Balkinization  

Sunday, December 09, 2007

The Government Institution Most in Need of Comprehensive Reform

Marty Lederman

No, not the Office of Legal Counsel. The intelligence oversight apparatus. Yes, a large part of the problem is the particular Democrats who happen to be among the "Gang of Eight" and "Gang of Four." (To get a good sense of why the Senate Intelligence Committee will not get to the bottom of the latest scandal, just take a look at this lackluster performance by Jay Rockefeller yesterday on Face the Nation.) But even if we had the very best Dems on the Committee, there would still be virtually nothing they could do to address possible unlawful, or even just unwise, conduct by the intelligence agencies. (But cf. this post by Michael Froomkin on the Speech and Debate Clause.)

The pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:

1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers

2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself

3. and to provide such briefings after the conduct has commenced

4. in a highly classified setting

5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks

6. while assuring the legislators that it has been vetted by the lawyers and is legal

7. without showing the legislators the legal analysis supporting the conduct

8. without disclosing the legal arguments that cut the other way

9. without informing the legislators of any policy-based or legal dissent within the executive branch

10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct

11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.

The reaction from the Intel Commmittees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement.

* * * *

The question of how, exactly, to reform the intelligence oversight process is a very important and complex one -- but it's something that is rarely debated in public, and even more rarely contemplated at academic settings and in law schools. [UPDATE: I should have mentioned that such discussions and proposals are not entirely unheard of. See, most importantly, section 13.4 of the 9/11 Commission Report, and this related paper, published in the California Law Review, by Anne Joseph O'Connell of Boalt.]

Far be it for me to lay out a definitive framework for reform, but it might include some or most of the following components (this is just off the top of my head; please consider it a rough work-in-progress):

1. Strict requirements of notification before dubious conduct is undertaken (or in truly exigent circumstances, immediately thereafter). That's basically the law now, with respect to covert action and other aspects of intelligence activity, but the Executive branch regularly bends and flouts the requirements, and Congress does little or nothing to enforce them.

2. Notification and reporting to the entire Intelligence and Judiciary Committees -- the "Gang of Four" and "Gang of Eight" rules have proven to be a recipe for disaster. What are the "Gangs" supposed to do with the information, anyhow, if they can't even share it with their colleagues on the Committees? Can you imagine limiting the information within the executive branch to only the President and three or seven agency heads?

3. Significant changes in the classification standards and practices. At the very least, OLC legal opinions should be public, with appropriate redactions to protect sources and agency methods and technological capabilities that are genuinely unknown. Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified.

4. A serious, workable mechanism for congressional revelation and public oversight of suspected wrongdoing, including rules, which Congress might codify, to allow Congress to question particular classification decisions.

5. Meaningful recordkeeping and related requirements. There's no good reason that a law should not be enacted requiring that all interrogations be videotaped, for instance. Such a thorough record is good for intelligence; it's good for law enforcement and trials; it's good for oversight; and it deters unlawful conduct.

6. This might be the most important item: choosing Committee members, and counsel, who know as much about the relevant law governing the intelligence agencies as the relevant actors in the executive branch do. As it stands, there is a huge disparity in expertise and understanding. Congress cannot possibly provide sufficient oversight unless the people receiving the information are as conversant with the legal landscape as are the intelligence agencies and the lawyers in the Justice Department. And congressional counsel must be afforded access to the same information provided to the members of the Committees. Can you imagine if the professionals and the counsel within the executive branch were denied any knowledge of what goes on in the intelligence agencies? Well, it makes just as little sense on the legislative side, too.

7. The members of the Committees must be willing to use the leverage they have to obtain information that the executive branch refuses to share. In recent days, Senator Rockefeller, for instance, has been heard complaining that he has repeatedly asked the Administration for memos, documentation, etc., regarding the CIA interrogation program, only to be rebuffed at every turn. The committees are still seeking authorization to make public the OLC memos on interrogation and surveillance -- but no such permission is forthcoming. But yet Rockefeller, et al., then go ahead and push through the Military Commissions Act; they work to grant telecom immunity; they cooperate with the Administration on FISA "reform"; etc. At every turn, that is, they cooperate to give the Administration most of what it wants in terms of legislative amendments. They should, instead, insist that they will not even consider such proposals unless and until the Administration comes clean with all of the information and documentation that the Committee has been requesting for several years.

* * * *
Some or all of these suggestions may be terribly misguided -- I more or less jotted them down off the top of my head. And perhaps I've neglected to focus on several much more important items. One thing's for sure, though -- the current system is woefully inadequate, and cries out for serious reform proposals.

Comments:

Marty:

The pattern which you bemoan is exactly how the Executive should keep Congress informed of classified intelligence activities.

1) CIA and DIA sends serious professionals to brief Congress because serious professionals were placed in charge of the intelligence gathering against al Qaeda. Do you suggest sending in political hacks?

2) A small number of senior congressional leadership is briefed about our most secret intelligence matters because it makes it far less likely that the briefings will leak. The fact that the WP did not pick up on this for five years is proof of the wisdom of this operational security precaution.

3) Congress was briefed as the CIA was initiating its first coercive interrogation of Abu Zubaydah. "The Terrorist Watch" by Ronald Kessler (2007), page 48.

4) If one is going to discuss highly classified programs, one would naturally do it in a highly classified setting.

5) The coercive interrogation of Abu Zubaydah and later of KSM did in fact prevent the planned second wave of al Qaeda attacks on the United States and rolled up much of al Qaeda, preventing heaven knows how many more future attacks. "The Terrorist Watch" pages 49-60.

6) DOJ had in fact vetted and approved the coercive techniques months before they were used and Congress concurrently briefed. "The Terrorist Watch" page 48. According to your linked WP article, not a single briefed congressional leader objected to these interrogations.

7-9) How do you know whether the Congressional leaders were briefed on the legal basis for coercive interrogation of unlawful enemy combatants?

10-11) If the bipartisan group of congressional leaders thought the coercive interrogation program was at all improper or unlawful, NOTHING prevented them from acting on this information. There is not a court in the land which would allow Congress to be prosecuted for disclosing unlawful activities. In fact, none of the briefed congressional leadership even objected to the program and at least two questioned whether it went far enough. This is because they did not think it improper.

None of your suggested reforms would have made a difference here because the briefed bipartisan congressional leadership properly supported coercive interrogation to stop the planned second wave of al Qaeda attacks on the United States and save American lives. They saw nothing improper here.
 

Prof. Lederman:

Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified.

... unless it's embarrassing and/or criminal.

I don't think you have the proper dynamic; it's ppolitical and not legal or rational.

Cheers,
 

"The coercive interrogation of Abu Zubaydah and later of KSM did in fact prevent the planned second wave of al Qaeda attacks on the United States..."

"Objection, your honour, assumes fact not in evidence." (IOW, he's just making sh*te up).

Not to mention, the "usefulness"of a tactic is hardly a bellwether of its legality. Take bank robbery, for instance.

Cheers,
 

You know, you don't have power unless you use it. The Dem leadership should require their Committee members to exercise congressional power, and if they don't find someone who will.

It can't be repeated too often: these public servants swear to uphold their office and the Constitution. Although it is difficult to vote anyone out of office, the institutions themselves, or the party leaders could easily punish those who don't do their job.

It is really sick to see these high ranking leaders not playing their constitutional role, and sometimes that role is to be a hard ass just like Bush. At least Bush takes his powers seriously when they are threatened, so it couldn't be too hard.
 

The legal analysis here isn't particularly useful. I mean, it's basically a bunch of folks arguing about whether particular practices are "cruel, inhuman or degrading" or whether they "shock the conscience." There's no need for legal education to spout off on those topics, and lawyers certainly haven't any more insight into the questions than anyone else.

What's interesting is that, well, these fine folks in Congress didn't seem to have their consciences shocked, and didn't act as if they thought the practices were "cruel." So if one were interested in an empirical test of the meaning of the words, rather than in just pounding the table, one might be interested in these reactions, or lack thereof.

As for the suggestions: (5) is the sort of thing that only a lawyer could find useful. Remember, this is a "reform" the CIA and military are to adopt. The "good for intelligence" bit is doing most of the work, and not the "oversight" bit, I'm sure. I'm confident that the folks at the CIA would react positively to Marty's suggestion--they would only be a bit embarrassed they hadn't thought of it first.

I take it that suggestion (3) ("Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified) is a roundabout way of banning any covert action, since those actions inevitably involve "conduct that is revealed to persons outside the government"
 

I'm deeply skeptical here, intelligence oversight? Has anybody ever seen one, here or any other place? You think French, German, Russians or even British have one?

The fact is the nature of intelligence work is such that oversight has to be nominal in any country. You don't really want to dig into what they do. Intelligence work (and let's be frank, it's just spying) is out of necessity dirty, involves snooping, sniffing, braking the laws of other people (as they do ours), etc. There is nothing honorable about it. And usually produces nothing of value while leaving thousands of human lives destroyed in the process.

Read for example Marcus Wolf's final assessment (the guy was a highly successful head of the East German CIA), some pride in his accomplishments, but in retrospect he concluded the whole shebang really made no sense on his or anybody's else side. Just massive waste of money, time and effort producing mountains of worthless paper and reports nobody gives much damn about. And all those maimed, destroyed human lives.

What we have right now is probably the best that can be had under any circumstances, some semblance of oversight, some democratic appearances just for the sake of appearances nothing really meaningful, God forbid. The system is deeply rigged as it has to be and as it has been for decades, with people like Hoekstra, Roberts, Kyl, etc. making sure things run smoothly and that nobody messes with it too much. But at least give them credit for being sensibly discrete about it.

So let's stop pretend something can be done here.

---
(At the risk of sounding like a broken record, I was the target of Cointelpro people in this country (FBI) for many years so I'm relatively familiar with their methods, theirs and their proxies. Trust me the gulf the separates what committees in Washington hear and what is done by those people in the field couldn't be wider. Unreasonable to expect that the reality in foreign intelligence is any different.)
 

To be fair I think I need to add Rockefeller to the honor list above. Still unsure about Pelosi.
 

Intelligence is a prophet center that is often at a loss.
 

Professor Lederman

You should give some consideration to the congressional reform recommendations of the 9/11 Commission. The Commission described congressional oversight of intelligence as "dysfunctional" and said that the existing House and Senate intelligence committees lack both the power and the expertise needed to conduct adequate oversight. It recommended establishing either a joint committee or separate House and Senate committees with combined authorizing and appropriating powers. It further recommended establishing a non-partisan staff that would work for the entire committee, not individual members. The goal would be to establish a "relatively small group of members of Congress-- given time and reason to master the subject and the agencies, to conduct oversight of the intelligence establishment and be clearly accountable for their work."

Not surprisingly, these recommendations were largely ignored by Congress, even by many of those members who otherwise insisted that all of the Commission's recommendations be enacted.
 

Is it time for the "Dummies" book series to add one for "Intelligence"?
 

mis:

The 9/11 commission recommendations make eminent sense. If Congress wants its own legal and technical advice, they need to provide it for themselves. Also, the intelligence committees need to be far smaller and include the leadership of both houses of Congress.
 

The bottom line is that oversight is in the hands of the representatives and senators we vote into Congress. If you wish oversight which will prevent coercive interrogation with the associated lost intelligence, then you need to elect folks who actually believe like you do.

The Dem leadership has been caught lying to you all along about their shock, SHOCK at learning about CIA interrogations and detention facilities long after they were briefed on them.

If you are serious about your complaints, then stop voting for these people to conduct your oversight. If you keep voting for these people, then stop whining. Elections have consequences and you get what you elect.
 

I agree with Bart. Marty, it's terribly short-sighted and downright treasonous of you to live only in the DC area. You should also be living and voting in West Virginia, California, Texas, Alabama, and Florida. Until you do that, you have no right, NO RIGHT!, to complain about, advocate for the change of, discuss, or otherwise criticize our intelligence gathering apparatus and Congress' oversight thereof.

Elections have consequences, you know!!!111!1!
 

Fromkin's discussion of the Speech and Debate Clause is rather important and addresses a question I made in a recent thread.

Namely, why CAN'T ... surely if the matter is possibly criminal and such ... these matters be discussed by these people on the floor? The terms of the provision is rather absolute. Maybe, there is a reason.

But, sorry, I haven't seen it made.
 

Marty:

Your post made the Rush Limbaugh Show today, although I am unsure he understood your points. I am sure you are suitably impressed...

;^)
 

If you are serious about your complaints, then stop voting for these people to conduct your oversight. If you keep voting for these people, then stop whining. Elections have consequences and you get what you elect.

Well, yes, I believe some of these people will be facing serious primary challenges over their (in)actions. But how do you vote based on what people do in secret committees that doesn't get revealed until years later?
 

Joe- although the Speech or Debate Clause would protect a Member from prosecution for classified information released on the floor or in a committee hearing (so long as he or she did not perform any unprotected acts, like answering followup questions from the press), it would not protect the Member from consequences within the legislative body. For example, in the House Members are required to sign an oath that they will not release any classified information except as authorized by the House or its rules-- violating this could lead to an ethics investigation or cause them to lose their access to classified information.
 

Thomas:

The legal analysis here isn't particularly useful. I mean, it's basically a bunch of folks arguing about whether particular practices are "cruel, inhuman or degrading" or whether they "shock the conscience." There's no need for legal education to spout off on those topics, and lawyers certainly haven't any more insight into the questions than anyone else.

Why, you're 100% right. FWIW, IANAL and despite that, I regularly point out that even the "legal" analysis of our DBS 'lawyer' "Bart" is full'o'it.

We should be able to agree on what is beyond the pale, but maladministration hacks like "Bart" say: "But it works!!!! Who can argue with that?"

Cheers,
 

"Bart" DePalma:

The 9/11 commission recommendations make eminent sense. If Congress wants its own legal and technical advice, they need to provide it for themselves. Also, the intelligence committees need to be far smaller....

"Yes. Instead of telling four congresscritters, under pain of prosecution if they do anything except lose sleep, let's tell zero....."

Cheers,
 

"Bart":

The bottom line is that oversight is in the hands of the representatives and senators we vote into Congress. If you wish oversight which will prevent coercive interrogation with the associated lost intelligence, then you need to elect folks who actually believe like you do.

The Dem leadership has been caught lying to you all along about their shock, SHOCK at learning about CIA interrogations and detention facilities long after they were briefed on them.


Oh. So you agree that they're almost as complicit in this misbehavoiur (a/k/a breaking the law) as the maladministration that actually did it.

Cheers,
 

Your post made the Rush Limbaugh Show today, although I am unsure he understood your points....

Ummmm, let me guess.....

Cheers,
 

arne langsetmo said...

"Bart" DePalma: The 9/11 commission recommendations make eminent sense. If Congress wants its own legal and technical advice, they need to provide it for themselves. Also, the intelligence committees need to be far smaller....

"Yes. Instead of telling four congresscritters, under pain of prosecution if they do anything except lose sleep, let's tell zero....."


Sorry arne, I like congressional oversight of intelligence gathering. I just don't think there ought to be 20-30 members on these committees. The party leaders in each chamber of Congress plus 6 others would be more than sufficient.

When a critic of the TSP snarks that I would not support allowing Hillary "FBI Files" Clinton run the TSP, I reply that I will rely on the GOP members of the intelligence committee to keep an eye on her. I am unwilling to return to blinding the intelligence community simply because there are corrupt power chasers like Clinton who might be elected President. I would much rather have the two parties keep an eye on one another and check one another.

Oh. So you agree that they're almost as complicit in this misbehavoiur (a/k/a breaking the law) as the maladministration that actually did it.

We agree that the Dems who were briefed about the CIA detention and interrogation get equal credit or blame (depending on your viewpoint) for their tacit to active support of these programs.

However, I find this dose of common sense by the Dem leadership to be refreshing. I am not so afraid for the future of the Republic if the voters should give them power.

As an aside, does it tell you anything that, in real life, the leaders of both parties support all the actions that you find to be plainly beyond the pale? The Dems only lie to you about opposing these actions to get your vote and continue to get it even when they get caught lying to you.

BD: Your post made the Rush Limbaugh Show today, although I am unsure he understood your points....

Ummmm, let me guess.....


Rush can be a hoot and is pretty astute about politics, but he is generally ignorant about the law and plays the fool when he tries to imitate Nina Totenberg. Comedians (and certain engineers) should not play lawyers, even if they did stay in a Holiday Inn Express the night before.
 

You assume that it is good to have spies and secret police.
 

This comment has been removed by the author.
 

little:

Yes, it is damn good to have spies and special operations in this fight defending this country superbly. The fact that we have not been attacked in years is no accident.

The CIA must have had its fill of being shat upon by the clueless and the self righteous. Over the past couple weeks, a great deal of information is coming out of CIA on how they have been winning the war with al Qaeda.

Richard Kessler's book "The Terrorist Watch" is filled with stories about how the CIA and FBI dismantled al Qaeda root and branch. Scenes from that book are now being leaked to the news media.

John Kiriakou, the CIA agent who broke Abu Zubaydah, gave a lengthy interview to ABC News discussing how Zubaydah successfully resisted every other method, but broke in 35 seconds under waterboarding and gave up a large portion of the al Qaeda network and several pending attacks. I would love to see Mr. Kiriakou go before Congress and pull an Ollie North in front of sputtering Senators.

It is hard for the hypocrites on the Hill to rain on CIAs parade after being shamed into silence by the CIA leak that Congress was briefed and approved of the CIA's detention and interrogation policies, with Rockefeller asking whether what CIA was doing was enough.

There is no way this information campaign is not coordinated by the intelligence community.

Given all the folks who think that the peace we have been enjoying in the United States is an accident, it is long past time this story gets told in full context.
 

I appreciate MLS' reply and I sorta expected such limitations exist, but they only take you so far. For three reasons.

(1) As Glenn Greenwald (Salon) and probably others note, there are various ways to make it known w/o revealing classifed info that something is wrong. "I'm concerned, I can't say why exactly" etc. (combined w. refusal of voting for confirmation or funding of relevant matters)

(2) The privilege of seeing classified info is simply not enough to aid and abet a crime or seriously problematic matter ... if your clearance is lost for the greater good, e.g., of addressing torture, what is superior?

(3) The same applies to ethical violations, putting aside the questionable likilihood of being so charged if your actions involve stopping wrongdoing.

Some note a moral justification of breaking the rules and putting yourself at the mercy of after the fact procedures in times of emergency. An ethical violation or loss of privilege of viewing classified info is not even in that league.

Thus, I'm with those who are not convinced that they had no recourse. If we are soooo horrifed at what is happening here, they had the obligation to risk legislative sanction.
 

"Bart" DePalma:

Rush can be a hoot and is pretty astute about politics, ...

... like Goebbels, you mean?

... but he is generally ignorant about the law and plays the fool when he tries to imitate Nina Totenberg. Comedians (and certain engineers) should not play lawyers, even if they did stay in a Holiday Inn Express the night before.

Speaking of "fools", His Emanence Rush is not a "comedian". That you think so doesn't say much for your perspicacity.

As for "engineers" and "Holiday Inn Expresses", I'd just point out that it is not I that have repeatedly miscited both black-letter law and Supreme Court cases. I have pointed it out when a person claiming to be a lawyer here has done so. You can't point to a single instance when you have done the same to me. Care to discuss the "holding" in Brown II again? Or the "holding" in the Pentagon Papers case? Or when a SJ motion may be properly entertained?

Cheers,
 

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