One of the principal weapons used by the Bush administration to
engage in illegal surveillance activities -- from torture to warrantless
eavesdropping -- was its refusal to brief the full Congressional
Intelligence Committees about its activities. Instead, at best, it
would confine its briefings to the so-called "Gang of Eight" --
comprised of 8 top-ranking members of the House and Senate -- who were
impeded by law and other constraints from taking any action even if they
learned of blatantly criminal acts.
This was a sham process: it allowed the administration to claim
that it "briefed" select Congressional leaders on illegal conduct, but
did so in a way that ensured there could be no meaningful action or
oversight, because those individuals were barred from taking notes or
even consulting their staff and, worse, because the full Intelligence
Committees were kept in the dark and thus could do nothing even in the
face of clear abuses. The process even allowed the members who
were briefed to claim
they were powerless to stop illegal programs. That extremely
restrictive process also ensures irresolvable disputes over what was
actually said during those briefings, as illustrated by recent
controversies over what Nancy Pelosi and other leading Democrats were
told about Bush's
torture and eavesdropping
programs. Here's how Richard Clarke explained it in July, 2009, on
The Rachel Maddow Show:
MADDOW: Do you think that the current system,
the gang of eight briefing system, allows the CIA to be good at spying
and to be doing their work legally?
CLARKE: I think briefings of the gang of eight,
those very sensitive briefings, as opposed to the broader briefings -
the gang of eight briefings are usually often a farce.
They catch them alone, one at the time usually. They run some briefing
by them.
The congressman can't keep the briefing. They can't take notes.
They can't consult their staff. They don't know what the briefings are
about in advance. It's a box check so that the CIA can say it
complied with the law. It's not oversight. It doesn't work.
To their credit, Congressional Democrats -- over the objections of
right-wing Republicans -- have been attempting
since the middle of last year to fix this serious problem, by
writing legislation to severely narrow the President's power to conceal
intelligence activities from the Senate and House Intelligence
Committees and abolish the "Gang of Eight" process. After all, those
Committees were created in the wake of the intelligence abuses uncovered
by the Church Committee in the mid-1970s, and their purpose is
"to provide vigilant legislative oversight over the intelligence
activities of the United States to assure that such activities
are in conformity with the Constitution and laws of the United States."
But if they're not even told about what the Executive Branch is doing
in the intelligence realm, then they obviously can't exert oversight and
ensure compliance with the law -- which is the purpose of keeping them
in the dark, as the last decade demonstrated.
Yet these efforts to ensure transparency and oversight have
continuously run into one major roadblock: Barack Obama's threat to
veto the legislation. Almost immediately after leading Democrats on the
Intelligence Committee unveiled their legislation last year, the Obama
White House issued a veto
threat with extremely dubious (and Bush-replicating) rationale: such
oversight would jeopardize secrecy and intrude into "executive
privilege." In response to Obama's veto threat, Democrats spent the
last nine months accommodating the White House's objections by
significantly diluting their legislation -- their new bill would
actually retain the "Gang of Eight" briefings but impose notification
and other oversight requirements -- and
two weeks ago the House passed that diluted bill.
But no matter: as Walter Pincus reports today in The
Washington Post, Obama is now threatening
to veto even this diluted bill, and is echoing GOP talking points
when doing so:
The White House has renewed its threat to veto the fiscal 2010
intelligence authorization bill over a provision that would force the
administration to widen the circle of lawmakers who are informed about
covert operations and other sensitive activities. . . .
In a letter sent to the senior members of the intelligence
panels, Office of Management and Budget Director Peter R. Orszag said
Gang of Eight notifications are made in only "the most limited of
circumstances" affecting "vital interests" of the United States, arguing
that the new requirement would "undermine the president's authority and
responsibility to protect sensitive national security information."
Orszag also opposed a Senate bill provision that required
notification of "any change in a covert action," which he described as
setting up "unreasonable burdens" on the agencies, particularly the CIA .
The House bill also requires notification of intelligence "significant
undertakings," a term that Orszag described as "vague and uncertain."
Rep. Peter Hoekstra (R-Mich.), ranking minority member of the
House intelligence panel, noted that the White House objections
were similar to those raised by Republicans, especially regarding
notifications provisions. . . .
Orszag wrote that the notification provisions were one of three
items in the bills that would draw a veto recommendation from the
president's advisers. Another such provision would give the Government
Accountability Office legal authority to review practices and
operations throughout the intelligence community. The White
House contends that broadening the GAO's purview would upset current
relations with the office, which already has access to some intelligence
activity, and adversely affect oversight relationships between the
committees and the community. The provision would also permit any
committee of Congress with an arguable claim of jurisdiction over an
intelligence activity to request a GAO investigation of that
activity.
In other words, the Obama White House -- just as was true for the
Bush White House, and using the same rationale -- does not want any
meaningful oversight (i.e., briefings beyond the absurd Gang of
Eight sham) on whether it's breaking the law in the conduct of its
intelligence activities. One of the Intelligence Community's most loyal
Congressional servants -- Senate Intelligence Committee Chair Dianne
Feinstein -- told The Post that she thinks a deal can be worked
out with the White House, meaning that the bill needs to be diluted
even further, to the point of virtual nothingness, in order for
the White House to accept it.
It's critical to note that this is far from an abstract concern,
because the Obama administration has almost certainly been hiding
intelligence activities from the Intelligence Committees, thus ensuring
it operates without oversight. Read this
October, 2009 article from The Hill -- headlined: "Feingold
sees similarities between Bush and Obama on intelligence sharing"
-- in which Senate Intelligence Committee Member Russ Feingold
explains "his suspicion that the Obama administration is
continuing some of the stonewalling practices of the George W. Bush
administration when it comes to providing full intelligence briefings
to the relevant committees in Congress." And indeed, all year long,
there's been a series of disclosures about highly controversial
intelligence programs that appear to be "off-the-books" and away from
the oversight of the Intelligence Committee. In late January, it was
revealed that the President
was maintianing a "hit list" of American citizens he had authorized
to be assassinated far from any "battlefield," followed by yesterday's
story describing the use of shadowy private contractors to collect
intelligence in Pakistan and Afghanistan.
All of this is sadly consistent with the Obama administration's
devotion to extreme levels of secrecy and resistance to oversight. Last
month, Eli
Lake reported that Obama has simply failed to make a single
appointment to, or even activate the budget of, the The Privacy and
Civil Liberties Oversight Board, the body created pursuant to the report
of the 9/11 Commission to safeguard civil liberties in intelligence
activities; it has thus been completely dormant. And, with a few
very mild exceptions, Obama -- since he was inaugurated -- has affirmately
embraced one radical secrecy doctrine after the next that used to
be controversial among Democrats (back when Bush used them).
The refusal of the Bush administration to brief the Intelligence
Committees on its most controversial intelligence programs was once one
of the most criticized aspects of the Bush/Cheney obsessions with
secrecy, executive power abuses, and lawlessness. The Obama
administration is now replicating that conduct, repeatedly threatening
to veto legislation to restore real oversight.
UPDATE: Marcy
Wheeler notes what is probably the worst part of all of this,
something I consider truly despicable: the administration is also
threatening to veto the bill because it contains funding for a new
investigation of the 2001 anthrax attacks, on the ground that such an
investigation -- in
the administration's words -- "would undermine public confidence"
in the FBI probe of the attacks "and unfairly cast doubt on its
conclusions."
As I've documented at length, not only are there enormous,
unresolved holes in the FBI's case, but many of the most
establishment-defending mainstream sources -- from leading newspaper
editorial pages to key politicians in both parties -- have expressed
extreme doubts about the FBI's case and called for an independent
investigation. For the administration to actively block an
independent review of one of the most consequential political crimes of
this generation would probably be its worst act yet, and that's saying
quite a bit.