Today, of course, is the day McConnell et al. troop to Hill. They will obfuscate once more to the diminutive dwarfs in the Duma ‘oversight’ committees (a) why the Agency destroyed tapes of water board torture (duh); and (b) the actual torture used — despite briefing the senior dwarves on this subject back in 2002, and on and on. We just note that McConnell, Hayden et al., unlike the attorney at DoJ, have never volunteered to be water boarded. Naturally, as you know, when the attorney reported the experience undeniably equalled torture he was summarily fired.
Back in the day (this sounds like parents telling kids they walked uphill to school both ways in the snow, we know that), whenever Casey prevaricated before real Senators or a real Congressman with spine and real staff who exercised real and powerful oversight, Bobby Inman, Casey’s deputy would signal the assembled overseers with a pre-arranged signal — such as adjusting a sock, etc. Inman denied doing so. He later ended his career with — as you may recall — that bizarre freak out with Bill Clinton. Tragic in its own way.
Whether one agreed with Congress or not during the 1974/5-1990s period, Congress understood the power of the authorization and appropriations process. Congress acted to at least constrain the Community and the Permanent National Security State. Not always, of course. Congress, after all, approved CALEA and other measures. After 9/11 Congress rushed through largely without reading the Patriot Act. It’s been downhill ever since. Still, oversight examples can be found such as creating FISA (which the executive signed off on). The power struggle over Central American policy is another case. We even got some glamour with Bianca Jagger. True, Casey pulled the then ultimate circumvention of the Boland Amendment to explode in Iran Contra. We still got the visually pleasing Fawn Hall. Yet Ollie remains a bad aftertaste on Faux News.
Marty Lederman over at Jack Balkin’s place notes that the oversight process needs reform. This question, and how to do it, has been the subject of specialist, academic and practitioner debate almost since the first whisper that Church and Pike Committees would hold hearings. And we couldn’t agree more in principle.
Where Marty stumbles a bit is the focus on process — although he notes that the post is a quick summation of thoughts rather than a considered essay. We get that. Still, a focus on process is understandable because legal people by their nature are saturated by process. It won’t work in this and similar situations. Relying on process will always crash and burn.
We should address and dispense with one notion at the outset. That’s the notion that the intelligence oversight issue can be settled by citing law or legal precedent/common law. If you see that, Dear Reader, know that you are dealing with a neophyte. Or one paid by the word.
Anyone can site Youngstown Steel till the cows come home (or vice versa), Louis Henkin’s Restatements, etc. All a useless exercise in resolving the power outcome. (If one’s efforts is another agenda such as to overawe a dim network anchor, that’s something else). As with most high constitutional questions, ultimate resolution is based on a political outcome or compromise. Lawyers love to cite precedent — as just one example, Turley has made a career migrating to Olbermann’s show quoting dicta (i.e. non-binding language in decisions that are not explicitly part of the holding). (We deliberately omit the courts’ traditional refusal to intervene in these issues by the punt of the ‘political question doctrine’).
As we may have mentioned over at STSOZ 1.0 we spoke with John Nields, counsel to the House Majority for Iran Contra, years ago. We asked him if, when he was in the seat, he truly understood he was unravelling a covert action program rather than a simple complex litigation matter (as he did well at Howery and Simon). And what that meant for his investigation and approach. His reply was no, he did initially focus too much on legal process and noted Congress and the investigation over all adjusted accordingly. That’s not to say or imply Nields was a naif. He brought Bivens actions against rogue FBI agents earlier. The question here? Simply the magnitude of deception and sleight of hand.
Let’s accordingly take the larger example of the Executive and its day-to-day relation to the Community and particularly the Agency. This is more useful as an intellectual exercise than citing legal dicta, supra.
Much of the scope and range of the Agency’s overall direction are not statutory at all. Rather they are set out in classified Executive Orders. The most famous now public one perhaps is Reagan’s E.O. 12333. Its purpose when crafted was to to ‘unleash’ the CIA (It also gave a nod to Congress prohibiting assassination. This, as you probably know is now narrowed by context, i.e. if a leader just happened to be in a bunker during a JDAM strike, etc. Isn’t it quaint that the American people were outraged their government engaged in assassination?) E.O. 12333 still forms the DNA of other contemporary, amended and still classifed executive orders. Many at the time noted that ‘unleashing’ the CIA resulted in dog determined to wag its tail and then roll over. The former elan gone — institutional cultures can not be changed by a statute or presidential executive order.
If executive orders are important to understand the Community in its day-to-day activities, similarly, a president gets a NSC that he/she prefers. Wilkerson et al.’s claim that the National Security Act of 1947 needs reform. They want a law to make sure the National Security Council meets and informs all relevant Cabinet secretaries or their designees what is going on re policy. On its face this is absurd.
Forget the Warlord for a moment. Consider the Trickster. William Rogers, the alleged Secretary of State, was so out of the loop on almost everything, even the Soviets were awestruck (their D.C. ambassador’s cables reporting on all this and the back channel with Kissinger now let out to the public. The Chinese too must have been deeply amused re the 1971/72 Kissinger back channel). Kissinger himself used to commission Community studies and NIEs on the flavor of ice cream on Pluto, whether Upper Volta posed a threat to NATO — to eat up their time, distract them and ultimately humiliate them. La plus ca change to today, except Condi was as much a fool as Rogers et al. and EOVP/OSD did the cutting out. Even Zbig and Vance fought it out much to Carter’s preference (he refused to intervene).
Imposing new process will not change any of that. As we said, Presidents get the national security apparatus they want or are comfortable with.
Now, back to the Hill. Intelligence activities that are collection related are arguably those closest to Executive power and tradition. Special activities (i.e. covert action) are those blended activities which conceivably can involve congressional war making powers. We understand as noted that Marty concedes he offers his suggestions on the fly while he ponders other matters. The tragedy is that almost everything he says IS the current law. For example, notifying the Gang of Four of Eight is only supposed to cover “special activities” (covert action) and for 48 hours. That was the heart and soul of the 1980 Oversight Act. Only a weak and supine Congress allowed Cheney and Addington to expand this to essentially gag Congress. The Duma went along with it.
In fact, every suggestion he makes actually requires the dwarves in the Duma to act as co-equal branch of government. That again can not be solved by process. We went through all this several times in the past as prologue department. Snarlin’ Arlen introduced several bills circa 1988 that in many ways mirrors the 9/11 Commision including the DNI position. Either congressional leadership selects Oversight Committee Chairs that are willing to take on the Community and act accordingly (thus assuring that weaklings like Rockefeller or servants like Hoekstra are not Chairs for authorization and also consciously watching appropriations) or they don’t. Laws won’t change that. It is tragic beyond words that it takes Byrd and now Feingold to be lonely voices in the wilderness. (Ten years ago it would have been inconceivable for the Stiftung to write that about them. And like Andre the Giant, we know what that word means).
To paraphrase the Bard, “[t]he fault, dear [America], is not in our stars, But in ourselves [and our Duma], that we are underlings.”
Comment says
Gregg makes some good points, but his political naivte is stunning. Le Carre is now a burned literary allusion on the right – He has said too many anti Bush things. Smiley is impossible in today’s America – He was barely conceivable in post Imperial pre cuisine London. Also – Smiley would be attacked in hearings- it’s easy to see his rivals torch him via leaks to key HPSCI right wingers when he blows up some bogus op. Spymaster Johnson –
Dr Leo Strauss says
Not sure we disagree:
Donald Gregg on George Smiley’s War.
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/30/AR2007123002236.html
Anon says
LOL – Podhoretez and Solomon – They would be great in a new Crossfire. Aggressive/Passive V. Passive/Aggressive
http://www.nytimes.com/2007/12/09/magazine/09wwwln-q4-t.html?_r=1&ref=magazine&oref=slogin
Hunter says
What was it Publius said? Paper barriers will be insufficient to maintain our freedoms; only a vigilant and manly spirit in the people can constrain these institutions? Something like that. Of course, ‘we, the people’ have long since lost any such spirit (even updating to modern, more pc language), but I think the original idea was that at least the members of the various branches would work to balance each other since, being people devoting significant portions of their lives to politics, they couldn’t help but develop natural self-power protection reactions.
The practice of electoral politics in the late 19th century was pretty screwy (the dangers of partisanship made manifest…), but at least the members of the separate branches still protected themselves. The practice of electoral politics in my lifetime (and probably a few years before) is such that this is no longer the case. Why? Clearly, the media has a lot to do with it, forcing candidates to spend so much of their time and energy fundraising, etc…
The problem seems to have metastasized. Destroying tv (as the internet seems to be doing, slowly) won’t destroy, e.g., the lobbying power-structures that have grown in this fertile environment but are now strong enough to survive without it. What to do, what to do…