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ROCKEFELLER: Don't you understand the way Intelligence works? Do you think that because I'm Chairman of the Intelligence Committee that I just say I want it, and they give it to me? They control it. All of it. All of it. All the time. I only get, and my committee only gets, what they want to give me. Senator Jay Rockefeller (D-WV) April 24, 2007.
Wyden: Intel committee used provision once to release classified info
PORTLAND, Ore. – In 1976 the U.S. Senate gave itself the power to disclose classified information it deemed to be in the public interest, even over the objections of the president of the United States.
During the 12 years U.S. Sen. Ron Wyden, D-Ore., has sat on the Senate Select Committee on Intelligence, senators on the committee have initiated that power "on exactly one occasion," Wyden's office confirmed through an emailed statement last Friday.
That occasion surrounded a now-declassified document summarizing the George W. Bush administration's legal arguments for allowing the CIA to use interrogation techniques – what many would describe as torture – on suspected terrorists.
Even though the process was initiated, in the end, the document, according to Wyden's office, was declassified without using the disclosure provision the Senate created for itself, which is embedded in a resolution that formed the committee in 1976. That resolution is known as Senate Resolution 400 (S. Res. 400).
The document was "eventually released following the more standard process of the executive branch agreeing that it could be declassified," Wyden's office said in a statement. The person leading the executive branch at the time of declassification was not President George W. Bush, but his successor, President Barack Obama.
Senate maintains oversight over intelligence operations
The Senate created its permanent intelligence committee May 19, 1976, following the disclosure of abuses by the FBI, CIA and other agencies. Those abuses included opening the mail of American citizens, plots to assassinate foreign leaders and illegal electronic surveillance.
After much debate and consideration, the Senate set forth in S. Res. 400, the following power:
"The Select Committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure."
The Senate, however, did not make the process easy with those "provisions" it created for itself. If the committee wants to declassify particular information, the resolution requires, among other things, the committee notify the president of the United States of its intentions. If the president objects to the declassification of the information in writing within five days, the committee then must get approval from the full Senate.
In an interview Friday afternoon in Portland, Wyden declined to describe the behind-the-scene efforts the committee used while invoking the disclosure provision to force the executive branch to declassify the legal reasoning for the CIA's detention and interrogation program. The committee's internal debates are secret.
According to Wyden's office, the disclosure provision is "generally seen as a backup option – members of the committee usually attempt to negotiate agreements with the executive branch about what will be declassified and what won't, without relying on the S. Res. 400 procedures."
Wyden, in the interview, said that the disclosure provision is one of many tools available to get classified information in the public interest declassified.
"(The disclosure provision) is one route. I think that there are a variety of routes (that can be taken)," he said. "So I think it's one tool. I wouldn't say it's the only tool."
The Senate Select Committee on Intelligence is currently working to declassify the committee's 6,000-page enhanced interrogation report further detailing the CIA's use of torture and the role that private contractors played in the program. Wyden has said he hopes that it will be declassified soon.
In its written statement to KATU.com, Wyden's office floated the committee's disclosure provision as an option to getting the report declassified.
"As of now, the committee has not made a decision to use the S. Res. 400 process to accomplish this, though that is certainly one option," Wyden's office said.
Wyden has worked for years to get presidential administrations to be more open with him, the intelligence committee and the public. And he has described that process as nonlinear.
"What is the challenge about these discussions is that, particularly oversight and the intelligence field is ... you don't just have a hearing and someone shows up and offers a bill and offers an amendment," he told Oregon reporters during a telephone conference shortly after Edward Snowden leaked classified information about the National Security Agency's bulk collection of Americans' telephone records.
He gave the reporters two examples he said "where I believed we've been able to produce significant accomplishments in six months and neither, I think, were kind of textbook with respect to how the Congress works."
For example, the intelligence committee was able to finally receive the classified legal opinions the Obama administration used to justify a drone strike that killed an American citizen in Yemen suspected of terrorism. Wyden threatened to hold up the nomination of John Brennan as the head of the CIA if the committee didn't get those legal documents.
The second example, he said, was in regards to the so-called Anti-Leaks bill that he said would have significantly rolled back the public's right to know because it would have harshly punished whistleblowers without due process.
He put a public hold on the bill until the overly broad language was stripped from it, he said.
A third example arose last summer when it was disclosed that the NSA had collected tens of thousands of Americans’ emails and that the Foreign Intelligence Surveillance Court ruled that the collection was unconstitutional and ordered the NSA to fix the problem.
Wyden, during a City Club of Portland meeting in late August, credited his intelligence aide, John Dickas, for leading the charge to get that court ruling and opinion declassified.
"He saw that there was a classified ruling from the FISA court, making it clear that not only had the spirit of the FISA law been violated, but there has been a violation of the Fourth Amendment," Wyden said.
That information helped lead the Electronic Frontier Foundation to file a lawsuit which helped spur the government to declassify the information.
CIA Search of Congressional Computer Sparks Constitutional Crisis
By Dan Froomkin 11 Mar 2014, 12:07 PM EDT 320
Sen. Dianne Feinstein speaking on the Senate Floor on March 11, 2014.
Two top Senate leaders declared Tuesday that the CIA’s recent conduct has undermined the separation of powers as set out in the Constitution, setting the stage for a major battle to reassert the proper balance between the two branches.
Intelligence Committee chair Dianne Feinstein (D-Calif.), in a floor speech (transcript; video) that Judiciary Committee chair Patrick Leahy (D-Vt.) immediately called the most important he had heard in his career, said the CIA had searched through computers belonging to staff members investigating the agency’s role in torturing detainees, and had then leveled false charges against her staff in an attempt to intimidate them.
“I have grave concerns that the CIA’s search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause,” she said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”
She concluded: “The recent actions that I have just laid out make this a defining moment for the oversight of our intelligence community. How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee. I believe it is critical that the committee and the Senate reaffirm our oversight role and our independence under the Constitution of the United States.”
She also accused the CIA of obstructing her committee’s torture inquiry in general, and of disputing findings that its own internal inquiry had substantiated.
The document at the heart of this confrontation is an internal review conducted by the CIA of the materials it had turned over to Feinstein’s committee during the course of the four-year congressional investigation into the Bush-era torture practices.
Feinstein said the document, which has become known as the Panetta Review after then-director of the CIA Leon Panetta, was first discovered by committee staff using CIA-provided search tools in 2010. It became particularly relevant later, after the committee completed a scathing 6,300-page report in December 2012, and the CIA sent its official response in June 2013.
The committee’s detailed report is still classified, but it is known to be highly critical of both the CIA’s role in the torture regime and its campaign to deceive Congress about it. The CIA vehemently took issue with those conclusions.
“Unlike the official response, these Panetta review documents were in agreement with the committee’s findings. That’s what makes them so significant and important to protect,” Feinstein said.
Based on the CIA’s extensive record of removal and destruction of evidence, which Feinstein detailed in her floor speech, committee staff decided “there was a need to preserve and protect” a copy of the review, which meant bringing it back from the CIA-leased offices in Virginia where staff had been forced to conduct their investigation to secure facilities in a Senate office building.
In December of 2013, Sen. Mark Udall (D-Colo.) revealed that the intelligence committee was aware of the internal report, which he noted “is consistent with the Intelligence committee’s report, but amazingly it conflicts with the official CIA response.”
Feinstein said that a month later, John Brennan, the current director of the CIA, informed her that CIA personnel had conducted a search of the committee’s computers in the Virginia facility, including the standalone network that contained the committee staff’s own internal work product and communication.
The senator was outraged, she said, and fired off a letter expressing her concerns that the action was illegal and unconstitutional.
“I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither,” she said.
“Besides the constitutional implications, the CIA search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”
Feinstein said she later learned that the CIA’s own inspector general had made a criminal referral to the Justice Department regarding the search of the congressional computers by CIA personnel.
But what seemed to really set her off was the CIA’s counter-charge, made through acting CIA general counsel Robert Eatinger, that her staff had illegally accessed and removed the document.
“Our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself,” she said.
“As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting counsel general’s referral as a potential effort to intimidate this staff, and I am not taking this lightly.”
She added: “I should note that for most if not all of the CIA’s detention and interrogation program, the now-acting general counsel was a lawyer in the CIA’s counterterrorism center, the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
“And now, this individual is sending a crimes report to the Department of Justice on the actions of Congressional staff — the same Congressional staff who researched and drafted a report that details how CIA officers, including the acting general counsel himself, provided inaccurate information to the Department of Justice about the program.”
Feinstein’s fighting words were in stark contrast to her role as a champion of NSA surveillance. In most cases, Feinstein has served as an example of how badly oversight over the intelligence community has failed, serving as an accessory to the very kind of excesses her committee was established, in the 1970s, to prevent.
But torture has been the exception for Feinstein, who in stark contrast to President Obama has demanded an authoritative, official accounting of what happened during the Bush years.
Feinstein made it clear that she is eager for her committee’s report to become public. “If the Senate can declassify this report, we will be able to insure than an un-American, brutal program in interrogation and distension will never again be permitted.”
When Feinstein concluded, Leahy called for dramatic action. “We are supposed to be the conscience of the nation,” he said of the Senate. “Now let’s stand up for this country.”
In a statement, Leahy later continued: “This is not just about getting to the truth of the CIA’s shameful use of torture. This is also about the core founding principle of the separation of powers, and the future of this institution and its oversight role. The Senate is bigger than any one Senator. Senators come and go, but the Senate endures. The members of the Senate must stand up in defense of this institution, the Constitution, and the values upon which this nation was founded.”
Brennan, in remarks at a Council on Foreign Relations, said the CIA wants to put the torture controversy behind it. “Even as we learn from the past, we must also be able to put the past behind us.”
Misrepresenting Feinstein’s charge as one of CIA “hacking”, he denied it. “Nothing could be further from the truth,” he said. “We wouldn’t do that. That’s beyond the scope of reason.”
And he said he would leave it to the Justice Department to sort out the dueling referrals, and figure out who was in the wrong.
UPDATE: Virginia Sloan, president of The Constitution Project, a bipartisan legal watchdog group, issued the following statement:
We are outraged by Senator Feinstein’s description of repeated efforts by the CIA to thwart critical and legitimate congressional oversight through delays, attacks, intimidation and attempts to conceal. This is not a partisan issue. Such conduct strikes at the heart of our nation’s constitutional system of separation of powers.
This is truly a defining moment, not only for congressional oversight of the intelligence community, but also for President Obama’s legacy on torture. The White House cannot allow the CIA to drive this process any longer. The president must ensure that the committee’s report is declassified to the fullest extent possible, as well as the CIA’s response to the committee’s study and the so-called Panetta review. But President Obama should not stop there; he should declassify the rendition, detention and interrogation program itself.
UPDATE 2 at 2:34 p.m. ET:
Statement from Sen. Mark Udall (D-Colo.):
The actions the chairman outlined are the latest events that illustrate why I directly pushed CIA Director Brennan to acknowledge the flaws in and misrepresentations about the CIA’s brutal and ineffective detention and interrogation program. Unfortunately, the CIA responded by trying to hide the truth from the American people about this program and undermine the Senate Intelligence Committee’s oversight role by illegally searching committee computers. The U.S. Constitution is clear and Coloradans agree: The separation of powers and aggressive oversight are fundamental to our democracy, and Coloradans can count on me to continue to protect these foundational pillars no matter who is in the White House.
Statement from Sen. Ron Wyden (D-Ore.):
I commend Chairman Feinstein for shining a light on the unprecedented invasion by the CIA into computers used by Senate Intelligence Committee investigators. The CIA’s own recent court filing makes clear that the work product on these computers was and is ‘the property of the Committee.’ I share her concern that this search may have violated both federal law and the US Constitution. In addition to the grave implications for the Constitutional separation of powers, I am extremely troubled that the CIA leadership has neither responded to specific questions about this search nor even acknowledged that it was inappropriate. This is simply not acceptable in a democracy.
I will continue to support Chairman Feinstein’s efforts to get more answers and accountability from the CIA about this search. In my judgment, the Intelligence Community leadership’s misleading statements on interrogation and many other issues has undermined their credibility. I will continue to work with my colleagues to ensure that the facts about the CIA’s detention and interrogation program are made public, so that the American people can make up their own minds about what happened and prevent the mistakes of the past from being repeated.
White House spokesman Jay Carney, meanwhile, said “The president has great confidence in John Brennan and confidence in our intelligence community and in our professionals at the CIA.”
The Inverse of Oversight: CIA Spies On Congress
By Dan Froomkin 5 Mar 2014, 5:53 PM EDT 350
In the wake of an explosive new allegation that the CIA spied on Senate intelligence committee staffers, one senator felt this morning that he needed to make something clear.
“The Senate Intelligence Committee oversees the CIA, not the other way around,” Sen. Martin Heinrich (D-N.M) said in a press release.
In normal circumstances, that would have been a statement of the obvious. Today, it was more a cry for help.
McClatchy News Service on Tuesday reported that the CIA’s inspector general has asked for a criminal investigation into CIA monitoring of computers used by Senate aides who were investigating the agency’s prominent role in the Bush-era torture of detainees.
Specifically, McClatchy reported: “The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.”
In a letter to President Obama on Tuesday, Sen. Mark Udall (D-Colo.) referred to what he called “unprecedented action against the Committee in relation to the internal CIA review,” and described it as “incredibly troubling for the Committee’s oversight responsibilities and for our democracy.”
The allegation comes on the heels of a fruitless quest by members of the House and Senate to get NSA officials to confirm or deny whether information on phone calls by members of Congress has been swept up in the agency’s metadata dragnet. (Since it’s so indiscriminate, presumably they have, but the NSA won’t say so.)
The Senate report at the heart of this confrontation took four years to complete, runs 6,000 pages, and was adopted by the committee in December 2012. It is said to be highly critical of both the CIA’s role in the torture regime and its public protestations of innocence. But the White House, under ferocious lobbying by the CIA, has refused to declassify it.
Most recently, controversy has arisen over an internal CIA report that was reportedly critical of the agency’s practices, but was withheld from Senate investigators.
Heinrich, in his statement, complained: “Since I joined the Committee, the CIA has refused to engage in good faith on the Committee’s study of the CIA’s detention and interrogation program. Instead, the CIA has consistently tried to cast doubt on the accuracy and quality of this report by publicly making false representations about what is and is not in it.”
The resistance to oversight about torture mirrors similar problems legislators have experienced when it comes to trying to monitor surveillance programs and other secret activities, with one huge exception: The torture report was championed and endorsed by Senate intelligence committee Chairman Dianne Feinstein (D-Calif.) and other senior members of that committee. By contrast, Feinstein and House Intelligence Committee Chairman Mike Rogers (R-Mich.) have emerged as the strongest defenders of surveillance activity, leaving the so-far-losing battle for disclosure to be fought by more rebellious legislators.
The consistent theme is that members of Congress are finding themselves at an ever-increasing disadvantage when it comes to even finding out what intelligence agencies are doing — not to mention reining them in.
More often, the only way members of Congress can pierce the veil of secrecy is through classified briefings. But those briefings are often problematic, some members of Congress say. First, it’s too easy for briefers to give them the runaround — and then they feel circumscribed in what they can say publicly.
For those reasons, some members, like Rep. James Sensenbrenner (R-Wisc.) generally avoid secret briefings. A Sensenbrenner spokesman recently told MSNBC the congressman “does not want to be limited by the restraints of confidentiality.”
Sen. Sheldon Whitehouse (D-R.I.) said on Tuesday that he felt limited in what he could say in response to documents leaked by former NSA contractor Edward Snowden.
“We were stuck, because if you’re a member of Congress you are not a declassifier and even if something is out there, unless it has been formally declassified, you can be arrested for commenting on or echoing things, even if they’re out in the public domain, because now you’re confirming it to be true,” he said.
The unlikelihood of such a spectacle aside, any member can always go to the floor and say whatever they want. The U.S. Constitution Article 1, Section 6, specifically protects senators and representatives from such repercussions, stating that “for any speech or debate in either House, they shall not be questioned in any other place.”
Sen. Barbara Mikulski (D-Md.) famously responded to Attorney General Eric Holder’s contention that senators had been “fully briefed” on surveillance programs at a June 2013 Senate Judiciary subcommittee hearing by saying: “‘Fully briefed’ doesn’t mean that we know what’s going on.”
Here is video of Rep. Justin Amash (R-Mich.) describing the futility of getting information in intelligence briefings for members of Congress at the Cato Institute in October 2013: “You’ll find that it’s just a game of 20 questions,” he said. But “you don’t know what questions to ask…. You don’t have any idea what kind of things are going on.”
You have to start just spitting out random questions. Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don’t know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of twenty questions. If you ask something in slightly the wrong way, they will tell you no. They’ll say No , we don’t do that. Or NO, that agency doesn’t do that. Maybe some other agency does it, but they’re not going to tell you that…. Or no, we can’t do that under this program, but we can do it under this program.. they don’t tell you that information… but you don’t know what the other programs are.
With Airplanes, Aliens, Free Agents and 18 year olds gone wrong making the headlines, other almost as important news has missed the headlines again.
