Poles of a Magnet: Jim Schlesinger and Lawrence Walsh

March 27, 2014–Sometimes events pile atop one another, almost too quickly to respond. That’s the case this week, where almost simultaneously we see news of two important passages, the deaths of Lawrence E. Walsh and James R. Schlesinger. Once I got a moment I’d intended to write something about Lawrence Walsh because of his role in the Iran-Contra Affair, but before I could put finger to keyboard, this afternoon’s news brings word that Mr. Schlesinger, too, has passed away. The two men, both staunch Republicans, are linked in an unusual way, not due to their political affiliations but each figured in one of the central upheavals of America’s late 20th Century.

Lawrence E. Walsh was a lawyer, active from the mid-30s on. He served as an assistant district attorney and in other legal posts in New York City, as a counselor to New York governor Thomas E. Dewey, at the time the latter ran for president against Harry Truman in 1948 (losing in a breathtaking upset), as a federal district judge, and as deputy attorney general during the last part of the Eisenhower administration. For a long time Walsh worked as a lawyer in private practice, emerging briefly during the Nixon administration as deputy chief negotiator in the Vietnam peace talks in Paris. But his most important service by far was as special prosecutor in the investigation of the Iran-Contra Affair from 1986 to 1992.

Walsh had great respect for the law as well as for the political dimensions of legal matters. Whether he learned that as a DA, with Thomas Dewey, or in the Eisenhower Justice Department, which was obliged to enforce civil rights rules after the Supreme Court’s Brown v. Board of Education decision, I don’t know. But when it came to Iran-Contra, where his political inclination was to help protect President Ronald Reagan, Lawrence Walsh worked steadfastly to get to the bottom of the morass of one of the most extensive cover-ups of the age. The special prosecutor would be stymied at every turn–his evidence tainted by Congress’s insistence on immunizing witnesses at its Iran-Contra hearings, by lack of cooperation from Edwin Meese’s Justice Department, by the mass amnesia of National Security Council staff aides and CIA officers who professed not to remember activities with which they had been intimately associated over a period of years.

Despite every obstacle Walsh and his investigators succeeded in building cases against fourteen U.S. government officials and obtained convictions in eleven of those cases, including those of national security adviser John M. Poindexter and conspirator Oliver L. North. Most of the convictions were set aside by higher courts on the strength of the congressional immunities previously extended to the defendants. The remaining culprits were pardoned by the first President Bush when he was headed out the door at the end of his presidency and Walsh was on the point of prosecuting the former secretary of defense, Caspar W. Weinberger.

Walsh’s investigation concluded that both Ronald Reagan and George H. W. Bush–at that time the vice-president–bore significant responsibility, that CIA director William J. Casey had been a major player, abetted by Secretary Weinberger and others, and that the highest levels of the government had conspired to evade U.S. law in selling weapons to Iran, with subordinates smuggling some of the resulting money to Nicaraguan contra rebels run by the CIA. Walsh found Reagan and Bush not in criminal jeopardy, but certainly guilty of poor management and potentially vulnerable if their foreknowledge of the affair was other than had been represented.

I have written before in this space of certain secrecy rules enacted by the second President Bush–George H. W.’s son–when he came to office, which gave former presidents a say in the declassification of records pertaining to them. In my view these rules were almost certainly instituted to protect the first Bush from the consequences of his role in Iran-Contra. These rules have made a mockery of declassification regulations as they pertain to the Reagan-Bush era.

Like the pole of a magnet Lawrence Walsh attracted the opprobrium and criticism of many from his own political party.

I never met Lawrence Walsh, but I did meet James R. Schlesinger, first in his early guise as a nuclear weapons expert and analyst at the RAND Corporation. Schlesinger was a Harvard-trained economist who came to defense analysis, which I studied at the time, as a proponent of what was called “operations research.” Richard Nixon brought Schlesinger into his administration to lead the Office of Management and Budget. In that capacity, in 1971 Schlesinger conducted an efficiency study of the U.S. intelligence community on Nixon’s behalf, at a time when the president sought an excuse to pare the CIA’s budget. Mr. Nixon later appointed Schlesinger the CIA director. It was Mr. Schlesinger who commissioned the notorious CIA report called The Family Jewels. It was that document that lay directly behind the CIA and NSA abuse scandals of 1975, the “Year of Intelligence,” about which much has appeared on this website of late. Needless to say, CIA and NSA officers were outraged that U.S. government authorities presumed to investigate their activities. Schlesinger soon left to head the Pentagon, where his fights with Henry Kissinger became the talk of Washington.

I saw Mr. Schlesinger on a number of occasions in later years, often at CIA-hosted events, where he was always honored. His role as Mr. Nixon’s gunslinger had apparently been forgotten. I’d not be surprised to see Kissinger show up as a speaker at Schlesinger’s memorial service. Perhaps Mr. Schlesinger’s was an opposite magnetic pole–opposites attract while like poles repel. How else to account for the very different treatment accorded these two Republicans? We’ll see.

NSA Eavesdropping Scandal: The Dam Cracks

March 25, 2014– The ground has begun to shift under the dam that has so far protected the National Security Agency in its dragnet metadata program, much as appears to be happening for its sister three-letter agency across the Potomac. Yesterday in Amsterdam, tastefully posed in front of the Rembrandt painting “The Night Watch,” President Barack Obama put his first nail into the coffin of NSA domestic spying. So far we have only sparse details of the Obama scheme and there will be more to say about it once the picture focuses, but the change in the president’s tone and the general direction of his proposals is already clear. This is about showing that the White House is in charge.

It seems the impact of broad public criticism, the weight of the accumulating pile of blue-ribbon panel reviews and court findings that find the NSA dragnet illegal, and, most particularly, the vocal opposition of the high technology corporations whose bottom lines are being clobbered by the NSA’s stubborn resistance to changing its intrusive spying, have had an effect. Historians may one day tell us this was inevitable–and sharp analysts have seen it coming all along. James Clapper and Keith Alexander, the spy mavens who tried to plug the dike with their fingers (was Obama sending a message by staging his Rembrandt scene?) way overplayed their hand, relying on the secrecy card to protect eavesdropping that skirted close to the precipice of the law and could not be justified on its merits.

This was inevitable because it is inherently political. To preserve their presidents’ freedom of action, White House staffs work to show movement and responsiveness. The present situation tracks very well with the events of 1975, the “Year of Intelligence,” the time of the Family Jewels.

Mr. Obama reacted to the Snowden leaks by setting up a presidential review panel, which surprised him by delivering a negative judgment on the NSA eavesdropping. He tried to protect the program, which became steadily more controversial. Against mounting pressure, in January the president gave a speech promising reforms, and invited the hi tech corporate heads in advance to outline his proposed remedies. Those reforms were essentially cosmetic. He invited Clapper and Alexander to a White House state dinner to denote his continuing support. Evidence of the spies’ extravagance continued to mount. The president had said he would deliver details toward the end of March and he did so, yesterday, at the Rijksmuseum in Amsterdam. That Mr. Obama chose a foreign locale to articulate his detailed proposals is significant–European, Latin, and other nations have been among the most strident critics of the NSA dragnet. This time, like the last, Obama had the tech chieftains to the White House in advance to unveil his design and solicit their comments.

During the “Year of Intelligence,” the White House moved swiftly to show activity when evidence of abuses emerged. President Gerald R. Ford created a blue-ribbon commission, headed by Vice-President Nelson Rockefeller, to examine the allegations. It was unable to deliver a clean bill of health because the abuses were real. Investigative committees formed in both houses of Congress. White House staff crafted a plan to defend the intelligence agencies, carefully vetting every document they permitted to be given to the congressional investigators. More abuses were revealed. The White House then set out to demonstrate its responsiveness by drafting an executive order that President Ford would issue which established the first detailed charter for U.S. intelligence activities. Mr. Ford could then take the credit for action.

Sound familiar?

What is different between 1975 and 2013-2014 is that during the Year of Intelligence the CIA chief, then William E. Colby, realized that the intelligence agencies had to respond to allegations. In the present crisis Jim Clapper and his colleagues at NSA and CIA tried to stifle criticism by stonewalling, evoking false visions of threat, and making phony claims of achievement. That strategy, weak on the face of it, is now revealed as bankrupt. As I have said in this space before, Clapper should go.

What is the same is the evolution of the situations. There is a pattern to Family Jewels crises. It is time to create a mechanism to avoid them.

What do You Say About a Country like Ruthenia?

March 24, 2014– Remember Ruthenia? I thought not. How about Carpatho-Ukraine? Transylvania? Bessarabia? Bukhovina? Danzig? The Curzon Line? Maybe Sudentenland. I’ve no time today for anything very ambitious–and my pardons to the songwriters of The Sound of Music–but I just wanted to put one disturbing issue on the table. All those (Central European) places have in common that they were subjects of claims and counterclaims based on national preferences and/or ethnicities in the period between the two world wars of the 20th Century. Some of them were even awarded from one nation to another, or made into free state enclaves during various diplomatic parlays of the time.

Here’s the issue: the latest rumblings to emerge from the Crimean crisis are mentioning a Russian interest in Transnistria (never heard of that either?–not surprised). It’s a piece of land in between Ukraine and what is now Moldova. I mention these places–you could pick any continent and find similar examples–because the current problems in Eastern Europe increasingly seem to be opening the door to assorted territorial claims. There used to be a word for this. In the 1919-1939 period it was called “irredentism” and considered by some to be a cause of World War II.

The Balkan wars in the former Yugoslavia during the 1990s show very clearly the dangers and insanity of the use or threat of force to impose border and nationality changes based on claims of national preference or ethnicity, real or imagined. At the moment this is being driven by Russia, which ought to have learned better from Chechnya. Regardless of the border change there is always a significant minority population, suddenly oppressed, to become restive and resentful. The better solution to changing borders is to eliminate them by fostering political inclusiveness within and among states. Someone should stop a minute and think this through. The world has enough problems already.

Spy Scandals Update

March 20, 2014–Don’t think for a moment that the Spy Scandals involving the Central Intelligence Agency (CIA) and the National Security Agency (NSA) have gone away. Today there are several relevant items to report.

A week ago I argued in this space (“The Family Jewels Crisis,” March 12, 2014) that presidents circle their wagons when controversy that arises from the intelligence agencies rises to a certain level. In my book The Family Jewels I showed how that works. Now we have more evidence that that is happening. You’ll recall that the CIA filed a criminal notice to the Department of Justice alleging that investigators from the Senate Select Committee on Intelligence broke the law in obtaining a document demonstrating the CIA’s response to the Senate torture report is disingenuous. Now Attorney General Eric Holder has commented. In his first public remarks on the matter Holder says that the Justice Department receives many criminal referrals and often declines to investigate or to prosecute.

That sounds suspiciously like an intention to cut the CIA loose and leave it flapping in the wind. You can be sure there will be more on this.

Meanwhile there’s also a fresh development in the NSA eavesdropping scandal. National Security Agency officials showed up yesterday to testify at PCLOB, the awkwardly named Privacy and Civil Liberties Oversight Board, which continues to be quite alarmed at the agency’s dragnet eavesdropping (see “Funny Name, Serious Business,” January 23, 2014; “”Independent Agency Trashes NSA Claims,” January 24, 2014). Appearing at PCLOB’s latest hearing were the Director of National Intelligence’s top lawyer, Robert S. Litt, plus NSA general counsel Rajesh De. Their testimony ought to raise eyebrows.

Robert Litt here added to his growing reputation as an apparatchik. Referring to PCLOB’s recommendation in its January report that the Foreign Intelligence Surveillance Court (FISC) be required to approve each NSA use of its dragnet-gathered data, Mr. Litt did two things. First, he admitted that the number of NSA uses of the data was far greater than previously thought. Second, he asserted that “the operational burden” of requiring the FISC to make those judgments would be excessive. The judges, Litt declared, “would be extremely unhappy if they were required to approve every such query.”

Translation: the system should operate for the convenience of the judges (and of the NSA) rather than for the protection of the public’s civil and privacy rights, which, of course, was the purpose for which the Court was created.

The arrogance here is breathtaking.

As for Mr. De, he told PCLOB that an NSA rule previously touted as protecting Americans–that agency personnel must be at least 51 percent confident their target is a foreigner–is a myth. It does not exist. Rather, determinations are made based upon the “totality” of the circumstances. In effect this means that the NSA, which is dealing with anonymous phone numbers, is freed from employing any objective criteria whatever.

No doubt there will be more here too.

The Mission: Crimea, Dien Bien Phu

March 20, 2014–Sixty years ago today it was foggy in Long Island Sound—much like it was in Washington this morning–as the trans-Atlantic flight lined up on its approach to Idlewild Airport (today Kennedy). The plane bore a top French general on an emergency mission. He was General Paul Ely, the chairman of the French Joint Chiefs of Staff, and the mission was to beg for all kinds of U.S. military aid. In Indochina the French garrison in the mountain fortress of Dien Bien Phu had come under attack and suddenly all the old assumptions were in question. The Ely mission was a desperate gamble to secure U.S. help. General Ely went in thinking merely of planes, guns, and ships. But while he was in Washington the question of an American intervention was put on the table by U.S. officials.

You can read all about the Ely mission here. But my purpose today is more immediate. The Dien Bien Phu crisis of 1954 bears useful comparison with the maneuvering today over the Crimea. Russian president Vladimir Putin is using his military forces to annex the Crimea, which used to be Russian but became part of the Ukraine until this past weekend. Ukrainian forces are weak, no match for the military power Russia can bring to bear. Leaders in Kiev, the Ukrainian capital, are as desperate for American help as the French at Dien Bien Phu.

The two crises are different in any number of ways. In the Crimean crisis we are talking regular troops, not a guerrilla army versus a Western one. The present crisis is a matter of state power, not revolution. But what is similar is the structure of the two situations from the point of view of the American president.

Indeed, there is a mission involved here too–Vice-President Joseph Biden’s sudden trip to Poland and Lithuania, lands abutting Russia (the former the Ukraine as well) who are alarmed at the events unfolding. Biden’s reassurances to concerned leaders mirror those American officials gave France in 1954.

Like Dwight D. Eisenhower then, Barack Obama would like to sustain the Ukraine and preserve its territorial integrity. (We’ll leave aside the question of the respective Russian and Ukrainian claims on the Crimea.) But from Washington’s perspective the question must be one of deployable military force. In 1954 President Eisenhower had plentiful naval and air power with which to intervene. Officials who opposed that course argued that those kinds of forces would prove insufficient and that ground troops would be necessary to make an intervention work. Eisenhower took measures to signal his intentions while his top advisers dickered over their course.

Obama is acting in the same fashion. The Biden mission is one signal, as is an invitation to the Ukrainian prime minister to visit Washington. Air Force F-15 and F-16 fighters have been sent to Poland and Lithuania to betoken U.S. capabilities to act. Just a week ago the main strength of the U.S. Sixth Fleet in the Mediterranean, the task force built around the nuclear aircraft carrier George H. W. Bush, made a port visit to Turkey, at the entrance to the Black Sea, where lies the Crimea and the littoral nations of Russia and Ukraine. One warship from that force, the guided missile destroyer Truxton, went on into the Black Sea, where it visited a port in Rumania and conducted exercises with the Rumanian and Bulgarian navies. Authorities in Washington say the naval moves are all long-planned actions but their function as signals is still clear.

Washington’s problem today, just as in 1954, is the mismatch between U.S. capabilities and the measures that would be required to obtain the outcome it prefers. A guided missile destroyer and a few fighter-bombers are not going to stop the Russian army. The whole Sixth Fleet also lacks the necessary capacity. Boots on the ground would be required. Most American boots are in Afghanistan or in the process of returning to the United States and being reconstituted. The only nearby available U.S. ground force is the reinforced battalion combat group that is the 22nd Marine Expeditionary Unit in the Mediterranean, which recently participated in maneuvers in Greece.

If anything, in 1954 Dwight Eisenhower possessed greater capacity to act in the local situation–but there it did not work either. In the current situation, if the signals are too many or too forceful there is a danger of inadvertent escalation. Mr. Obama will need considerable diplomatic dexterity to get out of this situation without harming relations with either the Ukraine or Russia (the latter being already bad enough).

Meanwhile Kiev is sending its own signal–instructing Ukrainian military forces to evacuate from the Crimea. Mr. Putin may have succeeded in his annexation. Let us hope that this crisis does not sharpen any further. But some attention to historical precedents like Dien Bien Phu might help officials to clarify their thinking.

Yesterday as Today: Comment on Hot Documents on CIA and the Church Committee

March 15, 2014–Today I’m posting a set of documents from 1975, the time of the first great congressional investigations of U.S. intelligence. In today’s swirling arguments over access to CIA records by Dianne Feinstein’s Senate committee the unseen issue is what were the CIA-Senate access arrangements and who approved them. In 1975 access to CIA records for the committee led by Senator Frank Church posed the same dangers during the presidency of Gerald R. Ford. The documents show that, far from keeping hands off the Senate-CIA dispute, the White House held center stage. The same circumstances applied during the Iran-Contra Affair, starting in 1986. Although we still do not know the truth it is a high order probability that the Obama White House has taken a similar approach.

The specific papers in this selection show that White House officials laid out the issues for President Ford, that they devised restrictions to limit what congressional investigators would be permitted to see, that they held meetings with agency officials to hammer out the details, that Senator Church tried to set out his own investigative terrain, and that the CIA prepared a final set of restrictions. These it sent to the White House, where they were sent for approval to the deputy assistant to the president, Richard Cheney.

The Hot Documents are available as an item in the “Downloadable” section of this website. Follow the instructions there. The item appears under several categories in Downloadable.

CIA: On the Hook

March 13, 2014–“We want this behind us.” Thus said CIA director John O. Brennan during the question and answer session following his Council on Foreign Relations speech on Tuesday. He also said, “We are not in any way, shape, or form trying to thwart this report’s progression, release.” Which begs the question, why hasn’t the CIA declassified the document?

In 2010 the agency shifted blame to the White House, alleging that Obama’s staff had ordered it to remove documents from the Senate Select Committee on Intelligence (SSCI) computers used in the investigation which produced this report (the president’s top lawyer denied that). This time White House cover is not available. The president’s spokesman has said the White House wants the report out too. The Senate intelligence committee certainly does also.

So where is the report?

Returning to the agency after that speech, Director Brennan issued a message to CIA employees. He told them that the agency “tried to work as collaboratively as possible with the committee,” and cited his extensive meetings (arguments–Brennan himself characterized the contacts as “spirited and even sporty”) with SSCI leaders as evidence of that.

Of course, we already know that the CIA had a monitoring team charged with going over every document made available to the investigators, multiple times. Several thousand documents were denied at that level. McClatchy News reports today that 9,400 documents were denied during the early period on executive privilege grounds. It is not clear whether this report refers to the same set of documents the CIA previously admitted removing. If it is, that’s not very good either–it would mean the agency was misrepresenting by two-thirds the amount of material actually extracted. If these are separate reports they indicate the withholding was even more extensive than previously represented. And note–this was separate and independent from the two actions in 2010 when over nine hundred additional documents (or pages) that had already been handed over were removed from the cache that was available to investigators. The CIA’s eventual response to the SSCI investigation would state, “We disagree with the Study’s contention that limiting access is tantamount to impeding oversight.”

The dispute over the 2009 Panetta review document (see “Senator Feinstein Comes Out of the Closet,” March 11, 2014) sheds more light: the CIA has denied this document to its own congressional overseers. Two arguments have ben used to justify that action. One, the pretention this paper was “pre-decisional” and therefore exempt, I dealt with yesterday (“The Family Jewels Crisis,” March 12, 2014). The other is that because the Panetta Review was compiled in 2009 it fell outside the scope of the SSCI inquiry, which was dealing with events up until 2006. This is disingenuous for two reasons. First, the congressional committees have an absolute right to review any CIA document for any reason to do with their oversight function. That Langley makes an issue of “scope” merely demonstrates it is relying upon precise literal interpretations of prior arrangements–which is the antithesis of Brennan’s claim to be working collaboratively. Second, the Panetta review was compiled as a summary of the same documents that were within the purview of the SSCI inquiry. Thus they are derivative of those materials and a legitimate argument can be made that the review should be accessible even within the agreed scope.

Contrast this denial with Brennan’s own actions. In a statement undoubtedly intended to shore up agency morale, the director told his employees “we also owe it to the women and men who faithfully did their duty in executing this program to try and make sure any historical account of it is balanced and accurate.” Director Brennan then proceeded to release to the entire CIA workforce the private letter he had written on January 27 to Chairwoman Dianne Feinstein of the SSCI, disputing the Senate committee’s demand for the Panetta review, claiming “significant Executive branch confidentiality interests” in the document, and alleging a classification breach had occurred.

(Parenthetically, the security marking on this letter is “Unclassified/For Official Use Only,” a grading which in recent years has repeatedly been construed as conveying a degree of secrecy protection, but which Brennan ignored in his release of it, not to mention its status as a private communication. The release of this document had to be for the purpose of providing ammunition to critics of the SSCI inquiry.)

“Balanced and accurate” history? Sounds like Fox News. Let’s take up the matter of the notorious CIA refutation of the Senate’s investigative report, which is also at the center of this dispute. Former CIA general counsel Stephen W. Preston was grilled about this rebuttal in August 2013. These facts came to the surface in Preston’s questions for the record: The CIA response was commissioned by Michael J. Morrell, then the acting director, who had been the second in command of the operations directorate when the rendition and black prison project was initiated. It was Morrell, according to his chief lawyer, who “deemed it impractical to respond on a line-by-line basis.” So the twenty conclusions in the Senate report’s executive summary were farmed out among a response team for a “deep dive.” Each analyst took his subject, reviewed what the SSCI concluded about it, and may have consulted either or both the underlying detailed text and the documents on which the Senate committee had based their conclusions. In other words, in compiling its rebuttal no one at the CIA even read the entire SSCI report.  Preston admitted, “the agency’s response does not constitute an encyclopedic treatment of the SSCI study.”

The reasons the CIA is on the hook today is that it is losing White House support while still being unable to countenance the surfacing of an awesome body of evidence demonstrating its misbehavior–not in the abusive torture program alone but also in the details it furnished the Justice Department for those outrageous torture “opinions,” and in the information it provided to Congress. National security is not the reason Langley won’t release the Senate torture report or its response. This is about Family Jewels.


The Family Jewels Crisis

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.]

Senator Feinstein Comes Out of the Closet

March 11, 2014– The chairwoman of the Senate intelligence committee, Senator Dianne Feinstein, is taking the gloves off. In a speech earlier today in the Senate chamber, the Senate Select Committee on Intelligence (SSCI) chief hit back at the Central Intelligence Agency for its innuendo campaign painting black hats on the SSCI investigators by accusing them of absconding with classified documents.

Senator Feinstein (D-CA) says she has been reluctant to bring this out into the open, having attempted to solve the problem privately with CIA director John Brennan. On January 15 of this year, Feinstein reports, Brennan asked her for an emergency meeting and disclosed that agency personnel had carried out a “search”–his word–of the SSCI’s investigative computers. Two days later the SSCI sent Brennan a letter protesting the intrusion and citing constitutional separation of powers as precluding CIA actions of this sort. On January 23 Feinstein sent Brennan a further letter asking a dozen specific questions about the CIA intrusion, including a demand the agency reveal the full scope of its hacking. In Feinstein’s account, “the CIA has not provided answers to any of my questions.”

All of this, as related here previously (see my posts of March 6 and March 7) concerned the already-notorious “Panetta Review.” In her Senate speech Feinstein now provides details on just what went down. The story goes back three CIA directors–to when General Michael Hayden led the agency. Hayden explained away the CIA’s destruction of the torture tapes by saying that they were not destruction of evidence, they were meaningless because everything that had been done to CIA prisoners was recorded in cable traffic, which he offered to show the SSCI. Senate staffers spent many months going through these cables and came back with a chilling report– what had been done to prisoners was “far different and more harsh” than CIA had represented to Congress. It was at that point, in March 2009, when the SSCI initiated its CIA torture investigation. Then-agency director Leon Panetta held out for the alternative of SSCI using agency offices for its research. Feinstein accepted that arrangement.

In May 2010 SSCI investigators discovered that documents previously available on their computers had disappeared. This involved 870 pages or full documents in February 2010 plus another 50 that May. When asked, CIA liaison personnel first denied anything had been removed, then attributed this to agency IT people, then said the White House had ordered the action. The Obama White House denies issuing any such order.

After that the SSCI investigators found the Panetta review. The Senate committee deliberately decided to bring that document back to SSCI’s premises because of the precedent of CIA’s earlier destruction of the tapes, the fact that the review differed so substantially from agency claims that the document’s continued existence was endangered, and the fact that CIA had earlier infiltrated the SSCI computers and removed materials from them.

In late 2013 the Senate committee officially asked CIA to provide the Panetta review. Director Brennan has refused to do so, and on bogus grounds I shall not go into here. Equally ominous, CIA’s general counsel filed a crimes report with the Justice Department against the Senate staff. (This goes beyond the action of the Inspector General in simply referring the case to Justice.) That CIA lawyer was working with the agency’s Counterterrorism Center when the agency destroyed the torture videotapes in December 2005.

It should not be necessary to say this, and even less to do so again–the CIA is out of control. The cover-up is ongoing. It now threatens proper constitutional control over intelligence activities.

The Fire Behind CIA’s Smoke

March 8, 2013– The Central Intelligence Agency’s defense to charges that it has been spying on Congress is that it was simply investigating mishandling of classified information, a legitimate function. In this rendering all the documents the Senate Select Committee on Intelligence (SSCI) was studying for its review of the CIA torture and black prisons programs were supposed to stay within the room the agency had set aside for the SSCI researchers. Instead, the story goes, an SSCI staffer printed up a copy of one particular document and took it with him to the intelligence committee’s offices on Capitol Hill. The case of the purloined document, we are told, has now been sent to the FBI for further inquiry.

I’d have more sympathy for the agency’s point of view if the context were different. What is problematic here is that the charge against SSCI represents a counterattack by an agency embattled, essentially a political move. If this were football, it would be a goal line defense. More disturbing, this CIA action was not taken in isolation, it forms part of a pattern that stretches back to 2005.

First, consider the specifics of the purloined document. It has now been widely reported that this was a copy of the “Panetta Review.” Leon Panetta was President Obama’s first CIA director and ordered up an internal study of the effectiveness of the agency interrogation program. Panetta wanted to get a feel for the contents of the range of documents the CIA was agreeing to let the Senate access. The review consisted of several different papers and reportedly concluded the project had yielded little of value.

Three things are significant here. First, this was not some low level analyst expressing a personal view, it was a major postmortem done in response to the director’s instructions. Second, because it was a major report it was compiled on the basis of all agency records, thus it represented a considered point of view. Third, the reported conclusions of the Panetta review are markedly at odds with the CIA’s representations to the Senate investigators, who were told the interrogation programs had been very successful–a position the CIA continued to maintain in its response to the completed SSCI investigative report. All of this without informing the Senate committee, its legal overseers, that the Panetta report even existed. —And, it should be added, without the CIA taking the Panetta Report’s conclusions into account in its response to the Senate committee investigations.

(To be facetious for just a moment, what you have is the CIA pretending the Panetta Review did not exist, and later demanding criminal indictment for someone who showed it did. Either the report did not exist, so there is no issue about revelation; or the report did exist, and the CIA is at fault for not bringing it to the attention of investigators.)

You can imagine the consternation an SSCI staffer felt when he encountered the Panetta Review among CIA records. It is understandable that a Senate staffer would think this a crucial discovery and decide the members of the intelligence committee needed to see the full text immediately.

According to McClatchy News, the agency now says a Senate researcher acquired this document early in the SSCI inquiry, and did so by breaching a firewall between the material to which the investigators had access and the larger body of agency records.

The CIA’s latest squirm on the hook is that since the Panetta Review was conducted in 2009 it fell outside the purview of the agency’s agreement with the Senate committee, which was to cover material only up to the point when the black prisons were abolished, which had occurred in 2006. This represents the same kind of literalism and myopia with which Langley deals with outsiders–a review compiled in order to get a sense of the documentary terrain the SSCI was being access to is denied because it was created later. An argument can still be made that the Panetta Review was derivative of the covered documents and therefore should have been available to investigators.

That does not excuse an SSCI violation of rules on the handling of classified material, but it remains an unknown here what precise arrangements the SSCI and CIA had agreed to, and in this case those rules needed to be weighed against the national interest. Moreover, within the CIA a violation of document handling regulations is viewed as an administrative matter, where here it has been referred to the FBI for criminal investigation.

How did the CIA know of the purloined document? An answer to that question is necessary. Until senators began asking questions about the discrepancies between the agency’s official response to the SSCI report and CIA’s internal postmortem on the torture, the only way to have known would have been by tracking the keystrokes, file openings, and downloads on the computers used by SSCI researchers. Here we get to the charge that the CIA was spying on the Congress. The best case from CIA’s side would be that it found out only when SSCI members raised the discrepancy issue, and that it then conducted a standard security review, uncovering the breach. But this data is only recoverable if it was being collected in real time, when the SSCI researchers were on CIA premises. So either way the agency was spying on its overseers.

The latest development here is precisely along this line: a CIA claim that it became aware of the leak when Senator Mark Udall (D-CO) brought up the discrepancies in December 2013, and then wrote President Obama in early January of this year asking that the Panetta Review be officially released. The CIA then searched its computer “audit log” and discovered the breach. This plays both ways–it confirms the CIA was collecting data on the Senate investigators in real time.

One troubling point that remains concerns dating–the claim that SSCI discovered the Panetta Review early in its investigation, the handover of the CIA response to the Senate report in June 2013, then the delay until December 17, when Senator Udall first mentioned the discrepancy between the CIA response and the Panetta Review. During that interval agency officials and SSCI representatives had met for more than sixty hours specifically to talk over their differences arising from the CIA response and the SSCI report. If the Senate intelligence committee had really had the Panetta Review from an early date, surely the matter of CIA internal discrepancies would have come up then. This casts doubt on the CIA claim as to timing.

The CIA Inspector General, David Buckley, has referred the computer monitoring to the Justice Department for its decision on whether to open a criminal investigation.

Now let’s change the lens and look at the Big Picture. The CIA’s attack on Congress today mirrors its unprecedented action in 2007, when it conducted a security investigation against its own Inspector General. Then as now the allegation was leaks, i.e., mishandling classified information, but the context was the release under the Freedom of Information Act of an expurgated version of the IG’s internal inquiry into the CIA torture, which gave the public its first authoritative knowledge of the program. Before that, in 2005, when the CIA project first leaked, agency officials conspired to destroy evidence–the now-notorious videotapes that documented CIA torture. I have made some ascerbic remarks regarding the memoirs by CIA lawyer John A. Rizzo (see “Tone-Deaf CIA Lawyer,” March 1, 2014), but one thing his memoir makes crystal clear was that the tapes were destroyed in the face of clear orders to the contrary. The second Bush administration’s Justice Department dealt with CIA torture with a very light hand, choosing to prosecute only two tangential cases where death had resulted. But the pattern of CIA actions raises the question of how responsive the agency actually was, in supplying evidence both for those cases and for the Justice Department’s investigation of the torture tapes’ destruction.

Meanwhile we still have the fact that the CIA has been sitting on–and is still dragging its feet–not only on release of the SSCI report on CIA torture but on its own response. It is now fifteen months since the senate study was sent to the agency. –And senators on the intelligence committee have been saying that the CIA response itself makes claims regarding the SSCI study that are simply false. The former CIA general counsel, Stephen Preston, who had told senators that the agency’s response to the SSCI study had been “appropriate,” later took pains to distance himself from it. “I did not personally participate in the [CIA] team’s formulation of substantive comments,” he told the Senate Armed Services Committee, “nor did I independently review the factual basis for their findings and conclusions.”

It is difficult to avoid the conclusion that a CIA cover-up is in progress. There is real fire behind this smoke. As I wrote in The Family Jewels these kinds of abuses follow a pattern–and the Central Intelligence Agency is replicating that pattern right now.

(This article was posted originally on March 7, it has been updated to reflect developments of that day.)