These days it’s a commonplace to diagnose a clash between two parts of our government and conclude that both are wrong. The case at bar this week is the uncharacteristically rancorous fight between the CIA and Senate Select Committee on Intelligence Chairman Sen. Dianne Feinstein (D-Cal).
On one hand is the Senate committee which has, since 2009, been investigating the Bush-era program in which terrorists would be subjected to rendition — capture and removal to another nation for interrogation — and the “enhanced interrogation methods” that have been loosely (and incorrectly) lumped together with torture.
On the other hand is the CIA which has been playing hide and seek with Senate investigative staff even to the degree of depriving them of documents previously made available and complaining to the Justice Department of possible criminal conduct by Senate staffers. (Some of them took printed versions of some documents back to the Senate’s own classified information facilities.)
Feinstein took to the Senate floor last Tuesday to accuse the CIA of interfering in the Senate investigation by doing things such as taking back documents that earlier had been made available to Senate staffers and even hacking into the Senate staffers’ computers to see what they’d thought was important.
The Senate investigation has been going on since 2009 at a CIA-leased facility. There, some 6.2 million pages of documentation have been made available by the intelligence agency on a secure computer network. Some of the documents were printed and taken back to the Senate, others have been taken away from the Senate staffers by the CIA in fear of leaks and in a bizarre attempt to impose some sort of executive privilege as a bar to review. In Feinstein’s Tuesday speech she blasted the CIA for depriving the Senate staffers of key documents and spying on them in violation of Executive Order 12333 (which prohibits the CIA from spying inside the U.S.).
Also in dispute are the CIA’s internal report (the “Panetta review”) on the rendition and enhanced interrogation methods and the Senate’s own 6,300-page report on them. (CIA Director Brennan’s response to that report is labeled “deliberative, processed, privileged document,” about which more in a minute.) Neither document has been made available to the public. Release of the Senate report is an urgent priority for Feinstein and the committee Democrats, but only the executive branch can declassify something. The CIA has refused to release them and — in her Tuesday speech — Feinstein said that the White House supports declassification of the report which would lead to its release. (President Obama said Wednesday that he’s committed to following the law and declassifying the report as soon as it’s finished.)
In a Wednesday Washington Post story, obviously based on what the CIA told the newspaper, the CIA’s removal of documents from the reach of the Senate staffers was done because the CIA feared leak of (among other things) the identity of a terrorist who is being detained at Guantanamo Bay, Cuba. That terrorist has reportedly been turned and is now a CIA source code named “Penny Lane.”
The CIA’s fear of leaks is entirely reasonable given the sorry history of the Senate Intelligence Committee’s conduct over the years. On January 8, 1987 NBC broadcast a report on the Iran-Contra scandal that was clearly tied to information that could only have been leaked by the Senate. An investigation showed that Sen. Pat Leahy (D-VT) had allowed a reporter to search through the classified Senate file. Leahy later admitted to the leak.
Leaky Leahy also leaked information on a covert operation planned by the Reagan administration to topple Muammar Gaddafi. Leahy was finally removed from the Intelligence Committee.
In March 2006, Senators Ron Wyden (D-OR), Jay Rockefeller (D-WV) and Dick Durbin (D-IL) revealed a top-secret (“black”) satellite program because they disagreed on how much should be spent on it. The three were the subject of a criminal referral — an accusation of criminal conduct — that the Justice Department received and promptly buried.
And not to be forgotten are Chairman Feinstein’s leaks. For example, she divulged some of our top-secret drone operations on the Senate floor, because she disagreed with them.
The Democrats have an altogether awful record of leaking top-secret information to inflict damage on political opponents regardless of the impact on national security.
But the CIA has a lot to answer for as well. Another not to be forgotten fact is that while the CIA has often been politically motivated, that sort of behavior has become a lot worse under President Obama.
Which brings us to the muddled privilege concept the CIA seems to be asserting. It’s said that some of the documents it’s provided to the Senate are “deliberative,” like the Brennan response to the Senate Committee’s report. This is a trial balloon to see if it can make a claim of executive privilege stick.
Which is utter nonsense. Once the CIA gave the documents to the Senate, even if they were only on a computer database and not yet printed out, any privilege that might have attached to them is waived. It’s the same thing as would happen in court: if your attorney gives the other side’s attorney an otherwise privileged document the privilege is waived. The same goes for two — in this case opposing — branches of government. If an executive branch agency gives any Senate or House committee a privileged document, the privileged document is waived the second someone begins to read it. You can’t take it back. Unless you’re the Obama administration and a compliant Congress gives up the fight.
Don’t forget that the CIA is as politically motivated as the Intel Committee Dems. What they are fighting over is more than just leaks or specious claims of executive privilege.
If I were a suspicious character, I would wonder why — after making the Obama campaign all about fixing what Bush broke, after making a political spectacle of ending the enhanced interrogation methods and renditions soon after Obama was inaugurated — what the Obama regime was trying to hide.
One thing it could be hiding is that renditions continued after Obama made such a political issue of ending them. They may still be rare, but according to multiple sources, they have continued far beyond Obama’s inauguration. Just because Obama has refused to move newly captured terrorists to Gitmo doesn’t mean we don’t hand them over to other countries more interested in what the terrorists know.
As to the enhanced interrogation methods, what Democrat wouldn’t love to revive the “Blame Bush” mantra of 2008 in order to save the Democrat-dominated Senate? The Senate’s 6,300-page report is supposedly very grim and detailed, with much violence and many harsh judgments made. But there’s another even more likely reason for trying to stop the Senate report from being published. The CIA, like any other bureaucracy, protects itself before it does anything else. And it must be concerned that some of the CIA personnel who conducted the enhanced interrogations could be criminally liable for their conduct.
Which may or may not be possible. We don’t know because, as I’ve written several times, we had a good and clear criminal law on torture before John McCain rewrote it in 2005. Before then, waterboarding wasn’t illegal, nor were things included in the enhanced interrogation methods like slapping someone hard across the face. (For the record, both were legal before 2005 because neither was intended to cause pain and neither caused permanent damage to the person receiving it as hundreds of U.S. pilots who were waterboarded in “SERE” training can attest.) For anyone involved in the EITs after 2005, McCain’s law makes indictment likely because it’s so vague almost physical contact with a prisoner could be torture.
So where are we? The CIA has made a criminal referral to the Justice Department against the Senate staff, DiFi has claimed the CIA violated a whole bunch of laws, and everyone apparently expects Eric Holder to get to the bottom of it all. Seriously? What he’ll do is bury the whole thing until after 2016 and by then it’ll be forgotten.
At this point, I’ll bet the CIA will prevail because Congress — whether it’s in a Democratically dominated Senate or a Republican-dominated House — is only a useful tool to the president, available when he needs it and tossed aside when he doesn’t. DiFi doesn’t get that, and she may never. Which makes it that much more important that the Republicans win the Senate in November.
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