they continued to hold up on opening the Senate report itself. Unlike the senators, who had to wait two years, or many among the public, whose CIA declassification (FOIA) requests languish–and are still languishing–five, eight, fifteen years or more, CIA officers can obtain the immediate declassification of top secret information to be used for political purposes. The move to declassify this information took precedence over a pre-existing caseload of FOIA requests, gave unauthorized special status to former CIA employees, and privileged them even over their congressional overseers. This is a clear breach of the CIA’s own regulations and a presumptive violation of law (5 U.S.C. 552 et. seq.). We can debate whether it is also a criminal offense (a violation of the Espionage Act in precisely the same way as the revelations of Edward Snowden, for example, someone that Fearful Leader Clapper has been ranting about).
Bottom Line. In a desperate drive to avoid accountability and criminal liability, the intelligence agencies–and so far only the actions of the CIA are hinted at–have engaged in a pattern of deception and threat. A threat to Senate overseers was made explicit with referral to the Justice Department, one to the president is implied in the latest batch of document releases. The outstanding issues will only be cloaked by the new Senate intelligence committee. These issues will return when committee leadership changes–and the whole complex shows that the existing system of intelligence oversight in the United States no longer functions properly.
The sentiment expressed in the Times–that the CIA has gotten a pass because the report is out but no changes have yet occurred in terms of public management of and accountability for intelligence activities–is simply a whistle in the wind. In the first place the machinery of government grinds slowly. In the much heralded “Year of Intelligence” of 1975, which Mark Mazzetti spends a good deal of ink on in his article, one of the recommendations of the Church Committee was that there be a written charter for the spy agencies voted into law. It was actually 1977 before serious discussions of a “CIA charter” took place on Capitol Hill, and 1980 until Congress considered the most serious charter proposal. The Reagan executive order No. 12333, often cited as the spies’ charter, was a project undertaken specifically to head off congressionally-enacted restrictions. It did not emerge until 1983. You’d be foolish to think that the absence of action three weeks after appearance of the Senate torture report meant anything, much less that the culprits had escaped.
More than that, there is no statute of limitations on torture. That is the meaning of the French-Algerian, Chilean, Peruvian, Salvadoran, Guatemalan, and, lately, the Brazilian cases, some of which have been mentioned in this space. The torture will follow the CIA through time, coloring people’s view of it. There can also be no confidence that international or other national courts won’t take up the task from which U.S. authorities recoil. A process conducted within the United States would at least be under the control of American authorities. You can see how misguided has been President Obama’s effort to avoid accountability in the CIA torture and obstruction of evidence.