Obstruction Starts to Come Into Focus

June 15, 2017–Just very quickly, because I am on something else. You are beginning to see the reasons why President Trump had an interest in having his officials stonewall at their congressional appearances. For Coats or Rogers to have confirmed that the president even mentioned to them the possibility of speaking out in behalf of Michael Flynn or, worse, pressing FBI Director Comey to drop the Flynn inquiry, would be disastrous for Mr. Trump. Our information is that the special counsel opened a wider inquiry on Donald Trump, to include obstruction of justice, shortly after the president fired Comey on May 9. Federal rules require the FBI to inform a person when they become the subject of an inquiry. Thus Mr. Trump was aware of that investigation from about mid-May. His officials, including the lap dog Jeff Sessions, testified at the Senate intelligence committee in June.

Mr. Trump could not openly claim executive privilege for his officials. There is legal precedent for criminal inquiry trumping (!!) privilege. The court hearing would merely worsen the president’s position–and his claim could itself be construed as a further act of obstruction. Mr. Trump could not claim secrecy–you saw in this space yesterday a citation to the statute that prohibits that. In addition there are prima facie grounds to argue that a personnel change is not secret. Trump’s minions were thus forced to contrive some excuse to justify their refusal to testify. An extremely awkward formula (of pretending to reserve the president’s ability to claim privilege later) was the result.

I continue to believe the Senate’s proper response, at the second (or was it the third? the first two occurred during the same hearing) instance of this maneuver, would have been to hold the witness in contempt.

Jeff Sessions’ Looking Glass–or is it America’s?

June 14, 2017–Yesterday the nation was treated to another deplorable performance by someone who is supposed to be an American leader. In fact, as attorney general, Jeff Sessions is supposed to exhibit sterling qualities, to be the president’s sidekick in the promised draining of the swamp. Instead we saw a small man, diminished further by his squirming, jumping, running away from questions. Mr. Sessions’ responses to the questions he did answer were denials that ranged from flimsy to vague. His invocation of an alleged Justice Department policy regarding non-executive privilege refusal to respond I will comment upon in a moment. Mr. Sessions was again under oath in this meeting with the Senate intelligence committee. I submit to you the odds are better than even that before this affair ends, Sessions will be revealed to have perjured himself again in that testimony. Far from draining the swamp, Mr. Sessions is dredging it deeper.

As for the alleged Justice Department “policy,” former DOJ employees were on the news shows last night saying they never heard of it. Sessions himself, after invoking this “policy,” could not say whether it was written or something in lore, could not say if he had read it (???!?!!–which means he either has no such policy or he has such short term memory problems that his ability to serve as attorney general is in question), and could not quote it as his authority. Today’s New York Times reaches back to the Iran-Contra scandal to find an instance where cabinet officials refused to answer a question in a similar fashion. That’s a poor precedent because in Iran-Contra there was an actual constitutional transgression from which to shield the president.

Here’s what we do know: that two senior intelligence community characters, director of national intelligence Dan Coats, and National Security Agency director Mike Rogers, adopted the identical approach of refusing to answer questions on the phony grounds that the president, in the future, might assert privilege over those subjects (but had not in fact done so at the moment testimony was given). It is far more likely that Sessions’ calculation was “if Coats and Rogers could get away with this, so can I.”

Jeff Sessions squirmed through his testimony, alternately lashing out (dastardly “secret innuendo” circulated about him) or pretending to ignorance (being forced to confront vague charges glimpsed through a “looking glass”). But Mr. Sessions knows very well the story Congress is trying to find out, and he must know that his actions as attorney general have created real questions as to propriety. His plaintive cry–aimed at Jim Comey–to “tell me what” the material act was that would have obliged his recusal from inquiries into the Russian Caper–followed by his strident claim that “of a certainty” there was no such thing–will ultimately escape perjury charges only because supporters will argue they were expressions of opinion rather than assertions of fact. In the meantime the question is, will Sessions get away with his behavior.

So far he has. All through the Sessions testimony I sat waiting for the senator who would stop and say, “Mr. Chairman, point of order, this witness is acting in contempt of the Senate.” The intelligence committee, in seeking information of direct relevance to its investigative purpose, is the body following a longstanding (and written) policy. The power of Congress to investigate was set in law more than a century ago. In connection with the specific refusals by Coats and Rogers, the National Security Act of 1947 explicitly provides, “Nothing in this Act shall be construed as authority to withhold information from the intelligence committees on the grounds that providing information to the committees would constitute the unauthorized disclosure of classified information” (50 U.S.C. 413, sec. 501 (e)).

Trump administration officials are here attempting to carve out a wholly new rationale with which to deny information to Congress and the public. Democracy begins to die when executive powers believe they can act with impunity, and outside checks and balances. Sessions should have been held in contempt, not just because he was withholding information from a duly authorized congressional investigative body, but because he was participating in the construction of a wall to insulate the executive branch from proper oversight. The Senate intelligence committee demonstrated its powerlessness by failing to enforce its right to investigate. Chairman Richard Burr and the Republican members of the committee, by putting partisanship ahead of the authority of the Senate, are establishing their irrelevance. The Democratic members, by failing to pose the point of order, are acquiescing in that act. Democracy in America took a hit yesterday.

Trump’s “Satellites”

June 10, 2017–So, like Nixon at Watergate, The Donald does not mind jettisoning minions to avoid the hammer of justice descending upon his own head. There has already been a good deal of attention devoted to a set of individuals directly involved in the Russia Caper, but what about those people who work for President Trump within his own administration? Who might those “satellites” be?

Jeff Sessions: Let’s start with the Attorney General, both because of his prime position but also because former FBI director James B. Comey hinted during his June 9 testimony before the Senate intelligence committee that the Bureau was aware considerably in advance of things in his record that would oblige Sessions to recuse himself from investigations related to the Russia Caper. Apart from his potential vulnerability to Russia Caper charges, Sessions is open to perjury charges for sworn testimony before Congress. If Sessions did have vulnerabilities that required him to recuse himself, then his participation in the firing of James Comey opens him up to charges of conspiracy plus aiding and abetting illegal activity.

Sean Spicer: The president’s press spokesman of course has stood before the public day after day, effectively spouting lies. Some of those lies may have abetted the illegal activity. Also the degree to which he was witting of the rest, and the political advice he gave, may expose Spicer to conspiracy charges.

Political advice, public posturing, and leaking may expose Steve Bannon and Reince Priebus to charges of conspiracy and of leaking classified information.

Dan Coats, Mike Rogers, and Mike Pompeo, respectively the Director of National Intelligence, and heads of the NSA and CIA, have stonewalled Congress, opening them to contempt charges, since the National Security Act of 1947, as amended, explicitly provides that no order, charge, or other instruction may be cited to justify denying Congress any information necessary for its oversight role. Their stonewalling posture also aids and abets the cover up. President Trump also made an affirmative attempt to recruit Coats and Rogers to pressure the FBI to drop its investigation of Mike Flynn. If these officials either did as asked, or indicated to President Trump that they would do so, they would become active participants in an obstruction of justice. Depending on the advice they gave the president, the spooks may also be open to conspiracy charges.

H. R. McMaster : Here we’ve taken to calling the general “Appropriate Dereliction” McMaster for his excuses made for the Trump campaigners who asked the Russians for a backchannel on Russian communications links, an element of the Russian Caper conspiracy (which I am treating separately). Though that action represents a separate transgression, McMaster’s defense of it as completely “appropriate” is part of the cover up. If Donald Trump ordered McMaster to mount that defense, it would be an unlawful order and, as an active-duty Army officer General McMaster would be liable for carrying out an illegal order (Universal Code of Military Justice, 908– 890 (Art.90[20]); 891 (Art. 91 [2]); 892, Art. [1], [2]). If McMaster did this voluntarily and the conspiratorial act is found to have been criminal, then he is open to charges of aiding and abetting.

Obama’s Train Wreck

August 8, 2014–We’re in the soup now! Barack Obama has been notoriously shy with White House television cameras. If you pay attention to these things you’ll have noticed that Obama shuns newsmaking appearances at the White House, preferring to show himself only on social occasions. So when the president suddenly interrupted prime time television for a personal appearance last night, you have to agree it’s important. And it was: the United States is going back into Iraq. After exiting from that costly and stupid war–a withdrawal on which Obama campaigned for the presidency–he is heading back in because the Islamic Caliphate (also called ISIS) threatens the residual Iraqi government.

What a mess. Fighting the Caliphate, which controls portions of both Iraq and Syria; and which, in Syria, is part of the effort to overthrow Bashar al-Assad, may be a humanitarian response but it puts the United States in an impossible position. In Syria, after all, the U.S. is with the rebels pushing to oust Assad too. So the U.S. is allied with ISIS in Syria and fighting it in Iraq? This is worse that “the enemy of your enemy is your friend.” This puts the U.S. on both sides of the Syrian civil war while pretending to have nothing to do with it. And in Iraq we are on the verge of full scale intervention in a senseless conflict.

Sad to say this kind of muddle is becoming characteristic of Obama policies. The healthcare rollout disaster is a domestic example. Time and again Mr. Obama makes a good analysis of the problem but is then incapable of sticking to his guns. President Obama is also tragically inconsistent. Consider the other major development yesterday–Obama’s signature of a law trying to make corrections in another mess we have, that of care at Veterans Administration hospitals. Compare that to . . . wait for it! . . . his treatment of intelligence matters. Here are some quotes from what Mr. Obama said on August 7 at Fort Belvoir, Virginia:

“Over the last few months, we’ve discovered some inexcusable misconduct. . . . It was outrageous.” He said that about VA hospitals. But what about the CIA? Its infiltration of computer systems belonging to Congress was excusable? No it wasn’t. What about intelligence boss Fearful Clapper deliberately lying to Congress when asked a direct question on dragnet surveillance of Americans? Excusable? No. What about the NSA surveillance itself? Mr. Obama seems to think that’s OK. Many would disagree.

At Fort Belvoir about the VA: “We’re instituting a critical culture of accountability.” Where is the equivalent action taken in regard to the spies?

On the VA scandal: “If you engage in an unethical practice, if you cover up a serious problem, you should be fired. Period. It shouldn’t be that difficult.” The CIA not only engaged in an “unethical practice,” it tried to evade accountability by accusing Congress of criminality. Repeated lying by the ODNI and the directors of NSA and CIA have not only not been met by accountability, the president has invited these people to White House dinners.

“And if you blow the whistle on an unethical practice, or bring a problem to the attention of higher-ups, you should be thanked. You should be protected for doing the right thing. You shouldn’t be ignored, and you certainly shouldn’t be punished.” Edward Snowden has not only not been thanked, President Obama failed to speak up when characters like Representative Mike Rogers or former NSA/CIA director Michael Hayden talked about wanting him dead. And there has been plentiful mention of punishing the whistleblower at all levels in the Obama administration. Indeed, the criminal indictment the CIA couldn’t get away with, in its attempt to chill Congress, has already been opened for Snowden.

President Obama has good instincts but he can’t seem to apply them consistently. Accountability is good for the Veterans Administration but it does not apply to the intelligence community. Non-intervention is good in Syria but does not apply in Iraq, even if it leaves the United States mired on both sides of the conflict. Whistleblowers should be protected, except where they should get life in prison.

A recent poll that sought opinions on the performance of recent American presidents found Mr. Obama in last place. Even behind Richard Nixon if you can imagine that. If you want an explanation, here’s mine: President Obama’s expressed intentions have fallen so far short of his actions that citizens no longer feel they can believe in him.

Intelligence Scandals: The Politics of Oversight

March 29, 2014–Today’s news is that Mike Rogers, the Michigan Republican who currently serves as the chairman of the House oversight committee, is going to retire to become a radio talk show host. Rogers cites his frustrations at accomplishing anything in Congress, and believes he can contribute more as a media pundit. Interesting. On a number of levels.

Just to recapitulate: Mike Rogers has driven the House Permanent Select Committee on Intelligence (HPSCI) exactly where he wants it to go. And where he has gone is into the pocket of the intelligence mavens. Rogers, an FBI special agent before he became a congressman, seems never to have met an intelligence project he did not like. Whether it was CIA drones, NSA dragnet eavesdropping, or whatever, Mike Rogers was for it all. He acquiesced in the intelligence community’s purposeful evasion of oversight, its hookwinking of Congress right down to refusal to discuss even the legal basis for drone strikes that target American citizens. Instead he needled intelligence officials to increase their use of drones. At the height of the Snowden revelations Rogers appeared on TV with former NSA/CIA spy chief Michael Hayden to gush about how he would like to throttle the whistleblower. Where, over in the Senate, Dianne Feinstein has finally rebelled under the weight of the spies’ excesses (see “Senator Feinstein Comes out of the Closet,” March 11, 2014), at HPSCI Mike Rogers made sure his committee made no investigation at all of the CIA’s hostile interrogation techniques.

Moreover Rogers has operated in a permissive environment. With an ironclad majority in the House, HPSCI-sponsored legislation was assured of passage. Only a less-permissive Senate stood in the way of Rogers’s pet projects becoming law. Until Snowden that is. In the Republican-dominated House last summer, congressmen outraged at the NSA dragnet came within a handful of votes of defunding the National Security Agency. James Sensenbrenner, the man who wrote the provision the NSA has used to justify its dragnet, has disavowed his legislation and wants to repeal it.

Now Mike Rogers is frustrated because he can’t accomplish anything. Kind of like the kid at the schoolyard who, failing to win his dispute over interference with the last shot, picks up his marbles and heads home.

This would be amusing except that it is calculated. As it happens, the provision Jim Sensenbrenner authored, whether or not it is repealed, is scheduled to expire next year unless it is renewed. A whole lot of politics is going to revolve around that fight. Senate passage will be dicey. The House is no longer a done deal. The high tech corporations, stung by the effect of the NSA dragnet on their bottom lines and international sales, are quite likely to lobby against the program with which they have been working for years. Public pressure will be important. My guess is that Mike Rogers calculates he can help mobilize the public to demand the extension of the intrusive eavesdropping. Mike Rogers can “save” the NSA dragnet. Now that would be an accomplishment!

 

U.S. Intelligence Turned Inside Out

 

February 5, 2014– Is all this really happening? Maybe I should pinch my arm and try to wake up. But it’s not a dream–it’s a nightmare. United States foreign intelligence turning on Americans. This NSA eavesdropping scandal has created such distortions that, at some point, you begin to wonder whether the entire system is compromised. Government responses to the scandal have gone so over the top that one suspects the foundations of the intelligence community may be cracking.

Let’s begin with the fundamental mission. As officials have reiterated ad infinitum since the Snowden revelations began, the purpose of U.S. intelligence is to discover and track foreign enemies. All the powers the NSA, CIA, and other agencies exercise are supposed to be aimed at that goal. The agencies operate in secrecy, on the dark side. But there moments when, for a brief time, they come into focus. The most important of these is the annual “threat assessment” hearings. Every year around this time the Director of National Intelligence (DNI) and the agency chiefs appear before the congressional intelligence committees to give the public a glimpse of their world view. The spy chiefs talk to the legislators but at the same time speak to the American people. The Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI) are fora in which our agency bosses expounded on the Soviet threat, in the day; efforts to develop ballistic missiles around the world, nuclear proliferation, including the misguided and mistaken claims for Iraqi weapons of mass destruction; drug cartels and international crime syndicates, whatever the issues that have their hair on fire. Since 9/11 our intelligence chiefs have consistently represented the top threat as terrorism. Only last year did it drop to second place, with the threat of cyberwar given the pride of place. Now, suddenly, the NSA eavesdropping scandal has changed that.

Last week the DNI, General James R. Clapper, and his assembled brass, presented their annual threat assessment to the Senate committee. They did the same at the HPSCI yesterday. The two appearances cast a pall on the American intelligence enterprise. Our so-called experts now believe the leading threat is not foreign at all.

General Clapper told the Senate intelligence committee that a leading threat to the United States comes from whistleblowers. (Cue Edward Snowden.) Let’s parse that for a moment: Whistleblowers are employees of U.S. intelligence who become so concerned about the U.S. intelligence programs they see around them that they decide to destroy their careers by leaking to the public the abuses which exercise them. How to cope with that threat? You clamp down on U.S. intelligence. The snake eats its own tail. This is more than a security measure. The NSA, CIA and other agencies depend on smart analysts and operators, willing to go out on a limb to make sense of the welter of obscure and often contradictory information out there, and argue theses which bosses might think fanciful. Nothing could be better calculated to destroy the morale of the intelligence community than to represent its own officers, individually and collectively, as the main enemy.

I’ve written here repeatedly, as have others, on the chilling effect of eavesdropping on the public. Consider how chilling it must be for intelligence officers to be told they are a threat too.

There it is. Just to keep the ball in view, Clapper’s biggest threat this year remains cyberwar. But terrorism–the stated rationale for all that intrusive NSA eavesdropping–has fallen to fourth. Whistleblowers are a bigger threat to American security than terrorists. Of course, the reason whistleblowers pose a threat is the impact their disclosures may have on the powers of the intelligence community. Director Clapper and his minions are substituting the private, parochial interests of their agencies for the national security of the United States.

On the theme of flimsy congressional oversight, featured here several times, we can add that Senator Dianne Feinstein sat still for all this in her Senate committee. At HPSCI yesterday, Representative Mike Rogers did Feinstein one better. Clapper hardly needed to advance his dubious threat analysis. Rogers reached past him, trying to lead FBI director James B. Comey into an assertion that journalists who report the abuses revealed by whistleblowers are “fencing” stolen goods. What congressional oversight is even possible in this climate?

Rogers has, without evidence, accused Snowden repeatedly of being a Russian or Chinese spy, and last fall at a media gabfest with former spook Michael V. Hayden the two bantered about their desire to throttle the leaker. Edward Snowden got the message. Recently he told a German interviewer, in all seriousness, that he could not return to the United States because people want to kill him.

All this gives new meaning to aphorisms–always presented as an error–about shooting the messenger. Do not lose sight of the fact–and it is a fact–that the problem resides in the substance of U.S. intelligence programs, not in what Edward Snowden or anyone else says about them. That intrusive eavesdropping is revealed in the NSA’s own documents. Not only can the evidence not be disputed, it has been further confirmed in the additional documentation the U.S. government has declassified in the course of this controversy.

We Miss His Integrity Already

January 22, 2014– It was sad to wake up yesterday to the news of the passing of former New York democratic congressman Otis G. Pike. During the fierce debates of 1975, known as the “Year of Intelligence” because the controversies of the day led to the first significant investigations of the actions of U.S. intelligence agencies, Representative Pike held to a steady course in the face of a concerted effort by the Ford administration–and the CIA, NSA, and FBI of that day–to head off any public inquiry. Like the current controversy ignited by leaks from NSA contract employee Edward Snowden, the Year of Intelligence began with revelations of U.S. intelligence spying on American citizens (see my book The Family Jewels). In contrast to the deferential chiefs of the congressional intelligence committees today–Senator Dianne Feinstein and Representative Mike Rogers–Congressman Pike was in nobody’s pocket and he persevered to the end.

The House of Representatives intelligence investigation of 1975 began under another congressman, Lucien N. Nedzi, who left under fire when it came out that he had collaborated with the CIA–much as current committee chairpersons have with the NSA–in concealing the record of agency abuses embodied in a document that CIA wags of the day had dubbed the “Family Jewels.” The House selected Representative Pike to lead a fresh inquiry. Pike had to start over from square one.

The Pike committee investigation is far less known than the one the Senate conducted under Frank Church. In part that is because his report was suppressed–President Ford lobbied Congress hard to avoid its disclosure, including sending a letter to House members and personally telephoning key figures to nail down votes against releasing the document. But Pike also faced major obstacles. Where the CIA, however reluctantly, permitted Church committee investigators to view some of its materials–ones the Ford White House vetted–its approach with the Pike committee was different. Representative Pike refused to accept the procedures the White House and CIA had designed to limit access for the investigators. The agency countered by refusing to supply Pike with any materials at all, on the excuse his committee could not protect classified information. There was more. Secretary of State Henry Kissinger refused to appear when called to testify, and resisted a subpoena once the House voted that. Some accommodations were made, but executive-legislative cooperation in the case of the Pike investigation would be minimal. And then President Ford intervened to suppress the Pike report. Portions of it promptly leaked. Although the public has never seen the complete report, it is clear from the leaked material that Congressman Pike, despite having half the time the Church committee enjoyed (insufficient in their case too, by the way), and in the face of executive branch obstruction of its inquiry, succeeded in getting to the bottom of several key intelligence questions. Otis Pike’s leadership–and his integrity in resisting White House and CIA maneuvers to affect information–were keys to this achievement.

Congress today would benefit from integrity like Otis Pike’s. The present  intelligence committees seem intent on avoiding issues, not engaging them. Not only is this apparent in their diffident approach to the NSA scandal, it is visible in the Senate committee’s failure to call out the CIA on its effort to stonewall the deep inquiry which the committee majority spent several years assembling on the CIA rendition and torture programs. Otis Pike (1921-2014) would not have let the spooks get away with such shenanigans.