More on Contempt of Congress

June 16, 2017–Today’s New York Times responds directly to the posts here yesterday and two days ago (“Obstruction Starts to Come into Focus,” June 15; “Jeff Sessions’ Looking Glass,” June 14) about contempt of Congress. Correspondent Charlie Savage enlightens us on the details (his article is titled “On Executive Privilege and Sessions’ Refusal to Answer Questions”). Justice Department officials dragged up two pieces of paper to show an explicit claim to–let’s call it “potential-presumptive executive privilege,” where the president had asserted no such claim but the individual resisting answering an inquiry uses it as authority to refuse an answer.

Both these documents date from 1982. Only one was presidential–President Ronald Reagan signed a directive in November 1982 governing response procedures for “this administration.” On the face of it Reagan’s assertion had no power on any other president. Moreover, the “policy” was swept away in the Iran-Contra Affair.

The second document was a paper from Justice’s Office of Legal Counsel (OLC), an August 1982 memo titled “Confidentiality of the Attorney General’s Communications in Counseling the President.” The OLC paper carved out a legal argument for presumptive privilege, but, Charlie Savage reports, it never addressed to the specifics of refusing to answer questions when under oath. OLC is also the entity that produced the notorious “torture memos” of the George W. Bush administration. There are two points to make here. First, here is a fresh example of why OLC papers are way overvalued when people attribute the power of court opinions to them. Second, the Reagan-era OLC opinion had no weight after January 1989. Other administrations needed to have joined with Reagan to make this a “longstanding policy.” Bottom Line: there is no such authority.

The Times also refers to an event of the Obama presidency as another exercise of the “potential privilege” power. This came during the Senate intelligence committee’s investigation of the CIA torture program, when agency officers hacked Senate committee computers and removed 10,000 pages of documents from them which the CIA had previously furnished to the Senate. (You will be able to read much more about this episode in my forthcoming book The Ghosts of Langley [New Press].) Savage describes this material as “notes of briefings and [White House] Situation Room meetings.” If so, the outrage is magnified, since the CIA itself declassified notes of these types to its own officers for them to use in an effort to discredit the Senate intelligence committee report on CIA torture. That kind of self-dealing is unacceptable.

Mr. Davidson referred to–and journalist Savage reported–the practice of halting testimony with a point of order and asking the committee chairman to overrule the witness. This has not happened in Davidson’s experience. But there was plenty of that in Congress right through the 1970s. This is the time to bring back an old practice. As I said in this space two days ago, by not enforcing its authority the Senate intelligence committee here is helping to kill democracy in America.

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.

Update: Senate Torture Report

June 9, 2017–Some days are better than others. Yesterday North Carolina Senator Richard Burr seemed fairly reasonable in his questioning of James B. Comey before the Senate intelligence committee. Not long before that, Burr raised concern when he renewed earlier demands he had made that the federal executive return to the intelligence committee all copies of the SSCI report of its investigation into CIA torture and detention programs. That day was a pretty poor one.

The Obama administration took little formal action on Burr’s demand. Its Justice Department wavered on whether to declare the report a “federal record,” which would have ensured its perseveration and opened it to freedom of information requests. It ordered other agencies not to “open” their copies. The John Brennan CIA working to bury the report, interpreted that as an instruction to destroy copies in its possession. Now, under the Trump administration, Senator Burr is about to get his wish.

The publisher Melville House, which put out one of the printed editions of the executive summary of the committee study, is responding to this effort to put the report back in the secret vault by making its edition available to the public for free. Get in touch if you are interested.

The Other Coverup: CIA’s Torture Report

June 3, 2017–Now for an update on the other coverup underway in Washington. The other day I framed the CIA’s former director, John O. Brennan, as “The Flying Dutchman” (see “John Brennan: The Flying Dutchman,” May 24, 2017). Mr. Brennan received that sobriquet for his brash promises of compliance with accountability norms followed by maneuvers to avoid accountability at any cost. This was apparent when Brennan worked in the White House as Obama’s NSC director for intelligence, where he had a leading role masterminding the drone war. It became glaring when Brennan took up the reins at CIA, then in the throes of a knock down-drag out fight to prevent the Senate intelligence committee from releasing its investigative report on CIA torture. At his nomination hearings Brennan spoke positively of the investigation, the report, and forthrightly defined “torture.” Once ensconced at Langley the CIA director joined heartily in the fight against release. Like the Flying Dutchman the Brennan accountability ship disappeared into the mists.

The point a few days ago was that Brennan’s performance on torture left him up the creek when it came to trying to convince congressional overseers that the evidence he saw for a Russian Caper was real. Now the fight over the torture report has developed even more ramifications–it appears the Trump administration will use it as part of its effort to evade investigation of the Russian Caper itself. It happened this way:

When the Senate torture report emerged at the end of 2014 it became a political football in the partisan wars of Washington. Republicans hastened to picture the investigation as somehow inappropriate, even unpatriotic. The Senate changed hands in the election of that year, and Richard M. Burr (R-NC), the new chairman of the Select Committee on Intelligence (SSCI), demanded the return to his oversight unit of all copies of the torture report. The Justice Department eventually met this demand by instructing agencies not to open their copies of the report. Nothing happened–except in Brennan’s shop where the CIA director contrived to eliminate those copies at his agency. But there were lawsuits seeking release of the SSCI report, others to convert it to a “federal” record (putting it beyond SSCI reach), requests to President Obama to release it, and court orders reserving copies for use in several cases involving terrorist detainees.

Mr. Brennan’s successor at the CIA, Mike Pompeo, previously sat as a congressman on the House intelligence committee. Like the Flying Dutchman, at his nomination hearing Pompeo promised the senators he would safeguard the torture report–and even read all 6,700 pages of it. Instead Pompeo supported Senator Burr when the SSCI chairman renewed his call for the return of the report copies.

Meanwhile at this very moment Senator Burr and his committee are mounting one of the key investigations of the Russian Caper, making President Donald J. Trump highly vulnerable. By returning copies of the SSCI torture report to the committee, Trump is doing a favor for the chairman of the unit investigating him, handing Burr a political win. President Trump also does a favor for the CIA, currying support from a rank and file who have felt threatened by the report and its revelations of CIA high handedness. For the moment it looks like Mr. Trump has scored a two-fer.

Is the Cover-up Worse than the Crime?

March 29, 2017–Just back from a research trip. There were many days I longed to post here–so much has happened in the past several weeks. There was President’s Trump’s sudden accusation, leveled at predecessor Barack Obama, for personally wiretapping him last year. Then Trump’s dark hint evidence would emerge within a short time corroborating his charge. Then Representative Devin Nunes, chairman of the House Permanent Select Committee on Intelligence (HPSCI) trotting up to the White House, mysteriously to be permitted to see the “evidence,” so he could step outside and run interference for the president yet again. That’s not the half of it. The fabulous Michael Flynn, it turns out, failed to register as a foreign agent while pocketing money from abroad, even while working with the Trump campaign. He also failed to obtain the required permissions from his former military colleagues. The president’s son-in-law, Jared Kushner, held meetings with the Russian ambassador, as well as bankers linked with the Kremlin, during the presidential transition. Impressario Roger Stone now concedes he was in touch with Russians as well as the web presence (individual? organization?) the Russians used as cut-out to toss hacked American political emails to Wikileaks last year. The FBI has affirmed in pubic that it  is conducting an investigation of the Trump campaign’s ties to Russia. And Paul Manafort, erstwhile Trump campaign manager, has now been tied to cash transfers from Russia through Cyprus.

Meantime the selfsame Congressman Nunes has, deliberately or not, robbed HPSCI of all its credibility in investigating the Russian caper, since–despite his responsibility to be even-handed as committee chairman–Nunes has now repeatedly rushed to defend Trump and his political campaign even while supposedly investigating that very entity. Nunes has also cancelled open hearings that were intended to gather evidence. This sounds like nothing other than a pre-emptive defense.

Over the past few days there has been a veritable rush to volunteer testimony to congressional investigating bodies. Among those suddenly clamoring to be witnesses–where before they insisted there was no there there–are Messrs Kushner, Manafort, Stone, Carter Page and others. Beware the Iran-Contra poly–during the Reagan administration’s Iran-Contra scandal the fact of having testified before Congress became a protection against criminal prosecution, because multiple courts dismissed prosecutors’ declarations they had obtained the same evidence independently of what had transpired before Congress.

Events also evoke the old Watergate adage: the cover-up is worse than the crime. Playing with the Russians, so long as it did not involve espionage or embezzlement, violated only limited numbers of statutes. Apart from a possible cut-out on the American side (Roger Stone?), for whom hacking and computer information laws may be implicated, legal liabilities remain fairly limited. But lying to the FBI is a felony crime, as is obstructing justice (say, by interfering with an investigation), or manufacturing “evidence” on a different allegation with an intent to distract or mislead an inquiry. The president’s spokesperson, Sean Spicer, skates on thin ice here. God knows what it cost Ron Ziegler, Mr. Nixon’s spokesman, to follow his boss during Watergate.

For those who favor investigation by a 9/11-style panel or a special prosecutor, so far the allegations lack in drama what they actually do possess in importance. Absent such a dramatic development–along the lines of the 18-minute gap in Mr. Nixon’s audiotapes, or the Oliver North destruction of evidence–the administration should be able to confine inquiries to conventional paths. My bets for the locus of such developments are (1) evidence of positive acts taken to backstop Mr. Trump’s tweets; or (2) concrete confirmation of deals between Trump campaign figures and the Russians.

For the moment everything rides on the Senate Select Committee on Intelligence (SSCI), which, unfortunately, found itself emasculated during Barack Obama’s dark hours trumping the CIA torture investigation. Under its current chairman, Republican Richard Burr, there is not a lot of confidence the SSCI can investigate a paper bag.

Hold on to your hats!

Obama’s Legacy on Torture

December 16, 2016–With Barack Obama’s presidency rapidly drawing to a close there will be reflections on his accomplishments in many fields. In this one, on CIA torture, the record is distinctly mixed. The president declared his rejection of it, acted to end it, and then opened the door to continuation of these abominations. Obama assertedly did what he did because he wanted to look to the future rather than the past, but his administration has made it possible to turn back the clock.

In his very first days in office President Obama issued an executive order explicitly ruling out torture, limiting all entities of government, CIA included, to interrogation techniques listed in standard military field manuals. In a panic the CIA rushed to get the president to change a companion order that restricted custody and closed black prisons to permit it to still handle prisoners. The public clamored for a “truth commission” that would probe the dark arts practiced by the CIA in the war on terror. The spooks quaked in their boots. Mr. Obama, who had denounced torture in the U.S. Congress and on the campaign trail, looked ready to go the distance.

The president’s decision process remains murky even today. Instead he employed an intermediate strategy, ruling out any truth commission, simply declassifying the amazingly flawed legal memoranda used to “justify” CIA torture on George W. Bush’s watch. Even there he battled CIA officers desperate to prevent the opening of this material. The showdown came at an Oval Office confrontation between Obama and a slice of CIA brass in the spring of 2009. The president left his attorney general to decide whether or not to prosecute any CIA officers for actions in torture or such concomitant transgressions as obstruction of justice.

Attorney General Eric Holder kept the potential targets of these investigations on tenterhooks for a time, but one by one he took prospective prosecutions off the table. By then, of course, the Senate Select Committee on Intelligence (SSCI) had begun its inquiry into CIA torture, which led the agency back onto the dark side as it strove to monitor the investigators and minimize their impact. The SSCI inquiry, and its torture report, completed in December 2012, dragged the White House directly into the center of the torture issue–and there Barack Obama failed to rise to the level of his convictions.

While the CIA was still at the level of surveilling the senate investigators, CIA actually stole documents from SSCI computer databases and justified its action as coming on White House orders. Presidential counsel denied that–but Obama’s lawyers never obliged the CIA to restore the purloined records. Once the SSCI report had been completed, the CIA dragged its feet on permitting its release. President Obama, who had publicly expressed support for opening the report, did nothing to hasten this action. When pressed to declassify the report himself, Obama gave the job to the CIA. When the CIA again stood intransigent, Obama had a senior official of his own staff act as mediator, primarily taking the CIA’s side. All these things helped the CIA evade accountability.

Barack Obama no doubt saw himself as protecting government officers who had carried out distasteful orders. But the practical effect of these actions has been to signal that CIA operatives can, with impunity, go so far as to torture. Enter a new presidential candidate–now president-elect–who promises far worse than waterboarding for CIA detainees. That Donald Trump can do that is possible, to a considerable extent, because of what Barack Obama did not do.

With no fanfare, shortly after the 75th anniversary of the Pearl Harbor attack, President Obama reportedly designated the Senate torture report as a “federal record.” This act will supposedly prevent further efforts to shred all copies of the SSCI report and totally erase it. That is too little and too late. Had there been a truth commission, had CIA officers been prosecuted for criminal activity, it would now be abundantly clear that torture is beyond the pale. Instead it is quite likely the American public will have to have this fight all over again. This will come out as a significant failure of Barack Obama’s presidency.

CIA’s Brennan Senses the Abyss

April 13, 2016–If the nation’s top spook can’t see the storm clouds gathering you’d have to wonder if the spy agency is even doing its job. This week the CIA’s director, John Brennan, showed his first sign of life in some time. Brennan gave an interview to NBC News which indicates the agency is at odds with both of the candidates leading on the Republican side in the race for this year’s presidential election. On one level that is a great relief, on another it is disturbing.

Richard Engel of NBC asked Mr. Brennan if the CIA will resume waterboarding in the eventuality that Donald Trump–who has demanded aggressive torture–is elected president. (The other leading Republican, Senator Ted Cruz of Texas, has declared that waterboarding is not torture.) Either one, in office, could be expected to order resumption of waterboarding. Director Brennan replied that he would not re-authorize the euphemistically known “enhanced interrogation techniques.”

That should be a great relief to anyone who worries that America’s behavior in this subterranean conflict is providing fodder to our enemies as they seek new recruits for terrorism.

On the other hand, look at Brennan’s formulation: “I will not agree to carry out some of these tactics and techniques I’ve heard bandied about because this institution needs to endure.” Those are his words. There are a number of troubling thoughts that come from them.

First, Brennan’s statement implies that he understands–as the director told the Senate intelligence committee–that waterboarding is torture. If so, why did he fight so hard to prevent the committee’s report on the CIA torture program from coming to light? Brennan had also told the committee that he had read the portion of its report the CIA would finally declassify and would hasten to bring it to the public. Instead he continued to drag his feet for more than a year and a half.

Second, inside the agency Mr. Brennan went along with a CIA counterspy op that actually targeted Congress, and then he permitted a tainted agency lawyer to file a criminal referral to the Department of Justice in one last effort to suppress the torture report. And then Director Brennan went along with a sham process of enforcing “accountability” on CIA personnel who had engaged in this shabby activity. Every one of those actions was about escaping the consequences of CIA torture and indicates Brennan either spoke with a forked tongue at confirmation or switched sides once he arrived at Langley. Neither posture should evoke public confidence in the man.

Most troubling, there is a operative phrase in what Brennan told NBC: “this institution needs to endure.” Translated: Director Brennan understands the CIA occupies shaky ground already, and its re-engagement with controversial and illegal activities can lead to overwhelming pressures to dismantle it. The agency needs to avoid torture for its own self-preservation. That’s an accurate perception but it begs the question of why CIA did not understand this all along, and why did senior officials like Mr. Brennan permit the agency to dig its hole deeper through its stupid hacking of Congress. There will be more on this story. Stay tuned.

Hillary email Update

February 6, 2016–News continues to boil about secret information allegedly contained in emails sent to Hillary Clinton while she was secretary of state in the first Obama administration. The emerging record continues to confirm what I’ve said in this space: that senior officials of the intelligence agencies, with nearly a year now to pore over Hillary’s email cache, plus their own fish to fry–and demons to fear–find it irresistible to range backwards in time to cast veils of secrecy over information that was in the public domain.

Latest reports add to our point, originally taken from press reporting about the CIA drone war. Other emails apparently pertain to the North Korean missile program, and to events in the Libyan revolution. Some of the 22 emails over which classification is asserted apparently contain the special access slug “HCS-O,” which pertains to human intelligence sources, although officials hasten to add that no specific names of sources or CIA officers actually appear in the emails.

Two more fresh items add to our update. Just yesterday, it was reported, other, similar emails, containing information discussed in classified materials exists in the personal communications files of former secretary of state Colin L. Powell and national security adviser– then secretary of state– Condoleezza Rice. Powell has been quoted responding that it was understood his emails were his–and were not classified. There’s been no response so far from Ms. Rice.

The facts are not what our spooks seem to think. Global events are visible, attract attention, and trigger discussion and analysis. The drone war, to cite our starting point, is watched and remarked upon by a wide range of media outlets, human rights organizations, international entities, think tanks, and national governments (and their own security services). The fact that secret ODNI and CIA documents discuss the same matters does not make those subjects classified. The spooks’ attitude is that even specific CIA information, if it becomes available from any source (such as a leak) other than declassification by the CIA remains secret!

Plus, there is declassification and there is declassification. The CIA quietly releases secret information to an author or journalist, for example, in the expectation that books or articles will show the spooks in a positive light. Yet at the same time others who might request the same or similar information be declassified are denied, told the agency will neither confirm or deny the very existence of the information, or told outright it does not exist.

The other new development is the revelation of “eyewash”–someone’s adaptation of a term of art used by CIA disguise artists. According to these reports eyewash describes a category of documents that move over regular CIA channels that contradict memos or messages which circulate in hidden channels. This is described as a mechanism to reduce the circle of officials knowledgeable about some subject, but it’s much bigger than that. For decades we have known about backchannel and front channel–where the important message goes over the (secret) backchannel and the idle chatter on the (less sensitive) front channel. Nixon’s covert operation against Allende in Chile was facilitated by “Track II,” exactly such a device. The CIA’s destruction of its torture videotapes in 2005 was implemented by a backchannel message to a station chief that ordered that person to put in a request on the front channel, using certain specific arguments and rationales, for authority to destroy the material.

The difference between “eyewash” and backchannel is that in the former the front channel traffic is positively designed to be false.

This is described as a security technique. In its simplest form the safety of an agent is protected by giving broad distribution to the message that says the operative is dead, while tightly restricting the message that gives the spy a different codename and reports his information. For a moment that sounds OK–until you realize the same technique can be applied to deluding the Senate intelligence committee that the Panetta report had no meaning, that the CIA’s hit team operation (Project Cannonball) had long been stopped, or, indeed, that CIA remains responsive to congressional authority at all.

Such methods are worse than unacceptable. Here is an intelligence agency, whose whole purpose is to tell truth to power, where the biblical proverb “the truth shall set you free” is actually carved into the marble wall, indulging in the practice of actively lying– not to the enemy, not is a deception operation, but in official records that will be seen by anyone dealing with the agency on its business–in other words, CIA officers, their bosses, the Congress,  the president.

Meanwhile the same intelligence community is presuming to comb over the private emails of its executive branch masters, such as Hillary Clinton or Colin Powell, and denounce them for having information in messages that spooks decide in retrospect should have been classified!

This is a scam.

As I argued in some length in The Family Jewels the intelligence community has long since passed the point of safeguarding legitimate secrecy in favor of practices designed to protect its own interests–political and financial as much or more than operational. “National security” is expanded–bloated–to hide that. And what I said here last summer (“Hillary’s Emails: Bursting the Secrecy Bubble,” August 22, 2015), I repeat here today: the secrecy rules have become so bloated that senior officials can no longer do their jobs without violating them. It’s time to change the rules, not prosecute the secretaries of state. While we are at it, the CIA and ODNI need to be taken out of the business of declassification.

The Church Committee at 40

May 29, 2015– It has been four decades since the “Year of Intelligence,” 1975, when United States intelligence agencies were investigated in depth by a presidential blue ribbon panel (the Rockefeller Commission), the Senate’s predecessors to today’s oversight unit (the Church Committee) and a House of Representatives investigative panel (the Pike Committee). Nothing like this has happened since. The work of the Church Committee has been the most lasting. Denizens of the secret world mostly recognize that investigation, where, increasingly, even they profess not to have heard of the others. After four decades what is there to remember?

A lot, according to former members of the committee, who assembled in Washington yesterday under the auspices of the Brennan Center for Justice of New York University. Heading the group was Walter F. Mondale, who went from his experience with Church to become the 42nd Vice-President of the United States; and former U.S. Senator Gary Hart, another member of the committee, along with its chief counsel, Frederick A. O. Schwarz, Jr. Also on the podium was Loch K. Johnson, a Church committee staffer. A variety of other members of the committee staff were in the audience. The event proved a combination of reunion and clarion call.

The Church Committee investigation has been mentioned many times in this space and it was instructive to see that members and staff have watched recent developments in U.S. security policy with increasing concern. Vice-President Mondale says that he is a strong supporter of President Barack Obama and admires him very much, but that what Obama has done with U.S. intelligence has been disastrous. The government’s excessive reliance on legal arguments hinged upon so-called “state secrets” is deplorable. The Foreign Intelligence Surveillance Court (FISC)–which the Church Committee was instrumental in the creation of–has gone far beyond its intended role as a magistrate to become a court of general jurisdiction. Now in competition with other federal courts, and serving the intelligence agencies as their secret, special court with no outside interference, the FISC has become a runaway locomotive.

Senator Hart commented that the historical question is why no inquiry like that of the Church Committee had previously been carried out. “It was a hugely disillusioning experience,” he remarked. “There were dark sewers beneath the city on the hill” And the committee had to fight for every scrap of evidence the intelligence agencies eventually allowed them to see.

Outside the formal sessions Church committee veterans to a man (no women staff were at the event unfortunately) were appalled at the breakdown of legislative oversight of U.S. intelligence that has since occurred.

Under the rubric of strengthening intelligence oversight, eighteen of the Church committee veterans, including both Mondale and Hart, signed on to a Brennan Center policy paper that envisions using the Church committee experience as a model for a new investigation of the U.S. intelligence agencies. Their idea is similar to, although less comprehensive than, the inquiry I laid out in my book The Family Jewels and fleshed out in the paperback edition of that work.

It is increasingly clear that public concern over the excesses of our security services is growing. In my view the intelligence agencies actually have a great deal to gain from a new-type Church committee which examines their activities and is then able to reform them and to  pronounce them above board.