We Need Congress To Be The Boss

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We Need Congress To Be The Boss

Published in the Maryland Daily Record on May 6, 2014

I haven’t read it, and you haven’t read it, but now we kind of know what the 6000+-page December 2012 Senate Select Committee on Intelligence report says: that the CIA’s War on Terror-era torture-and-rendition program brought no actionable intelligence to us, and was far more brutal than previously admitted. It says that the CIA misled Congress, the Justice Department, and President Bush. The White House has been in possession of the report for over a year. On April 7, Senator Dianne Feinstein, the Chair, sent the White House the report’s 480-page Executive Summary, pointedly asking the White House, not the CIA, to “declassify” the Summary, so it can be released to the public.

Think about that fact for a moment.

Why should the Executive Branch have anything to say about the contents or release of any report authored by the Legislative Branch? These are coordinate branches of government, and the report’s issuance was an exercise of Congressional power dead center within its constitutional responsibilities.

The Executive Red Pen

The Congressional oversight power is one of the most strongly established legislative prerogatives; hearings into Executive Branch functioning date back all the way to 1791.[1] The Supreme Court held in 1957 that: “The power of the Congress to conduct investigations is inherent in the legislative process.” Inherent in that power is the power to compel members of the Executive Branch to testify and to disclose documents concerning Executive Branch activities. Clearly, any report concerning a key activity of an Executive agency (and the torture-and-rendition program was certainly a crucial activity for some years) would relate to matters on which Congress would inevitably legislate, so this investigation and its resulting report were firmly rooted in Congress’ constitutional prerogatives.

Then what business does the Executive have to be vetting it for public consumption? (Even if – which is more than we know yet – it turns out to be the White House rather than the CIA in charge of declassifying documents that do not flatter the CIA.)

Set aside the oddity of the Executive red pen on a Congressional finished product; the freedom even to research the document was at best incomplete. The reality is that on Capitol Hill there is a long tradition of coöptation by the CIA. As Ivan Eland, then an investigator with the House Committee on Government Reform, wrote back in 2001, while Congressional committees with oversight over the CIA “claim the right to hire their staff members over the security objections of the [CIA] but in practice it rarely occurs” and that they are “willing to restrict the scope of their requests for classified information or limit the manner in which it is handled.” That happened here. The Select Committee agreed to a regimen where Capitol Hill investigators could only examine documents at CIA facilities. Eventually this access was also permitted at a secure facility on Capitol Hill.

Trying a Clawback

But not trusting even these arguably unconstitutional protections, the CIA still held back something critical; a large internal review document known as the Panetta Report that admitted wrongdoing which the agency was still disavowing before Congress. Held back though it was, somehow the Panetta Report made its way into the investigators’ files. That reportedly prompted the CIA to try clawing back the document by what Senator Feinstein called “hacking” Congressional computers. The effort was only partly successful; the Committee still possesses copies of the Panetta Report. The CIA then went to the Justice Department demanding prosecution of someone, presumably staffers, for illegal possession of the document.

And that is something else to think about. To paraphrase the most notorious phrase in the Dredd Scott case wildly out of context: What CIA secrecy boundaries is Congress constitutionally bound to respect? The CIA after all is Congress’s creation. Congress established the CIA in 1947; Congress establishes the CIA’s budget and (supposedly) dictates the parameters of its activities. But it goes deeper. The CIA can maintain great secrecy from us citizens, for instance under the Public Information Act, and it is granted near-immunity from judicial oversight. But that is only justifiable (if at all) because Congressional oversight theoretically provides a check and balance. How, in a constitutional scheme where everyone else is kept out, can Congress be told that there is anything, anything at all, about the CIA that it can learn only by means that expose its staffers to prosecution?

Executive Privilege vs. Congressional Investigatory Power

The CIA’s response to such questions has been to characterize the Panetta Report as “pre-decisional” and “deliberative,” the kind of thing that has been routinely shielded from Freedom of Information Act disclosure and often from prosecutorial subpoenas by executive privilege. But a Congressional subpoena is not a FOIA request or a DOJ subpoena. As already noted, Congressional subpoenas stem directly from the legislative power, central to our constitutional design, unlike FOIA requests. Also unlike judicial-branch subpoenas, legislative-branch subpoenas have never been tested in the Supreme Court against claims of executive privilege.[2]

The Executive may be spoiling to have that fight, judging from the actions of the last two administrations. The George W. Bush administration defied Congressional subpoenas several times based on executive privileges claims. And the Obama administration followed suit by invoking executive privilege against a Congressional subpoena in 2012, in connection with Congress’ investigation into the “Fast and Furious” scandal.

The values that executive privilege exists to foster (principally giving senior Executive Branch officials the benefit of receiving advice unconstrained by the fear of later public exposure and opprobrium) would still exist were the document seekers Congressional investigators rather than curious members of the public proceeding under FOIA. But it could equally be argued that access to the off-the-record remarks made in the Executive Branch is precisely what Congress needs in order best to do its constitutional job. In this very case, hearing what CIA bosses were saying when they thought no one is listening seems to have been a great deal more useful to the legislative process and hence to the public than the sanitized version of the facts the CIA tried to fob Congress off with.

CIA Crimes?

Meanwhile, Congress has gone to the Justice Department as well. To quote Senator Feinstein: “Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

I will leave to others the political aspects of this fight and the technicalities of the law the CIA may have broken. But we should all be concerned about the constitutional aspects that Senator Feinstein mentioned in passing. For most Executive agencies, there are multiple forms of accountability outside the Executive itself: Congress, the courts, the press. The CIA is almost unburdened by any of that – except for its accountability to Congress. Which makes it all the more vital that Congress be allowed to keep an eye on the Agency, and not to have the Agency controlling Congress’ control of the Agency.

The CIA operates in stealth; it is associated with some of the worst abuses of power in recent American history, including assassinations, coups, and torture; it has military capabilities. Congress needs to be firmly in control of its relationship with such an agency. The Constitution demands no less.

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[1]. The House reportedly convened a special committee in 1791 to investigate the U.S. Army’s defeat by Native American forces in the Battle of the Wabash. Brian D. Feinstein, Avoiding Oversight: Legislator Preferences and Congressional Monitoring of the Administrative State, 8 J.L. Econ. & Pol’y 23, 43 (2011), citing M. Nelson McGeary, Congressional Investigations: Historical Development, 18 U. Chi. L. Rev. 425, 425 (1951).

[2]. Compare the Watergate-era case about executive privilege and a special prosecutor’s subpoena: U.S. v. Nixon (1974), which did allow the subpoena, but using language that could well support the CIA were it to contest a Congressional subpoena. Quoting United States v. Reynolds (1953), the Nixon Court stated: “It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” Of course the history of the likely CIA wrongdoing here probably is tied up with “military matters” and “national security.” To allow those considerations, however, to end a Congressional quest for this material would be tantamount to saying that the Congressional investigatory power stops whenever an agency invokes the national security shibboleth.

Copyright (c) Jack L. B. Gohn

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