Report on CIA black sites & torture may provoke constitutional crisis

We reported recently on AMERICAblog about the anger of Senator Dianne Feinstein (D-CA), chair of the Senate Select Committee on Intelligence — i.e., the “spook state” oversight committee — because the CIA has apparently been illegally spying on … the Senate Select Committee on Intelligence. CIA spying? Quelle surprise.

As Jake Tapper pointed out, Ms. Feinstein’s point seems in part to be — “You can spy on thee, but not on me and my friends.” (My pharaphase of Tapper.) Oops. Seems that what went around came around after all.

But there’s a larger question here, and it involves the Constitution. For more on that, here’s Joshua Holland writing at Bill Moyer’s good site, and his interview with Jonathan Landay, who is described in the introduction below:

Report on CIA Black Sites and Torture May Provoke a Constitutional Crisis

On Tuesday, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) accused the Central Intelligence Agency of violating federal law and undermining Congress’ constitutional oversight powers. She alleges that CIA officials monitored secure computers used by Capitol Hill staffers to prepare a report that reveals the agency’s Bush era legacy of black detention sites and enhanced interrogation programs – methods many have denounced as torture.

This is the latest development in a long-standing feud between the intelligence agency and Congress. Wrangling over the report, which runs over six thousand pages and cost the government $42 million to prepare, has led to what some are calling a “constitutional crisis.”

Three national security reporters in McClatchy Newspapers’ DC office — Jonathan Landay, Ali Watkins and Marisa Taylor — first reported the alleged snooping last week. caught up with Landay to get some background. Below is a transcript that has been lightly edited for clarity.

What’s at stake, and what could be made public, is the CIA’s own internal information on CIA-run “black sites” (like the one at Bagram Airfield, for example) and the torture it performed there. Not nothing. Also at stake — Is Congress allowed to see CIA information in preparing a report on the CIA? Also not nothing.

Lynndie England proving the First Rule of Torture — it exists to please the torturer

Lynndie England proving the First Rule of Torture — it exists
to please the torturer

Because the black sites torture itself certainly violates both national and international law, this is among the crown jewels of the spook state. The right to torture and the right to lie about it are always to be tightly held. Any discussion of them must be … not discussed. In addition, any revelation that torture performed at these black sites was far worse than revealed, and produced no useful information at all, is worse than embarrassing. It reveals the First Rule of Torture: “Torture has one goal — to satisfy the torturer.”

One more word — there seem to be two kinds of report discussed below. One is a set of documents produced internally by the CIA  and marked “top secret” — the so-called “Panetta Review” documents as discussed later in the interview — and another six-thousand-page review document being produced by the Senate committee based on its research into the matter. The issue seems to be committee access to the internal CIA documents that were never released, or intended to be released, to Congress.

Committee staff saw the internal documents (with CIA permission) and also copied them (without CIA permission). Also apparently, the CIA hacked Senate committee computers (without committee permission) to find this out.

Now, from Holland’s interview (my emphasis):

LANDAY: … The Senate Intelligence Committee staff, we are told, determined that their computers were being monitored when they were confronted by the CIA over the fact that they had printed out and removed, allegedly without authorization, secret [CIA] documents — documents stamped “top secret” — from an electronic reading room that they had been provided by the CIA in which to do their work and in which to review classified documents.

U.S. Torture at Abu Ghraib prison in Iraq

U.S. torture at Abu Ghraib prison in Iraq

We don’t know exactly what’s in the [committee?] report. Only people who have been able to read the report know what’s in it. And that’s because not even the executive summary has been released at this point. But members of the committee have said in public, in hearings and elsewhere, that there are very disturbing findings in this report, that the report shows that the information that was gained through waterboarding and these other so-called enhanced interrogation techniques, which a lot of experts consider to be torture, had very little value at all.

The committee chairwoman, Dianne Feinstein, has said publicly — and this would be in response to the film Zero Dark Thirty — that these interrogation methods did not produce the intelligence that led the CIA to identify Osama Bin Laden’s last hiding place in Pakistan, and they objected to the film because, in their view, the film left viewers with the impression that, in fact, it was through the use of methods like waterboarding that the United States was able to glean the information that led them to Osama Bin Laden’s last hideout.

So the CIA lied to Congress? Quelle surprise. James Clapper did that on national TV and skated. So that Amendment to the Constitution has been confirmed. Where’s the Constitutional crisis? It’s this.

There are two issues here, one overt and one covert. The covert issue is, what will the full revelation about CIA torture do to the CIA, the spook state in general, overreach by the Executive branch in exercising its power, and the way public opinion views its government? In other words, will the Executive branch be found to be operating outside the Constitution, and will it be widely seen — by its citizens, the ruled — to be operating outside the Constitution. Two separate and dangerous outcomes, especially the second. After all, a state that doesn’t have the “consent of the governed” must fall or rule by force.

The overt issue is the Constitutional crisis that Holland’s headline refers to. It’s more narrow, but still potentially deadly. Back to Landay:

Landay: The question is whether the professional staff of the Senate Intelligence Committee, as the legal overseers of the CIA, had the legal and constitutional power to take these classified documents and walk them out of a highly guarded CIA facility to their own very high security offices up on Capitol Hill or that they exceeded their oversight powers in doing so. And this has been a constant theme, a constant tug of war in the history of our republic between the executive and the Congress over the powers of the Congress to oversee the executive and the ability of the Congress to obtain documents from the executive. … That’s what lies at the heart of this dispute, the ability or the power of congressional overseers to oversee what is supposed to be a very clandestine, secretive agency involved in espionage.

Because the CIA has been caught spying on Congress to keep Congress from performing its Constitutional function — and been called out by Congress for doing it — Congress must now assert itself or back down. Whichever path it chooses will change the Constitution.

At the end of this struggle one of two things will be true. Either Congressional oversight as a Constitutional power will be laid like a dead thing at the door of the Executive, to be swept away when they choose — or the power of the Executive to unilaterally exert itself will be dented for the first time since god first walked on the ocean of the world.

To end where we started, in the past Feinstein has rolled over and permitted every spook-state abuse that passed her desk. Is it really just personal pique — “Spy on thee, but not on me” — that caused her to provoke these questions? Because she has clearly provoked the undiscussable discussion. If the CIA truly violated federal law as she asserts, and in such a fundamental way, someone will have to lose.

Either way this goes, it’s a Constitutional crisis. Congress will assert itself at last, undoing the practice of the 20th and 21st centuries, or another unwritten Constitutional Amendment is about to drop into place.


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Gaius Publius is a professional writer living on the West Coast of the United States.

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