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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54 Responses to “Report on CIA black sites & torture may provoke constitutional crisis”

  1. caphillprof says:

    Good luck with that, Ernest. Meanwhile we should celebrate this “marital spa” since it is the sine qua non of change

  2. AnthonyLook says:

    In one word—- CHENEY. That’s all this is about. Ever hear a Republican complain about over reach of power about Cheney? About how he ran rough shot with torture? Any Republicans clamoring about Cheney’s abuse of power? This will all boil down to CHENEY.

  3. Ford Prefect says:

    No doubt. However, I think the main reason she’s being so forceful about all this is her staff is being threatened with prison for doing their jobs. If she doesn’t protect them, then what beans may they have to spill on her?

    Her own corrupt behaviors are well known to the point everyone important around her is complicit in one way or another. Her staff is a different animal. Their continued loyalty may prove more important to her than what the White House has to say. That’s what I’m hoping, anyway.

  4. Silver_Witch says:

    Cheney will never die – they will just keep updating his software.

  5. Bill_Perdue says:

    She’ll be 85 in 2018 and may not run but in any case the fix is on. The Democrats and Republicans will nominate right wingers.

    Socialists and the anti-capitalist left will have lots of opportunities to use elections to agitate, educate and organize. The problem is getting on the ballot. I’ve worked on socialist and other election campaigns in Washington, Colorado, Utah and California and California has some of the most restrictive laws limiting election participation.

    That’s going to be offset from now by the demonstrated ability of leftists and labor party groups to get a bigger share of the vote and of course by the failure of Democrats and Republicans to end their wars and their huge unemployment problems.

  6. ronbo says:

    You can bet that DiFi’s electronic history is being scoured and “re-arranged” so that information that might change her mind will be brought to her attention.

  7. ronbo says:

    And… it’s a MAJOR reason DiFi must be defeated and replaced with a person who will sponsor and vote for actual democratic-voter supported policy.

    Note that I don’t say Democrat: because, that (D) isn’t magical and usually stands for “Deceptive Corporatist” AKA Clinton.

  8. Nathanael says:

    Worthy of note — constitutional crises are MUCH SLOWER than most people think. The big one, historically, the English Revolution, took place in slow motion over more than a decade. The French Revolution took years. The constitutional crisis which led to the Civil War took at least two decades, depending on how you measure.

  9. Nathanael says:

    Eventually even someone as slow as DiFi will figure out who committed treason (namely, James Clapper).

  10. Nathanael says:

    The last time this particular fight — legislature versus would-be King and his criminal spies — was won by the good guys was during the Glorious Revolution. A more famous example is Magna Carta. Intervening examples include the English Revolution.

  11. Max_1 says:

    You can bet the result will benefit her and not you…

  12. Max_1 says:

    Report: White House shielding CIA from Senate torture investigation

    According to some commentators…
    … It’s never when it happens on Obama’s watch.

    … As Commander in Chief, Obama doesn’t need to know what his military is doing on his watch.

  13. Max_1 says:

    Still never addressed the question.
    Avoidance behavior or what?

  14. Ernest says:

    She has not broken with it.

    This is just a marital spat.

    She and her husband are bought and paid for by the “New” Security State.

    She needs to be removed from office.

  15. Ernest says:

    You hit the nail on the head, brother.

  16. MyrddinWilt says:

    I don’t care what her reason is. What I care about is what she might do as a result.

    There are lots of unsavory types in politics. And I like the minor party leaders even less than the leaders of the major parties. The business is about outcomes.

  17. cole3244 says:

    many enlisted did horrible things and if they say they were obeying orders in the ucmj it states you do not have to obey an illegal order so that excuse is specious as is their conduct.

  18. MyrddinWilt says:

    There is the military and there is the military.

    I know plenty of folk who have a lot of sympathy for the enlisted soldier and the junior officers. I don’t know of anyone with much respect or sympathy for the generals as a group.

  19. MyrddinWilt says:

    I think the problem is likely to be that Cheney and Rumsfeld don’t live long enough. I can’t see either of them surviving another decade which is about what it will take before the winds have changed completely. Bush might well live long enough to be at risk.

    But once those three are dead there aren’t any Bushies that anyone has the slightest interest in protecting. Gonzalez, Yoo and the rest were all third rate hacks at best. None of them have been in demand after they left office. Gonzalez spent years trying to get a job and Yoo only got one because the President of Berkley bypassed all procedures to gift him a permanent position.

  20. Indigo says:

    What a curiously convoluted syntax you use.

  21. Silver_Witch says:

    OH Karmanot….you made me see that in my mind and now I am stuck with a picture of an “old-lady-thong” image. Yuck….

  22. 2karmanot says:

    DiFi is not a hypocrite—worse. She’s an authoritarian zealot two shades short of fascism—if that.

  23. 2karmanot says:

    Jeeze, what’s next?—-DiFi’s thong bomb.

  24. Silver_Witch says:

    Ahhh – thank you Gaius – I see now.

  25. MyrddinWilt says:

    Please, don’t leave out the attribution “Feinstein’s argument was that”

    And yes, that is pretty much what DiFi argues and what Hayden argues. Only they don’t mention that the entire oversight regime was imposed after blatant abuses.

  26. Drew2u says:

    Awesome, thanks guys!

  27. emjayay says:

    Yes, every federal government official ever belongs in jail. They are all exactly the same. Got that.

  28. cole3244 says:

    i am a vet & served in vn i find the military to be as appalling as any group in america although there are exceptions.

    this is what you get with an all voluntary military the same attitude and nothing from the other side of the argument.

    feinstein is upset because the cia interfered with her & other senate staff in their investigation, the elites protect each other but i have no faith they will protect anyone else inside or outside of our borders.

  29. Max_1 says:

    She broke with the National Security State NOT over your Rights, she’s already said “FUCK ‘EM”…
    … She breaks when they spied on her.

    She has her’s … She doesn’t care about you.
    Even when her Oath compels her to care about your Rights, she said FUCK YOUR RIGHTS!

  30. Max_1 says:

    So, are you saying that you are OK with hypocrites that posture over their Rights and fuck your’s…
    … As long as they are Democrats?

    Just trying to understand your angle here.

  31. Indigo says:

    That’s the real question. Is it the oil we’re not able to pipe through Afghanistan after all? or is it the Black Sea access port we don’t have? or is it even maybe the fracking wheat fields of North Dakota that will never again support wheat in our lifetimes due to the oil sludge contamination? or is (gasp!) the incredibly profitable poppy crops our military has on hand in Afghanistan? We won’t know in this lifetime.

  32. Silver_Witch says:

    Hi Drew – here are a few…

    In June she called Edward Snowden, the man who leaked this information, a “traitor” for revealing to Americans they were being spied on. She said it was treason to reveal what the federal government was doing to the public, remarking:

    “I don’t look at this as being a whistle-blower. I think it’s an act of treason. He took an oath — that oath is important. He violated the oath, he violated the law. It’s an act of treason in my view.”

    Then in October 2013 she said “Working in combination, the call-records database and other NSA programs have aided efforts by U.S. intelligence agencies to disrupt terrorism in the U.S. approximately a dozen times in recent years, according to the NSA. This summer, the agency disclosed that 54 terrorist events have been interrupted—including plots stopped and arrests made for support to terrorism.”

    She emphatically believes in spying on Americans and has supported it vocally for a long time….including removing your shoes at the airport….you know so we don’t get shoe or underwear bombed.

  33. Silver_Witch says:

    Agreed Bill she is completely and totally Right Wing, as is Hillary Clinton. President Obama has some centrist moments – but I believe we will see, with the passing of time, that all his actions served the Right.

  34. Silver_Witch says:

    Sadly Bill – I think we shall never live long enough to see Bush, Cheney, Rumsfeld, et al. ever be in any club other than that which they are in now…the Elite and the Abusers.

  35. Silver_Witch says:

    I have no fantasy that Cheney or his minions will be brought to justice – ever. That horse is no longer even running in the race. As I said, and I mean, we will likely never know what this is all meant to mean or what result will come of this until 20 years from now.

  36. Ford Prefect says:

    Let’s hope so. Of course, this is also a part of Obama’s legacy as well, since he did nothing to prevent a constitutional crisis in this case and has thusly enabled it. He is CIC after all and thusly responsible for the way those agencies behave:

    A leading US senator has said that President Obama knew of an “unprecedented action” taken by the CIA against the Senate intelligence committee, which has apparently prompted an inspector general’s inquiry at Langley.

    So Feinstein (D), is going up against the WH (also D). We’ll see how this pans out, but I’m guessing the WH will do something to soothe Feinstein’s feelings so she can return to SOP. If Brennan isn’t fired tout de suite, along with a few other people, then we’ll know this is just a tempest in a teapot.

    The administration could have avoided all this simply by not actively covering up the previous administration’s crimes and let the chips fall where they may. Instead he chose to make himself an accessory after the fact.

  37. caphillprof says:

    I think it is tremendous news that Diane Feinstein has broken with the National Security State. Change never comes in this country until the big boys are implicated. There is no democracy with secrecy. Even the secrecy in wartime was limited to immediate danger. This secrecy has mestastacized geometrically through the Cold War to an untenable explosion after 9/11. We have known of J. Edgar Hoover’s use of knowledge to create power to cow both the Executive and the Congress. We should have known that the CIA, NSA, etc. would do no less.

    Clearly the need for massive surveillance and secrecy is not to protect us but to allow the few to control governments and rig markets to amass great wealth.

    We assume that these folks are patriots at our peril.

  38. Bill_Perdue says:

    ‘Feinstein was the original Democratic cosponsor of a bill to extend the USA PATRIOT Act. In a December 2005 statement, Senator Feinstein stated, “I believe the Patriot Act is vital to the protection of the American people.”:(Wiki)

    She voted for NDAA. (… )

    “Feinstein promotes bill to strengthen NSA’s hand on warrantless searches – Fisa Improvements Act, advanced as surveillance reform, would make permanent loophole known as ‘backdoor search provision’.”…

  39. Drew2u says:

    Are there quotes of her saying the NSA spying on Americans is a good thing? I’d love to see a meme with those quotes, if they exist, contrasted with her now-outrage.

  40. Drew2u says:

    Rachel Maddow covered the murder of Todashev by the FBI quite extensively in her show. She hasn’t spoken about in in a couple months, at least, though.

  41. Bill_Perdue says:

    You commented that “I don’t think she is a hypocrite – I think she is honestly shocked that they would “spy” on her….after all she is not one of us, now is she” Some of the comments made in reply to mine don’t show up on Disqus for a day or two so I’ll reply to it here. Feinstein is the ultimate Democrat, rich, an elitist and totally right wing. The chickens are coming home to roost.

  42. caphillprof says:

    Now, children, if you cannot hope that the Congress can stare down the CIA, then you are foolish to think that Cheney & Bush2 will ever be brought to justice.

  43. 4th Turning says:

    First cousins. Worth reading/listening to. Paranoia justified but is this really the future…

    “If you believe the FBI’s account, then you must also believe this: If Waltham police had figured out who hacked three men to death on September 11, 2011, there’s a good chance we would not be talking about the Boston Marathon bombings. Tamerlan Tsarnaev and Ibragim Todashev might be alive and in jail. Dzhokhar Tsarnaev might be just another mop-headed, no-name stoner at UMass Dartmouth. There would be no One Fund. Krystle Campbell, Lu Lingzi, and Martin Richard would still be alive. Sean Collier would have graduated from the MIT police department to the Somerville Police Department by now. And for the friends and family of the three men who died in Waltham, perhaps their grief would not still be paired with such haunting”.


    “Last May, a weird story made the news: the FBI killed a guy in Florida who was loosely linked to the Boston Marathon bombings. He was shot seven times in his living room by a federal agent. What really happened? Why was the FBI even in that room with him? A reporter spent six months looking into it, and she found that the FBI was doing a bunch of things that never made the news. Her Boston Magazine story”.

  44. Silver_Witch says:

    100% agreed!!!! This is something for sure – however, we the people, will not know what the “look over there scandal” call is trying to divert our attention from until many years from now.

  45. Drew2u says:

    “the CIA and NSA operations do not pose a risk of abuse because they are under Senate and House oversight.”

    Is that why the Patriot Act and its shredding of the Constitution isn’t cause for alarm from Ms. Feinstein? Is that her justification?

  46. Silver_Witch says:

    Hi Gaius – excellent article – can you tell me what “or another unwritten Constitutional Amendment is about to drop into place” means. I am not very literate about these types of things and this piqued my interest. Thanks!!

  47. zerosumgame0005 says:

    The thing is DiFI may think this is the first CIA offense that has legal legs to be used to rein them in.

  48. Indigo says:

    I’ll wait for DiFi to demand that both Cheney and Bush2 be arrested for war crimes before I believe this is anything more than another media distraction.

  49. Bill_Perdue says:

    “Bush, Cheney and Rumsfeld will join the same club.” So will the Clintons, Obama and their cabinets. They are all guilty of engaging in illegal wars, war crimes and crimes against humanity.

  50. Bill_Perdue says:

    The report outlined in the Panetta memos has been suppressed for a long time. “Dianne Feinstein statement on CIA torture report ‘cover-up’ – Senate intelligence committee chair accuses CIA of intimidation in effort to block publication of controversial torture report

    If the Panetta Report and other information provided by LGBT/antiwar hero Chelsea Manning comes to light then there are ample reasons to indict the Bushes, Clintons and Obama for war crimes and crimes against humanity.

    Actually the evidence has been there all along but Bush2 refused to consider prosecuting Clinton1 for the mass murder of half a million children. Pelosi and other Democrats refused to impeach Bush2 for the invasions and occupations of Iraq and Afghanistan. Pelosi took it ‘off the table’. “House Democratic Leader Nancy Pelosi promised Wednesday that when her party takes over, the new majority will not attempt to remove President Bush from office, despite earlier pledges to the contrary from others in the caucus. “I have said it before and I will say it again: Impeachment is off the table,” Pelosi, D-Calif., said during a news conference.”

    Democrats refused to prosecute Bush because Obama is doing the same things in Lybia, Egypt, Yemen, Palestine, Afghanistan, Pakistan, and at US concentration camps at Guantanamo and Baghram air base.

  51. MyrddinWilt says:

    Feinstein’s position is elitist, not hypocritical. Feinstein’s argument was that the CIA and NSA operations do not pose a risk of abuse because they are under Senate and House oversight.

    The current situation blows a hole through Feinstein’s old argument because it proves that the oversight is ineffective and that abuse has occurred.

    This could be the 18 1/2 minute gap episode. Only the torture took place under George W. Bush. So what I think we are seeing is the Democrats creating a situation where they are ‘reluctantly’ forced to reveal the extent of criminal behavior by Republicans and CIA staff acting on their orders.

    Longstanding Supreme Court precedent holds that the Yoo memos are worthless except as toilet paper. Getting the blessing of a lawyer does not make an action less criminal. Shopping for a favorable opinion, as the Bush administration did, makes the situation worse. US Officials have been prosecuted for acting on the advice of their lawyers since the early 1800s.

    Anyone who was performing waterboarding knew that it was torture. The R2I program which was used was originally a training program used in the SAS, SBS and MI6 to train agents to resist TORTURE. They don’t use techniques that cause permanent harm in a training exercise but they are torture. According to the Bush administration claims the Chinese water torture (which does not cause permanent injury) is not torture.

    This is how the Bush legacy will gradually unravel. The process will take quite a while, possibly decades. But the statute of limitations for murder never runs out. Eventually all the papers will be published and those that are living will find they spend most of the rest of their lives in court rooms. Already Kissinger is unable to travel abroad lest he be arrested and charged with war crimes, Bush, Cheney and Rumsfeld will join the same club.

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