Hot Document Notice: Circusmaster Cheney and the Church Committee

June 21, 2014–Now posted for your delectation are a few documents where Dick Cheney, at that time a senior official in President Gerald R. Ford’s White House, sought to restrict the scope and contents for congressional investigations of U.S. intelligence in 1975. I mentioned these documents a couple of days ago (“Dick Cheney: Circusmaster or Clown?” June 19). The set includes Cheney’s handwritten notes for “next steps” at the White House to respond to the investigation of a Senate select committee led by Idaho democrat Frank Church, the senator’s actual request of the White House for CIA information–with Mr. Cheney’s annotations on what should not be handed over–and an excerpt from a later White House memo in which officials report a press conference where Senator Church notes that the indicated material had not, in fact, been handed over. These Hot Documents are in “Products” on the “Downloadable” section of the website.

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.

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 Bamboozles Congress–Again

March 5, 2014– You read it here first! I’ve commented repeatedly in this space on the enormous gaps in, and frailty of, congressional “oversight” of U.S. intelligence. The point has been made repeatedly in my coverage of the National Security Agency scandal but it also appears in pieces I’ve posted about the CIA. Now we’re back in the soup again. The McClatchy News Service first reported, and today’s New York Times confirms, that the CIA, far from acquiescing in the legal right of Congress to oversee the agency, has been spying on Congress.

A month ago a fairly extensive analysis appeared here (“Should We Depend on Intelligence Oversight,” February 1, 2014) on the byplay between the agency and the Senate Select Committee on Intelligence regarding the committee’s investigation of the CIA torture program and its black sites. That column discussed how the agency was sitting on the Senate report, refusing to send it back for public release, because CIA careers and rice bowls are on the line. The new Times report indicates the spooks went further than that–CIA officials hacked the computers which it, itself, insisted that Senate committee staffers use in examining the documents it provided to investigators. This attempt to find out how the Senate discovered internal CIA documents which contradict the agency’s official position (that the conclusions of the Senate inquiry are wrong) is a violation of criminal law.

Sources have confirmed that the agency’s Inspector General has conducted an investigation into this spying. The latest information is that the IG has referred suspects in the case to the Justice Department.

All of which is the very antithesis of the principle of oversight. Here we have the watchers spying on those whose charge is to monitor them. This new excess joins an already lengthy list of irregularities that I documented in my book The Family Jewels . “Chilling” barely covers the implications here.

On March 4 Senator Mark Udall (D-CO) wrote a letter to President Obama regarding the torture report’s release, alluding to the impropriety, and requesting that CIA be stripped of the authority to rule on declassification of the document. This is a follow-up to a letter back in January to which Obama never replied.

So guess what? We’ve been here before. The whole notion that an executive branch agency has the authority to regulate what information can be released by Congress is a product of the “Year of Intelligence,” the time of The Family Jewels. More specifically that custom arose from the dealings between the CIA, President Gerald Ford, and the House Select Committee on Intelligence chaired by New York Representative Otis G. Pike, who recently passed away (see “We Miss His Integrity Already,” January 22, 2014). It is a fiction.

So all can understand just what happened here let me relate that story. Pike’s committee had a broader writ than the Senate torture investigation. It was empowered to look into every aspect of U.S. intelligence. The CIA loathed the whole thing. On the other side of Capitol Hill a similar committee under Idaho Senator Frank Church was doing the same thing. Just as with the recent torture investigation the CIA laid down ground rules for what the inquisitors could see. It even drafted the texts of secrecy agreements congressional staff were supposed to sign before being granted access. Their actions were closely monitored by the White House. President Ford designated his counselor, John O. Marsh, to ride herd over the whole thing, backed by none other than Dick Cheney, then the deputy assistant to the president (his boss at the time was Donald Rumsfeld).

At Langley, CIA headquarters, there was early confidence that the agency could keep the lid on the investigations. But these gradually developed their own leads (the Church inquiry into assassinations, for example) and went in directions the agency feared. At a hearing on September 10, 1975, the Pike committee let out four words of a National Security Agency cable that was top secret. The Ford administration seized the opportunity to demand that the committee return all classified documents in its possession and refused to provide any further information. It did not matter that Henry Kissinger, then secretary of state, had given the same information to reporters already.

This maneuver led to a major crisis between the Congress and President Ford. Then, as now, the administration had its spies on Capitol Hill, in this case the Republican members of Pike’s committee. But the White House was aghast to discover that even their congressional allies agreed that the committee had the right to any information it required to fulfill its duty. At the White House Jack Marsh crafted an “action plan for the defense of the agency.” As a CIA lawyer observed on September 22, “The Action Plan is much broader than simply the confrontation . . . . It deals with the future in terms of Executive and congressional oversight.” The Pike committee insisted upon its prerogative to release any information it considered necessary. It began considering Contempt of Congress citations for officials. It subpoenaed documents.

Ford sought legal advice, in house, from the Department of Justice, and CIA did its own analysis. White House lawyers did not give him much comfort. In a September 23 memorandum the president was told that Congress might not have the power to declassify information, “but it has the power to publish the document in its possession.” The Attorney General advised that the president could withhold information–and Henry Kissinger demanded it–but as a political matter that represented the highest risk option.

The same day Pike Committee lawyers told their principals, “the CIA is a creature of Congress, created by statute of Congress . . . . In other words, notwithstanding that the agency is a member of the Executive Branch it is created by Congress. If the subpoena is defied it raises the spectre of Frankenstein. That is, an agency created by Congress, funded by Congress is set loose in the world without any ability of its creator to control its acts, let alone examine them.” Pike stood his ground.

A sort of negotiation ensued. Some of the subpoenas were flawed, being addressed improperly (to the National Security Council for State Department information, for example), but the Pike committee was properly constituted, had the power to do this, and could legitimately regard any less than full response as failure to comply. Finally the sides cobbled together an arrangement under which the CIA would “lend” its documents, and before releasing anything to the public, the Pike committee would “consult” with the president on whether there was any national security objection to their release. President Ford adopted the device of asserting executive privilege each time one of these issues came up.

There is much more. The crisis went on into January 1976. Pike sought a contempt citation against Kissinger. Ford suppressed the Pike Report itself. Significantly, the legal advice then was that the president might succeed with a national security claim but that this dispute between Executive and Congress might very well be held a “political question” by the courts, so Ford’s chances were no better than 50-50. The president instead took the course of lobbying the House to vote against releasing Pike’s report, and in that he succeeded.

It is significant that in the draft recommendations which Otis Pike sent to his committee members on December 19, 1975, he included the provision that “Each such committee [dealing in national security] should be authorized to recommend that specific classified facts and documents be made public . . . after . . . giving careful consideration to the judgment of the executive branch,” with the final determination to be made by senior House leaders. This did not survive into the final set of recommendations, which instead provided that “classification of information be the subject of the enactment of specific legislation.” Forty years later, Americans still lack that protection against malfeasance and abuse.

(Note: I shall tomorrow post the Pike draft recommendations as a Hot Document on this site.)

Bottom line? President Ford relied upon the power of executive privilege to keep the documents secret, not on national security per se. The Pike Report was spiked as a political act, not a matter of security classification. The Church Committee did, in fact, release its Assassinations Report over Ford’s objections. And Section 4 of Senate Resolution 400, passed in 1976 to create the Senate Intelligence Committee, explicitly provides for the committee to declassify information, under a procedure similar to what appears in Pike’s draft recommendation.

The latitude Congress has given the Executive Branch in the release of national security information is a courtesy, not a matter of law. There is apparently some inkling of this within the Obama administration right now. The journalist Jason Leopold filed suit against the Department of Justice last September to compel the declassification of the 300-page executive summary of the Senate torture report. This past January the Department moved for a summary dismissal of the suit on the grounds that the Senate report is a “congressional record” and not an agency document.

The Central Intelligence Agency no longer deserves to be accorded courtesy in the matter of the Senate intelligence committee’s torture report. The Senate should simply release its investigative study. Forthwith.