Balkinization  

Wednesday, July 08, 2009

A further disappointment from the Obama Administration

Sandy Levinson

The New York Times has posted a very interesting story headlined "Democrats Say CIA Deceived Congress for Years," based on testimony of Leon Panetta before the House Intelligence Committee. That is not the "disappointment" mentioned in my title; rather, Director Panetta deserves credit for beginning to throw some light on CIA perfidy, in the service of the Bush Administration, during the past several years. Rather, what is disappointing is the following paragraph:


In a related development, President Obama threatened to veto the pending Intelligence Authorization Bill if it included a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight — the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees. A White House statement released on Wednesday said the proposed expansion of briefings would undermine “a long tradition spanning decades of comity between the branches regarding intelligence matters.” Democrats have complained that under President George W. Bush, entire programs were hidden from most committee members for years.
This exemplifies why I have become exceedingly dubious about the ability of the President, including this one, to veto legislation simply on policy, rather than on constitutional, grounds. This veto threat is nothing more than an attempt to maintain Executive Branch prerogatives and to limit the flow of information to members of the House (or Senate) with the greatest understanding of what may be at stake. If we think that members of the Intelligence Committee are just too untrustworthy, then this is one more ominous sign of the threat to democracy implicated in the modern national security/surveillance state. The "long tradition" cannot, of course, go back more than 62 years, when the CIA was founded, and it primarily signifies the acquiescence of meek legislators to Executive Branch adventurism. From my perspective, this is just another example of "delegation run riot" and the institutional structure of our "constitutional dictatorship." It also, alas, serves as yet one more example of the proposition that Madison was right at least about Presidents, that all of them, regardless of what they say during campaigns, quickly attach their own "ambition" to that of the Executive Branch.

It is especially striking that the President is willing step out in front and to threaten a veto in order to protect CIA secrecy even from the elected (and presumably trustworthy) representatives of the people at the same time he so obviously fails to exercise even a modicum of leadership on getting rid of "don't ask, don't tell" in order to assure that the armed forces will be able to draw on the talents of all Americans who wish to serve their country. It's still morning in America for me, but I'm seeing more clouds and less of the clear blue sky that I had hoped for.



Comments:

People were concerned even before he became President that Obama was too conservative in certain ways, and this would include agreeing too much with the current view that the modern executive deserves more power than is warranted by policy or constitutional principle.

Anyway, a few familiar names on this letter.
 

Hey Sandy,

Good on you for calling out BHO on this latest example of his constitutional mendacity. Johnny 'Torture' Yoo's criticisms are valid here too: there is no reason for the executive branch to voluntarily give up power until the legislative branch reaches out to take it away.

If you haven't done so already, it's probably worth your while to check out what Marcy Wheeler has already said about this:

http://emptywheel.firedoglake.com/2009/07/08/silvestre-reyes-cia-lied-to-congress/

cheerio
 

A problem with "Separation of Powers" is who's in charge of each of the "Powers." The "Strong Executive" was a problem with Bush/Cheney because of misuse. Obama/Biden should avoid misuse. Congress should not take a back seat to the Executive.
 

In a related development, President Obama threatened to veto the pending Intelligence Authorization Bill if it included a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight — the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees...

This veto threat is nothing more than an attempt to maintain Executive Branch prerogatives and to limit the flow of information to members of the House (or Senate) with the greatest understanding of what may be at stake. If we think that members of the Intelligence Committee are just too untrustworthy, then this is one more ominous sign of the threat to democracy implicated in the modern national security/surveillance state.


Limiting knowledge of top secret operations to the fewest possible people is basic operational security because most folks are bad about keeping secrets and inadvertently disclose information.

This is not some nefarious executive plot. The vast majority of the intelligence community are also not read in on covert operations.

Reading in eight members of the bipartisan leadership is more than enough disclosure for oversight purposes.

As to the subject of the NYT article, we have no idea what Panetta actually told the House Intelligence Committee, only the spin placed on that testimony by the Committee's Dems.

The spin is obviously meant to run interference for Speaker Pelosi. Pelosi was caught in a series of lies as to whether she was briefed on CIA interrogation and then lashed out with a red herring smear that CIA lied to her on an ongoing basis. The GOP called her on the smear and demanded that she disclose the alleged CIA lies. Pelosi immediately left the country. The House Intelligence Committee Dems are plainly running interference for her because the NYT article is derived from a letter from the Dems to Pelosi's lead GOP critic.

Even if you take the letter at face value, it reveals Pelosi's red herring smear to be yet another lie. According to the letter, Panetta only admitted that CIA actually lied to Congress a whopping single time in eight years and there is no allegation that alleged lie was to Pelosi.
 

Here we go again as our resident LLB" unpacks his ever ready Backpack of Lies with his spin on "alleged" spin. Recall that Bush/Cheney and its CIA at times did not include the full Gang of Eight in briefings. Of course the safest way to keep a secret is to tell no one. But then there is no openness and thus no accountability.
 

Even though Ben Franklin warned us so famously not to trade liberty for safety, and though liberties are well woven into our Constitution, demagogues will always yell for safety. After all, Franklin had to make the case in freedom-loving Pennsylvania as early as 1775.

Authoritarian demagogues always have an easy time of demonizing opponents. What is more fun, or profitable, than mongering fear? Recall how effective Joe McCarthy was, and for how long.

And who mongers fear in freedom-loving America in 2009? No one more than Rupert Murdoch, billionaire owner of News Corp. When Obama asked for funds to close Guantanamo, Murdoch's Fox (and others) fomented fear so effectively that the request failed in the US Senate 90-6.

NInety to six! Because Murdoch repeatedly warned us that Obama was bringing terrorists into our backyards!

I don't worry about Obama. I worry about powerful, demagogic fearmongers. I worry about Rupert Murdoch.
 

Bart DePalma said:

Reading in eight members of the bipartisan leadership is more than enough disclosure for oversight purposes.


History, especially the past eight years, shows that you are wrong. Members of the Intelligence committees cannot do their job if they do not know what is going on.


If nothing else, disclosing to only a few people results in “he said-she said” situations such as we have now when the feces hits the fan.
 

Hank Gillette said...

Bart DePalma said: Reading in eight members of the bipartisan leadership is more than enough disclosure for oversight purposes.

History, especially the past eight years, shows that you are wrong. Members of the Intelligence committees cannot do their job if they do not know what is going on.


The fact that the Gang of Eight without exception tacitly or actively supported Bush Administration covert policies speaks far more for the legality and wisdom of those policies rather than a failure of the system of limiting briefings on covert operations to eight of the bipartisan leadership.

The system that is arguably broken is political, rather than legal. Pelosi and the other couple dozen Dems who were briefed on these policies are lying to you about their support with this pathetic meme that they were mislead as if they were a group of potted plants. Yet, you Dems keep casting your ballots for these liars. You will not get real change until you stop voting for folks who support policies which you oppose merely because they have a (d) following their names on the ballot.

Specter betrayed the GOP repeatedly and we ran primary challenges at him until he left to make his Democrat status official. Good riddens. Now we can run a real conservative who genuinely supports our policies. You Dems might want to take a page from our book. Start with Pelosi. If you cannot elect a leftist who genuinely supports your views from the Speaker's far left district, your views cannot win anywhere.
 

Once again our resident LLB* equates his Backpack of Lies opinions with "fact":

"The fact that the Gang of Eight without exception tacitly or actively supported Bush Administration covert policies . . . ."

But merely stating this as "fact" does not make it "fact" without cites for proof. And at times there were less than eight let in on the Bush/Cheney CIA secrets.
 

Shag:

The briefed GOP members have repeatedly asserted without dispute that many of their Dem colleagues actively supported Bush covert policies and asked if more could be done.

At the very least, the Dems charged with oversight tacitly supported the policies by declining to oppose or prosecute them.

If you wish to keep your hands firmly covering your ears and keep yelling "I can't hear you" while casting ballots to reelect Dems who repeatedly lie to you, that is your privilege. From my POV, I would rather have Dems who support my positions and lie to you than Dems who actually support your positions.
 

Even though Ben Franklin warned us so famously not to trade liberty for safety, and though liberties are well woven into our Constitution, demagogues will always yell for safety. After all, Franklin had to make the case in freedom-loving Pennsylvania as early as 1775.

Once again: Franklin never made such a warning. What he warned against was trading essential liberty for temporary security.
 

A CRS report suggests the "long tradition" as applied here goes back less than 30 years, and then only in narrow situations, situations that Panetta and Dennis Blair was overused.

The new rule would let the intel committee decide if such exceptions are warranted in a given case.
 

Our resident LLB* states:

"The briefed GOP members have repeatedly asserted without dispute that many of their Dem colleagues actively supported Bush covert policies and asked if more could be done."

So now it's "many" Dems, not "all," who may have been briefed, at least based upon the "briefed GOP members" whom our resident LLB* fervently believes, presumably merely because they are GOP-ers. Once again it's "He said/She said." As for repeatedly lying, that was the forte of Bush/Cheney demonstrated by moving their lips. That's why our resident LLB* does not want there to be accountability on the part of Bush/Cheney for just about everything their administration did or didn't do, e.g., torture, WMD, whatever.
 

This comment has been removed by the author.
 

Joe:

A CRS report suggests the "long tradition" as applied here goes back less than 30 years, and then only in narrow situations, situations that Panetta and Dennis Blair was overused.

The congressional intelligence committees (1976) are only four years older than the Gang of Eight limiting legislation (1980). Consequently, the Gang of Eight limitation has been the practice for nearly the entire existence of the intelligence committees.

Congress probably does not want to engage in this turf marking contest over how many Congress critters get to be read in on executive covert operations. Even if this legislation was enacted over a veto, President Obama could very well still tell Congress to take a hike and the courts would most likely treat this as a political issue for the elected branches to resolve.

After all, Presidents have been expansively interpreting the Gang of Eight provision and Congress has been essentially powerless to do anything about it because of the underlying threat that the President will simply deny all briefings.
 

Bart DePalma said:

The fact that the Gang of Eight without exception tacitly or actively supported Bush Administration covert policies speaks far more for the legality and wisdom of those policies rather than a failure of the system of limiting briefings on covert operations to eight of the bipartisan leadership.

That simply is not true. Senator Rockefeller had concerns about NSA’s warrantless wire-tapping program, but was told that he could not consult with anyone about it, so he was left to write an ineffectual letter to Cheney.

The fact is, the few members of Congress who were briefed were intimidated into going along because of the threat of being blamed if there were further terrorist attacks.

That doesn’t speak well for those members of Congress, but it is much easier to intimidate a smaller number of people. If the CIA had been forced to brief the full committees there might have been someone with the courage to speak up.
 

Hank Gillette said...

Bart DePalma said: The fact that the Gang of Eight without exception tacitly or actively supported Bush Administration covert policies speaks far more for the legality and wisdom of those policies rather than a failure of the system of limiting briefings on covert operations to eight of the bipartisan leadership.

That simply is not true. Senator Rockefeller had concerns about NSA’s warrantless wire-tapping program, but was told that he could not consult with anyone about it, so he was left to write an ineffectual letter to Cheney.


Stuff and nonsense. Rockefeller could have taken to the floor of the Senate after his briefings and disclosed every Bush covert policy he thought was illegal and faced no sanction whatsoever. The same was true for the other couple dozen Dems briefed on Bush covert programs.

Why do you and Shag insist on defending to the last Dems who routinely betrayed your trust for years?
 

Sure, Bart, any senator whatsoever could have gone on the floor of the Senate and divulged anything and everything, and faced no sanction.

I'm guessing a movement to censure would have been immediately forthcoming, and it would have passed overwhelmingly. I'm basing that on the motion in re MoveOn.org, for example.

It must be that your messages are leaking into our universe through a wormhole from some alternate universe, where politicians are courageous, impervious to criticism and the blandishments of money, and totally uncaring whether they are re-elected.

We could only wish that we, too, inhabited such a place.
 

Let's turn around our resident LLB*'s question to Hank (and me) to challenge his allegiance from 1/20/01 - 1/2009:

"Why do you insist on defending to the last Bush/Cheney and their CIA who routinely betrayed your trust for years?"

And now our resident LLB* expands the Gang of Eight with this new crapola from his Backpack of Lies:

"The same [as Sen. Rockefeller] was true for the other couple dozen Dems briefed on Bush covert programs."

At least we get an admission of "covert programs" for Bush/Cheney. But now its up to at least 24 Dems being briefed. We find our resident LLB* behind the [Gang of] Eight Ball as we chalk our cue . . . and call . . . right pocket.
 

C2H50H said...

Sure, Bart, any senator whatsoever could have gone on the floor of the Senate and divulged anything and everything, and faced no sanction.

I'm guessing a movement to censure would have been immediately forthcoming, and it would have passed overwhelmingly. I'm basing that on the motion in re MoveOn.org, for example.


What would be the basis for the motion to censure if the disclosed policy was unlawful? Even if one was filed, how does such a motion come to the floor for a vote given the almost certain Dem filibuster?
 

Bart,

Ooooh, in your universe, there needs to be a rational basis for Congressional actions? If you can, from your universe, you should look at the episode here that occurred a few years ago with Terri Schiavo in this universe.

Or just read about the actions of Congress over here for any period in the last 30 years.

You think Democrats would filibuster to protect a Senator who divulged "secret" information? Wow, things are different over there. Fascinating.
 

Al Franken just got his gig after the Coleman lamp finally wicked out and our resident LLB* now curses the Dems (GOP darkness?):

" . . . given the almost certain Dem filibuster?"

I thought getting to 60 could avoid a filibuster or at least a filegumbo by our resident Jumbo-Liar.
 

Meanwhile, apropos a past thread, NY appears to be on the way to addressing their current gridlock without amendment to the state constitution.
 

The New York Times has posted a very interesting story headlined "Democrats Say CIA Deceived Congress for Years," based on testimony of Leon Panetta before the House Intelligence Committee. That is not the "disappointment" mentioned in my title; rather, Director Panetta deserves credit for beginning to throw some light on CIA perfidy...

What the NYT left out was that the Dems' letter to Panetta was demanding that he retract a public statement that CIA does not lie to Congress citing testimony by Panetta describing a short lived CIA program that CIA did not brief Congress about, which itself is not a lie.

Right now we have the Dem Speaker and 7 Dems on the intelligence committee (but not Panetta) accusing CIA of committing criminal acts.

OK, either refer your evidence to Justice with a request to file criminal charges or apologize for your slanders and resign your offices immediately.
 

Fox News is reporting that GOP members of the Intelligence Committee disagree that Panetta admitted that the CIA lied and say they have since spoken with Panetta who believes his fellow Dems are misrepresenting what he said.

Panetta's conspicuous silence to avoid embarrassing Committee Dems speaks volumes.
 

Our resident LLB* is a Lamont Cranston?

"Panetta's conspicuous silence to avoid embarrassing Committee Dems speaks volumes."

Our voluble resident LLB* interprets silence by turning up the volume on his Backpack of Lies.

By the Bybee, have the GOP members of the Intelligence Committee put their denials in writing and signed? Or does Fox have its own Backpack of Lies?
 

What statute is violated if someone from the CIA lies in a briefing?
 

CIA spokesman George Little told the Washington Independent late Wednesday that the claim that Panetta admitted his agency has misled Congress is “completely wrong.” He added, “Director Panetta stands by his May 15 statement.”

Panetta is calling the Dem Gang of Seven in the House Intelligence Committee liars.

Once again, refer your evidence of CIA lying to Justice or apologize for your slanders and resign in disgrace.

These people are beneath contempt.
 

Once again, refer your evidence of CIA lying to Justice or apologize for your slanders and resign in disgrace.

# posted by Bart DePalma : 1:33 PM



Baghdad, speaking of being beneath contempt, how's that search for Iraq's huge stockpiles of WMD coming along?
 

Current and former administration officials familiar with the program said it was not directly related to previously disclosed high-priority programs such as detainee interrogations or the warrantless surveillance of suspected terrorists on U.S. soil. It was a intelligence-collection activity run by the CIA's Counterterrorism Center, officials said. It was not a covert action, which by law would have required a presidential finding and a report to Congress.

"This characterization of something that began in 2001 and continued uninterrupted for eight years is just wrong. Honest men would question that characterization. It was more off and on," said a former top Bush administration official, who spoke on the condition of anonymity because of the classified nature of the issue.

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/09/AR2009070903017.html
 

Here's what our resident LLB* quoted without identifying the source:

"CIA spokesman George Little told the Washington Independent late Wednesday that the claim that Panetta admitted his agency has misled Congress is 'completely wrong.' He added, 'Director Panetta stands by his May 15 statement.'”

Then he says:

"Panetta is calling the Dem Gang of Seven in the House Intelligence Committee liars. But our resident LLB* fails to cite such a statement by Panetta made AFTER the Reyes et al letter. So perhaps it is George "Chicken" Little making the liar call.

Then in a subsequent comment, our resident LLB* says:

"Current and former administration officials familiar with the program . . . " without identifying them. How convenient once again.

And he follows with this quote:

"This characterization of something that began in 2001 and continued uninterrupted for eight years is just wrong. Honest men would question that characterization. It was more off and on,'' said a former top Bush administration official, who spoke on the condition of anonymity because of the classified nature of the issue."

Whoever this high former Bush official is, he/she avoid using the work "liar." Rather, he/she says: "Honest men would question that characterization." My, my, what doublespeak. But strangely, he/she says: "It was more off and on." In a courtroom that would give rise to a lot of cross-examination. But this issue is "classified" - so we have to await some sort of a further inquiry.

Our resident LLB* seems to be digging a deeper hole for Bush/Cheney and its CIA for what went on for eight years. With friends like our resident LLB", Bush/Cheney don't need an enema. But someday they will come clean.

I chuckle thinking of "It was more off and on."
 

So I come back from a vacation [well, a family visit] to find mostly the same old same old - except that Prof Levinson has maligned my ancestor/relative Joseph Story in another post and no one came to his defense!

No, Prigg was nowhere near as 'egregious' as Dred Scott. Geesh.
 

Forgive me in advance for displaying my naivete, but:

"It was not a covert action"

"...former top Bush administration official, who spoke on the condition of anonymity because of the classified nature of the issue."

Contradictions confuse me. It's probably my non-conservative brain.

In addition, what kind of non-covert action is it that the CIA hides from Congress?

And another (anonymous, natch) guy says it was "sensitive".

I think Panetta has his work cut out for him -- it looks to me like the CIA is in some kind of fugue.
 

Dan Froomkin recently wrote "I now consider [Obama] a willing and active partner in the cover-up of the Bush torture legacy."

I agree.

Yes, I am disappointed.

This is not what I voted for.
 

C2H50H said...

Forgive me in advance for displaying my naivete, but:

"It was not a covert action"

"...former top Bush administration official, who spoke on the condition of anonymity because of the classified nature of the issue."

Contradictions confuse me. It's probably my non-conservative brain.


CRS drafted an analysis of what constitutes a "covert action" under statute here.

A covert action is not every classified activity conducted by CIA and expressly excludes passive intelligence gathering. Rather a covert action is an an active operation against an enemy such as sending CIA agents into Iraq to enlist the Kurdish Peshmerga into operations against Saddam during the liberation of Iraq.

The very brief description given in the paper reminds me of the DoD's Able Danger program during the Clinton Administration data mining publicly available information on the internet looking for patterns consistent with terrorist activity.
 

This comment has been removed by the author.
 

What is or is not a covert action is important but should not distract the need for transparency and accountability regarding actions taken by Bush/Cheney 1/20/01-1/20/09 and by Obama/Biden post 1/20/09 relative to this post of Sandy, the 7/9/09 post of Deborah Pearstein and the two 7/10/09 posts of Jack Balkin. Panetta, a good man, may be between the rock and hard place. But he should consider what the recently deceased Robert McNamara went through during and after his years as Sec. of Defense under Kennedy and Johnson. Panetta from his days in Congress knows the "dance" that the Executive puts Congress through. Loyalty can be a problem. But it is the nation's concerns that should be paramount. I watched Charlie Rose the other day on McNamara, with extensive clips of Rose's interviews of him in 1995 and 2003. I had read extensive obits of McNamara that reminded me of what went on in the '60s in Vietnam, and how it took Nixon's "plan" close to 7 years AFTER Nixon's '68 election to get the US out of Vietnam. Perhaps if McNamara had less loyalty to Presidents he served, our nation might have learned lessons of value concerning Afghanistan and Iraq following 9/11. Cover up of action, whether covert or not, is usually eventually exposed. Panetta has some hard choices to make.
 

This July 9, 2009, Newsweek article by Mark Hosenball and Michael Isikoff titled "Watch Who You're Calling a Liar" seems to be the source of some of the quotes provided by our resident LLB*. Read the full article:

http://www.newsweek.com/id/205958

Then judge whether our resident LLB* was pulling quotes out of context.
 

Here's a graf from the Newsweek article referred to in my preceding comment:

"Paul Gimigliano, a CIA spokesman, said Panetta has nothing to correct: 'Director Panetta took the initiative to raise the issue with the Hill. He did so promptly and clearly, as the oversight committees themselves recognize. He stands by his statement that it is neither the policy nor the practice of the CIA to mislead Congress. He believes, as his actions show, in the importance of a candid dialogue with Congress.'"

We can perhaps agree with Panetta's statement that it is neither the policy nor the practice of the CIA to mislead Congress. But what was Congress actually told by the CIA during Bush/Cheney? Panetta has ordered a CIA review AFTER the allegations of Reyes et al. Keep in mind that Panetta was NOT at the CIA during the subject CIA briefings of Congress. He has to rely upon CIA personnel for his information. Panetta should apply a little of Pres. Reagan's "trust but verify."
 

My e-mail reply to Jack's related post above:

Jack:

You posted: "According to the report, the domestic surveillance program did little good and other legal methods were far more effective in obtaining valuable intelligence."

The main complaint by the Justice IG was that only three Justice attorneys were read in on the basic means and methods of the terrorist surveillance program and even those briefings were insufficient.

Has it occurred to you that the Bush Administration almost certainly did not read Justice in on any of the intelligence gathered by the Terrorist Surveillance program concerning foreign al Qeada since the Administration properly considered foreign al Qaeda a military and not a civilian criminal justice matter? The only disclosed intelligence that concerned an American tried by Justice was the Brooklyn Bridge plot. Therefore, the Justice IG has no idea the quantity or quality of the intelligence gathered by the TSP.

This is similar to the FBI claims that CIA enhanced interrogation did not work after FBI admitted that it raised a chinese wall between it and CIA concerning the results of those interrogations to avoid fruit of the poisonous tree problems if FBI was later asked to interrogate an al Qaeda prisoner for criminal prosecution.

This is part of a bureaucratic turf battle. FBI and Justice consider terrorism to be a criminal justice matter and part of their turf. The Bush Administration considered it a war to be fought by the military and the intelligence community. It is wise to view the public statements of both sides in that context rather than credulously accepting them at face value.

 

Interesting take on this. But really, can you trust Congress? Most members are short sighted and will sacrifice national security for political advantage (see: Pelosi, Nancy).

It's probably moot at this point. I don't think the CIA is going to work very hard for the current administration.
 

booger says:

" I don't think the CIA is going to work very hard for the current administration."

If this is the case, Panetta has some serious decisions to make.
 

Our resident LLB* states this in his Email to Jack Balkin:

" . . . rather than credulously accepting them at face value."

A little sauce for the goose, our resident LLB*, who has since been 1/20/01 credulously accepting of Bush/Cheney and their Administration at face value.
 

Prof. Levinson may be inspired to post on James MacGregor Burns' Boston Globe OpEd today titled "Judicial supremacy and the rise of the high court" concerning judicial review, judicial supremacy, a proposed amendment on judicial review and perhaps a defiance by the Executive of a SCOTUS declaration that a federal statute is unconstitutional on the ground that the Constitution does not provide for judicial supremacy, let alone judicial review. (I haven't read as yet Burns' new book "Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court." Query whether Burns addresses the need for a constitutional convention?)
 

I wonder whether Professor Levinson is being entirely fair to the President and his Administration.

In all western democracies, history shows that the democracies have struggled to find the proper balance between secrecy and oversight and that the general pattern is that there are attempts to reinforce oversight every time
there is some egregious abuse of power and thereafter things muddle along but only until the next example of abuse comes to light. No democracy has yet resolved this.

One can divide the secret activities of the executive into two main areas: (i) covert information gathering and (ii) covert action. State use of covert information gathering has a venerable history. The government of Henry IV of France set up the Cabinet Noir (a mail interception service) in 1590 and the operations of Elizabeth I's spymaster, Sir Francis Walsingham, are well documented. The USA came very late into the espionage basis. The forerunner of the NSA, MI-8, was actually closed down between WW1 and WW2 after the then Secretary of State, Stimson, had famously observed: "Gentlemen do not read each other's mail". Such high principle did not, of course, survive WW2.

Most citizens of a given country think it it legitimate to spy on the activities of foreign states - but not so many realise that in these days, that activity also extends to state sponsored commercial espionage. This has gone on for years. The activities of the Soviet "trade missions" in the west were legendary and well publicised, but it is less well-known that the Western democracies have done exactly the same for years - particularly in relation to industries regarded as strategic - oil and gas being a good example. When the EU Parliament investigated the Echelon system and other US intelligence gathering activities, it found, for example, that the commercial activities of the Airbus consortium were spied upon and the information passed to Boeing so as to give Boeing a commercial advantage.

Much more worrying is the issue of covert action: the sending out of agents of the state to carry out extrajudicial actions on foreign territory. The activities of the Israeli intelligence services are well known. Here in the UK there have been a number of murders of dissidents by agents of foreign powers. The most recent publicly known case involved Russia.

It is known that the CIA once carried out such operations and that these were banned under the Ford presidency. But as Seymour Hersch asserted last March Seymour Hersh: Secret US Forces Carried Out Assassinations in a Dozen Countries, Including in Latin America and the Wall Street Journal echoes today CIA
had secret Al Qaeda Plan
, the current issue between the CIA and Congress is not really about domestic spying but as to whether the carrying out of extrajudicial killings was reauthorised by Cheney.

If it be true that the hit squads were reactivated and, given the amorality of the last Administration, that must be regarded as more than a possibility, and if, heaven forfend, there were actual assassinations ordered and carried out, that has huge foreign policy implications for the present Administration because foreign states will not excuse the conduct of the USA as a nation just because there has been a change of Administration.

The Obama Administration has inherited such a mess, it is hardly surprising that it would prefer to decide when and how it goes about correcting past errors and is perhaps not keen at this stage to have full-blown investigations distract from other urgent matters.

Governance is the art of the possible.
 

Apparently, President Bush signed an executive authorization giving local CIA commanders the power to kill or capture al Qaeda leadership. This was probably in reaction to the incidents where local CIA in Afghanistan could not get Washington authorization to kill bin Laden in the 90s.

Mourad correctly notes that such operations are extra-judicial. This is yet another reason why the United States should treat our war with al Qaeda as a war rather than a civilian criminal justice exercise. If we are at war, bin Laden can be killed on sight if he is unable to be captured. If our war with al Qaeda is instead treated as an episode of Law and Order, then we must let bin Laden go if we cannot arrest him because he is surrounded by al Qaeda fighters.

Given that it ordered FBI to Mirandize al Qaeda captured in Afghanistan and has now withdrawn the Bush authorization to kill al Qaeda leadership, has the Obama Administration gone back to the ineffective pre-9/11 civilian criminal justice model?

This would not seem to jive with Mr. Obama's continuance of the highly successful Predator strike campaign in Pakistan. A couple weeks ago, Fox News reported on a captured al Qaeda manual from Afghanistan that indicated al Qaeda had been compromised and the Predator strikes were decimating the organization in Pakistan. al Qaeda was turning on itself hunting for CIA's sources.

What is the difference between these Predator strikes and the reported Bush authorization for CIA to kill al Qaeda leadership?

We may have to wait for the next NY Times disclosure of top secret information to fill in the blanks.
 

Our resident LLB* states:

"This is yet another reason why the United States should treat our war with al Qaeda as a war rather than a civilian criminal justice exercise. "

but fails to inform us whether in the case of al Qaeda that such is a war in the sense of declaring war under the Constitution. If such is indeed a constitutional war, can war be declared domestically against the Mafia or other extremist groups in the US or in other nations? Or is "treating" such as a war something different from a constitutional war?
 

Shag:

The line between war and civilian criminal offenses is simply whether the group is warring against the United States government, the military and the People.

The mafia has not and never has gone to war against the United States,

al Qaeda has been waging war against the United States, its military and its citizenry for 15 years now complete with its own written declaration of war back in 1998.

Thus, the comparison of al Qaeda with the mafia is ridiculous.

War is not limited to foreign non-state groups. If a domestic group arose and warred against the United States ala the Whisky Rebellion, the President is certainly empowered to treat the insurrection as a war and use the military to defeat it.
 

My focus is upon war in the sense of Article One, Section 8, of the Constitution. What constitutes a war under that provision? Does the "war" against al Qaeda satisfy this? How small can a foreign non-state be and still be at war, in a constitutional sense, with the US? Perhaps our resident LLB* has a definition for "war" with cites that ties into the Constitution.
 

There is a debate over whether a declaration of war is only necessary to begin hostilities against nation states or includes non-state enemies such as al Qaeda. I personally prefer that the congressional check on the CiC extend to non-state groups as well, but I acknowledge that original understanding and practice since enactment of the Constitution argues for limiting declarations to nation states.

I do not recall a previous declaration of war in one of our several wars against non-state groups until the AUMF against al Qaeda. However, even this AUMf may have been enacted with wars against al Qaeda nation state allies in mind.
 

Our resident LLB*'s latest response might suggest that he leans towards a "living" AND "warring" Constitution when necessary to deal with non-state groups at "war" with the US. Let's imagine Prof. Levinson gets his way and there is a call for a constitutional convention. How might that convention address "war" with non-state groups?

Yes, there is debate on constitutional war. But are the Executive and Congress engaging in this debate openly?

By the Bybee, what if Mexico declared "war" on gunrunners in the US supplying guns to drug cartels in Mexico? Could Mexico send drones into Texas to target these gunrunners?
 

By the Bybee, what if Mexico declared "war" on gunrunners in the US supplying guns to drug cartels in Mexico? Could Mexico send drones into Texas to target these gunrunners?

# posted by Shag from Brookline : 4:24 PM


What about Cuba and the various Cuban "liberation" groups in Florida?
 

Shag:

I suggest poor Bart's reference to the Whiskey Rebellion is perhaps unintentionally apposite. Anything less like a war would be hard to find. The Federal Army of 12,950 found only 20 "rebels" of whom just 2 were convicted of treason but were pardoned by Washington on the grounds that one was insane and the other a simpleton.

Former President GW Bush and his advisers seem to have the same conceptual difficulty as our own poor dear Bart, namely the inability to make a distinction between the hyperbole of the politician and the law of nations. It is trite international law that a "war" properly so-called can only take place between sovereign states. Therefore there is no such thing in law as "a war on terrorism" any more than there can be a "a war on drugs" or "a war on drunk drivers". All three are criminal justice problems.

Bart assumes that the Bush Administration had authorised extrajudicial killings only in relation to Al Qaeda in Afghanistan. While it is true that both the WSJ and a Faux News report speak only of Afghanistan, the Seymour Hersh assertion is far, far wider: "There’s more—at least a dozen countries and perhaps more. The President has authorized these kinds of actions in the Middle East and also in Latin America, I will tell you, Central America, some countries.....let’s say Yemen, let’s say Peru, let’s say Colombia, let’s say Eritrea, let’s say Madagascar, let’s say Kenya, countries like that."

At this stage Mr Hersh has merely asserted the wider reach of the policy - but (i) he does have a track record of getting these things right and (ii) the assertion is certainly consistent with the arrogant approach of the Cheney/Addington team to the sovereignty of other nations.

A very large part of the problems the Obama Administration has inherited derive from the fact that the fight against terrorism has been conducted as if it were a war rather than an international police operation. What concerns me is that Bart, like many others, seems to be under the misapprehension that the Bush Administration's "GWOT" has been a success. Only if one is under the misapprehension that the Whiskey rebellion was a success. I am not nearly so sanguine. I remind myself that no general since Alexander the Great has been able to impose his will on Afghanistan and that no government of Pakistan (including that of British India) has ever been able to impose effective control over the Federally Administered Tribal Areas. That is just for starters. I see other areas of the world in which the salafists are gaining ground. I see an increase in support for salafist ideology among the young.

If the mistaken Bush Administration approach were to continue, I would fear for the ultimate outcome, particularly since the GWOT was financed by borrowing and I am not sure the Chinese would be too happy to continue the line of credit. Fortunately, I think the Obama Administration is bringing rather more understanding to the strategy required. Again, I think the simile of the time taken by a VLCC to reverse course is apposite.
 

Mourad:

Once again, our Constitution is not in any way subordinate to your or anyone's view of international law.

Given his frequent fabrications, take Seymour Hersh as a source at your own risk. That being said, no one claims that America's war with al Qaeda and its allies was limited in any way to Afghanistan. The United States has engaged and killed or captured the enemy anywhere around the world we could find him. This is hardly news.
 

This veto threat is nothing more than an attempt to maintain Executive Branch prerogatives and to limit the flow of information to members of the House (or Senate) with the greatest understanding of what may be at stake. If we think that members of the Intelligence Committee are just too untrustworthy, then this is one more ominous sign of the threat to democracy implicated in the modern national security/surveillance state.

It does appear that at least some members of the House intelligence committee - very likely including some or all of the seven Dems who wrote the letter at issue - cannot be trusted with the information briefed by CIA. Note how it took less than a week after the Panetta briefing for the existence and parameters of the Bush authorization to be leaked to the press for political reasons.
 

This is what our resident LLB* pulls out of his Backpack of Lies:

"Given his frequent fabrications, take Seymour Hersh as a source at your own risk."

once again without cites. And what are our resident LLB*'s sources for his frequency?

By the Bybee, were there lawful restrictions upon the Intel. Committee members re: the Panetta disclosures?
 

Bart asserts:-

"Once again, our Constitution is not in any way subordinate to your or anyone's view of international law."

That assertion is tenable within the territory of the USA. But citizens of other sovereign nations are not bound by the US Constitution but by their own and the writ of the United States does not run outside the USA. Thus, a finding by the President of the USA that mandates the extrajudicial execution of anybody on the territory of another sovereign state may constitute murder under the law of that state and make all the actors liable as co-conspirators.

Marc Abinder has more on the assassinations story here as does the Guardian here from which this extract: "The CIA apparently did not put the plan in to operation but the US military did, carrying out several assassinations including one in Kenya that proved to be a severe embarrassment and helped lead to the quashing of the programme."

If Bart thinks going into other sovereign nations and carrying out murders is going to win what is a battle for hearts and minds, so be it. He is, perhaps, beyond education. I would hope, however, the present Administration is grown up enough to think differently.

But with those who think like Bart still actively infecting the body politic, one can see why the Administration may wish to adopt a measured approach to its change of course in the direction of more rational and productive policies.
 

The Summer 2009 issue of The Wilson Quarterly includes an article by S. Frederick Starr titled "Rediscovering Central Asia" described in the Table of Contents: "A thousand years ago, Central Asia was the center of the intellectual world. Today, it is barely a blip on the radar except when trouble erupts. That will change if Central Asians take inspiration from their glorious past." The US has many footholds in Central Asia. Americans should know a little of its history to better understand its peoples.
 

Mourad:

At some point fairly soon, Obama should be issuing his first "National Security Strategy." It should be compared to George W. Bush's "National Security Strategy" published in the fall of 2002, especially with respect to pre-emptive strikes and dealing with nation states "harboring" terrorists, including the circumstances for pursuit of the latter by the US. Obama has a delicate task in this regard.
 

Remember 9/11?

Remember how we united and went to war against al Qaeda?

I can hear you. The entire world can hear you. And the people who knocked these buildings down will hear from all of us soon!

George Bush bullhorn speech to WTC recovery workers.

Remember when a president pledged to hunt al Qaeda down where ever they were hiding around the world?

Americans are asking, "How will we fight and win this war?" We will direct every resource at our command -- every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence and every necessary weapon of war -- to the destruction and to the defeat of the global terror network...

We will starve terrorists of funding, turn them one against another, drive them from place to place until there is no refuge or no rest.

And we will pursue nations that provide aid or safe haven to terrorism. Every nation in every region now has a decision to make: Either you are with us, or you are with the terrorists.

From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime. Our nation has been put on notice, we're not immune from attack. We will take defensive measures against terrorism to protect Americans.

George Bush speech to the nation after 9/11.

Well, forget about all that. The War on Terror has ended and we are now in a new age of hope, change and apology tours.

Two weeks ago, the Obama Administration withdrew authority to CIA and Special Forces to hunt down and kill al Qaeda anywhere they are found in the world to avoid embarrassing countries who harbor, but will not capture or surrender al Qaeda staged in their countries:

Former counter-terrorism officials who retain close links to the intelligence community say that the hidden operation involved plans by the CIA and the military to launch operations, similar to those by Israel's Mossad intelligence service, to hunt down and kill al-Qaida activists abroad without informing the governments concerned, even though some were regarded as friendly if unreliable.

The CIA apparently did not put the plan in to operation but the US military did, carrying out several assassinations including one in Kenya that proved to be a severe embarrassment and helped lead to the quashing of the programme.

A former intelligence official said the plan was hatched in the cauldron of the September 11 attacks when officials were pushing various forms of unilateral action and some settled on the Israelis as an example.

"One of the most sensitive areas has been what we do in friendly countries that don't want to co-operate or maybe we don't have enough confidence to entrust them with information. If you have an al-Qaida guy wandering around certain bits of the world we might decide that we need to deal with that ourselves, directly, without making a lot of noise," he said. "There was a plan to deal with that. It was much talked about in the CIA and the military had its own operation."

This does not really sound all that new. In fact, these were the reasons the Clinton Administration gave for declining to kill bin Laden on multiple occasions in the 90s before 9/11.

Looks like its back to the future.
 

Well, forget about all that. The War on Terror has ended and we are now in a new age of hope, change and apology tours.


Baghdad, the "War on Terror" became the "War on Sanity" on the day you rightwingnut scum invaded Iraq. As a result of that disaster we have a lot of apologizing to do. Get used to it.
 

Mourad:

If Bart thinks going into other sovereign nations and carrying out murders is going to win what is a battle for hearts and minds, so be it. He is, perhaps, beyond education. I would hope, however, the present Administration is grown up enough to think differently.

Given the dismal performance of the U.S. WRT the Guantánamo detainees and WRT detention, rendition (see el Masri and Arar), torture [and sometimes murder; see Dilawar] of various supposed "al Qaeda", I don't think that Hollywood-style extrajudicial killings are a very bright idea, no matter how popular the "Die Hard"/"Dirty Harry" type movies (or those 'secret vigilante cop organisation run amok' ones). It may play with the folks at home, but it's hardly a rational (much less legal) national policy. It's fiction.

But with those who think like Bart still actively infecting the body politic, one can see why the Administration may wish to adopt a measured approach to its change of course in the direction of more rational and productive policies.

Indeed. Here's our favourite LSR in full flower:

[Bart, quoting his favourite movie action hero/cheerleader]:

I can hear you. The entire world can hear you. And the people who knocked these buildings down will hear from all of us soon!

George Bush bullhorn speech to WTC recovery workers.

That Bart thinks that this is a situation needing a cheerleader like at the old interstate rivalry football game just shows the shallowness of his intellect.

But Dubya sure showed his ol' college licks there, didn't he? I'm sure the cheerleaders for the other side were in awe.

Cheers,
 

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