The Compromise Intelligence Authorization

As DDay noted, it looks like we’ll finally have an intelligence authorization bill. The bill is a partial win for Speaker Pelosi, as it makes full briefing to the Intelligence Committees within six months of the start of a program the default (though the Administration can still avoid doing so if it provides written rationale). And it includes at least a nod to Pelosi’s demand that GAO be giving some authority to review intelligence programs. Steven Aftergood calls the GAO access “a foothold.”

The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs,

It remains to be seen whether this compromise will give Congress enough new oversight powers to prevent the abuses that happened under Bush (and heck–I assume the Gang of Four, if not the Gang of Eight–has signed off on assassinating US citizens solely on the President’s say so, so it’s not clear that oversight will be any use in protecting the Constitution). But Jeff Stein reports both Pelosi and DiFi declaring victory, while the White House and DOD remain silent. Here’s Pelosi:

“In passing the Intelligence Authorization Act last night, the Senate upheld our first responsibility – to ensure the security of the American people – while addressing two key objectives,” Pelosi said in a statement Tuesday.

“It expands and improves the congressional notification process for covert action and provides the framework for GAO access to intelligence community information so that the GAO can conduct investigations, audits, and evaluations as requested by Congress,” Pelosi said.

Again, I remain skeptical, but at least this is better than nothing.

Think of it this way. Under these rules, the Bush White House would have had to tell the entire Intelligence Committees they were systematically torturing prisoners by February 1, 2003 (or at least admit in writing they hadn’t and wouldn’t inform the committees, rather than altering documents after the fact to pretend they had). Technically, they would have to have informed Congress of the September 17, 2001 finding dubiously used to authorize the torture program by March 17, 2002. As it happened, they apparently didn’t brief any Democrats that they were torturing prisoners until February 5, 2003, at which point the one they did brief (Jane Harman) objected in writing (and asked whether the President had signed off on the policy, which presumably meant she had never been briefed on the actual finding). We know Bob Graham had been proposing oversight of the interrogation program by that point, backed by a majority of the committee, even though he had no clue they were torturing (though Tony Blair apparently did). So it’s possible Congress would have at least demanded more information sooner about the torture under this system.

That may not have been enough to forestall Dick Cheney’s torture program. But it might have subjected it to at least a little more review.

At which point–as presumably has happened on Presidential hit lists–the blame for our egregious abuse of the Constitution would be more widely shared.

Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. BoxTurtle says:

    Nobody in the leadership really wants oversight, IMO. if they did, they could have obtained it with the tools they had available. Holding up legislation, subpoena’s, contempt citations, impeachment and so on.

    Boxturtle (Impeachment(v): The act of giving the president a fresh baked peach pie in hopes he’ll be nicer)

      • BoxTurtle says:

        I don’t think congress or the executive cares about deniability anymore. They’ve gotten away with everything and there seems to be this agreement “If you don’t investigate us, we won’t investigate you”.

        Boxturtle (The upcoming GOP congress will at least investigate ObamaLLP. Better than what we’ve got)

        • strangelyenough says:

          While you’re right about the lessening of it’s importance, particularly since Reagan {OFG’s #4 would be an archetypal example of that lawlessness), there still do seem to be things they don’t want to be tied to, e.g. torture and torture-related murder, if for nothing other than good P.R. reasons.

          All that legal nonsense, not so much…

          • BoxTurtle says:

            Torture, as long as it’s limited to Scary Brown Moslems, is pretty popular from teabaggers to moderate republicans. Actual quote from one of my neighbors: “We oughta be waterboarding them on live TV. If the ragheads fear us, they won’t fsck with us”. And this is a nice guy, the sort of fellow you’d want as a neighbor.

            I think the only reason they aren’t campaigning on a “Bring back the Rack” platform is because their religious wing would be forced to denounce it as unseemly.

            Boxturtle (Except maybe the Southern Baptists)

  2. b2020 says:

    Harman, Rockefeller, Pelosi – the lot has never actually *used* their oversight in any meaningful way, let alone put an end to violations of law and constitution through the power of the purse. They have not tried to defund, not tried to sugest defunding, not gone public, not threatened to go public.

    Let’s be clear – they did not need this to stop torture. They did not need this to try. They did not have to be briefed. They could have asked, point blank, they could have taken the answers – or lack thereof – public, and all they had to fear for was their incumbency, and maybe censure.

    Their oath is to the constitution, not to their career and their worthless hides. These people are a disgrace, unworthy of their office and unfit to be part of civilized society. Every time they seek to distract from their dereliction of duty, they seek yet more changes to the law to address issues long addressed, making matters worse and substituting effective oversight with legislative kabuki.

    The only possible benefit would be increased culpability on briefers and briefed. But The Gang knows very well they will never be held accountable, so they see a win – more CYA burden placed on the CIA.

  3. OldFatGuy says:

    Yes, this one is better than nothing.

    And I keep hearing different things about the GAO part.

    Still though, you’re 100% bottom line right about the if they sign off on assassinating American citizens, what won’t they sign off on??

    I was in the Space Division of HQUSAF at the Pentagon in the mid 80’s and got infuriated to the point of resigning over a squabble back then. The US (and Soviets) were in the middle of a “space arms race” that threatened to break us both. Congress was determined to stop this arms race, and President Reagan was determined to go full steam ahead. Congress voted to ban all space based weapons testing. Reagan vetoed it. And I’ll swear till the day I die Congress overrode that veto (yet I can’t find any Congressional proof of that) because that is what led to my resignation. Congress overrode the veto, and testing space based weapons was against the law of the land. The Pentagon (with the blessing of the Executive) merely moved it from one black world area to another and kept plodding right along.

    I then and ever since have tried, in vain, to come up with some explanation of how that’s Constitutional. And I can’t. And I can’t with the assassinating of American citizens either.

    Here’s a neat little thought experiment I wish more would try. Imagine you’re alive and the year is 1793. And President George Washington addresses Congress and declares he has the authority to assassinate American citizens with no due process. How might that have gone over then? Why should it go over any different now?

    WTF has happened to this country?

    • BoxTurtle says:

      Yes, this one is better than nothing

      Only if it’s actually followed. Watch what Pelosi DOES, not what she SAYS.

      Boxturtle (Healthy distrust of politicians in general and Pelosi in particular)

      • DWBartoo says:

        You don’t mean to suggest, Boxurtle, that Pelosi might simply say, “Take EVERYTHING off the table, clear it off completely, it’s time to celebrate our profitable, our very profitable, victory over reason, tolerance, and understanding, we are going to have a party and I want everyone to notice the beautiful tablecloth … not those ugly and unpleasant “things”, in particular, that keep being put on it!”

        DW

        • BoxTurtle says:

          I think she’ll say a lot and do almost nothing.

          Boxturtle (Thinking about it, has Madam Speaker ever even written a Sternly Worded Letter?)

          • DWBartoo says:

            I think so too, BoxTurtle.

            (Why, that is a very good question, and I think we should insist upon an answer, assuming that it is not a state secret, of course … I imagine there will be quite a number of those, “looking forward” …)

            DW

  4. donbacon says:

    As far as I know, GAO is a good organization. I’d rather have GAO lawyers looking directly at government operations than politicians.

    from the GAO website:
    “GAO Attorneys Do Work That Matters
    GAO attorneys provide legal advice and services, act as quasi-administrative law judges, serve as experts on federal appropriations law and are in-house counsel to GAO’s management.”

  5. TarheelDem says:

    It’s a sorry process when the ODNI counsel is telling Congress what it can and cannot audit. (Another plug for demanding a top-to-bottom comprehensive national security institution review as dramatic as 1947, and presumably insisting on some dramatic downsizing to fit the threat.)

  6. PeasantParty says:

    It does not matter. They are still going to get in front of cameras and say:

    “Nobody could have predicted…”

  7. alan1tx says:

    it makes full briefing to the Intelligence Committees within six months of the start of a program the default

    If they follow the rules.

    Does everyone believe the rules have been followed so far, the last 50 years? What good is this?

    • thatvisionthing says:

      That is the batshit craziest line. I haven’t even read ew’s whole post, that line just flew at me and scratched my eyes out. These secret liars and killers and crooks with an endless budget and endless paranoia and a get-out-of-court free pass can plan and plot and conspire and contract and act and do anything they want and get a six-month head start before they have to let a committee in Congress in on anything they’re up to? Tell me again why we have a Congress? Tell me again why we have a Constitution?

      Maybe I should go back and read more. This can’t be right.

      • thatvisionthing says:

        Aw gees. I am never going to understand this. I thought amendments to bills had to be submitted by congresspeople. But this guy

        In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority.

        — gets to submit amendments and threaten vetoes? I clicked on the letter and was going to print it out to read it and it’s over 60 pages long on my printer. Sure, the letter isn’t the whole thing, I’m just saying this is beyond me even if I try.

        But also, more creepy, I recognize that guy’s name. He was part of “The Trentadue Mission” in the 1990s that I wrote comments about before. I can find them by searching “Eric Holder sucks” and following the links back:

        Eric Holder SUCKS links to the comment with the link to Jesse Trentadue’s letter and 34-page PDF to Sen. Leahy asking to testify at Eric Holder’s confirmation hearing…

        No one could be less suitable to uphold the principles of justice in America than Eric Holder. And I would like the opportunity to appear before the Judiciary Committee to testify to that fact.

        Jesse C. Trentadue to Patrick Leahy, December 19, 2008

        …and I’m guessing Litt is the guy (LITTROBE) who wrote the “Trentadue, trentadon’t” memo on page 23 of the PDF.

        For more of the story you jump up a couple comments to get to the link to the whoooole obstruction of justice Oklahoma City bombing story as revealed by lawyer Jesse Trentadue’s pursuit of finding out why his brother Kenneth was murdered in federal custody in Oklahoma in 1995, and how he learned through the FOIAs and lawsuits about the coverup that Holder and Litt were involved in, as I heard it on Antiwar Radio.

        It’s been a while since I wrote that long comment, and my brain is really very small, so what floats to my surface as I try to remember that is that incredible government strongarming took place to get Kenney Trentadue’s death be called a suicide by hanging. (Ya think?) Suiciding has been happening for a while I guess. Two other guys involved with Kenney Trentadue’s story suicided too in prison by hanging. Kenney Trentadue was apparently mistaken for John Doe No. 2 in the Oklahoma bombing. Then once McVeigh was caught, John Doe No. 2 was disappeared from the case and from McVeigh’s trial — I don’t think juries were allowed to hear any evidence about Doe No. 2 and so McVeigh got the death penalty. A video of the bombing that had been seen initially disappeared too. You’d think that that would be perfect evidence at a trial, but no. (Was John Doe No. 2 an informant and the govt had prior knowledge the bombing was going to happen? I think that’s part of what we are not allowed to know.) An Oklahoma news channel recreated the video though and the audio is in Antiwar Radio’s podcast archive. Guess what, John Doe No. 2 may have been the one who set the bomb off. Two guys were in the Rider truck, and McVeigh had walked away. I wish Rachel Maddow would read this. I wish she would look through Trentadue’s FOIA responses and see the Southern Poverty Law Center being named as an informant — a guy from the SPLC was her honored guest in her McVeigh Tapes special without ever explaining his expertise or bias.

        Horton: What do you know about current Attorney General Eric Holder and his involvement in the Oklahoma City bombing and/or the cover-up thereof?

        Trentadue: Well I know Holder was the one in charge of covering up my brother’s murder. He put together what they call a roll-out plan called the Trentadue mission, and it was to prevent any kind of inquiry into my brother’s murder, no hearings in Congress. I mean, he strong-armed Senator Hatch, Senator Dorgan, every other senator he could get a hold of to stop any kind of investigation into my brother’s murder. He did that personally.

        Horton: And how do you know that?

        Trentadue: Because I have a whole bunch of e-mails back and forth involving Holder and implementing “the Trentadue mission” he called it, documenting what he did and what his role was as Deputy Attorney General. And I suspect he played the same role in keeping a lid on the bombing.

        Horton: So all those years that I was scratching my head trying to figure out how it could possibly be that Congress never convened a single hearing on any subcommittee in either house when it was run by either party on this case, it was because Eric Holder was doing the shuttle diplomacy there between branches of government preventing Dan Burton, Orrin Hatch, Arlen Specter, Patrick Leahy, people like that, from investigating this case.

        Trentadue: Both my brother’s murder and the bombing. It’s my understanding there’s never been a hearing on the bombing.

        Eric Holder and Robert Litt. Trentadue, trentadon’t. What a fucking cesspool these untouchables are. And Congress is swimming in it.

        • thatvisionthing says:

          Re the videotape, actually videotapes, Jesse Trentadue FOIA’ed them and finally got them released… all with blanks of the actual bombing.

          Oklahoma City Bombing Tapes Appear Edited: Attorney (VIDEO)

          The tapes turned over by the FBI came from security cameras various companies had mounted outside office buildings near the Alfred P. Murrah Federal Building. They are blank at points before 9:02 a.m., when a truck bomb carrying a 4,000 pound fertilizer-and-fuel-oil bomb detonated in front of the building, Trentadue said.

          “Four cameras in four different locations going blank at basically the same time on the morning of April 19, 1995. There ain’t no such thing as a coincidence,” Trentadue said.

          He said government officials claim the security cameras did not record the minutes before the bombing because “they had run out of tape” or “the tape was being replaced.”

          Mission accomplished I guess.

        • thatvisionthing says:

          An Oklahoma news channel recreated the video though and the audio is in Antiwar Radio’s podcast archive. Guess what, John Doe No. 2 may have been the one who set the bomb off. Two guys were in the Rider truck, and McVeigh had walked away.

          Youtube has the video that goes with the audio on Antiwar Radio with the news station’s recreation and report broadcast at the time of the missing video. It’s 7 minutes long and there’s no transcript so I did one:

          Youtube: Oklahoma City Bombing Federal Surveillance Tapes Coverup

          NEWSCHANNEL 4 KEVIN OGLE: …and the details are chilling. We’ll also focus on surveillance cameras, cameras that caught the bombing on tape and maybe the men behind the bombing. The NewsChannel has new information tonight that there is a chance surveillance tapes could be the smoking gun evidence. Now we asked candid questions in a rare face-to-face meeting with ATF officials close to the investigation. We learned that video collected from downtown businesses the morning of April 19th may someday be played before a jury. Officials won’t say who or what exactly is on the tape. However, numerous sources have confirmed the tapes exist and that they reveal more than one bomber.

          NEWSWOMAN’S VOICE: So what evidence are they asking for? They’re asking for video taken from the Ryder truck from the [Regency?] Towers.

          NEWSCHANNEL 4 JAYNA DAVIS: Well, Kevin, it’s a question we’ve all been asking. We’ve been asking that question since we first broke this story that surveillance cameras aimed at the federal building could have captured all those involved on tape.
          Now sources have confirmed those tapes exist and that they show more than one bomber. The FBI also confirmed those tapes exist when they refused to release them, claiming the video is part of a criminal investigation. And now for the first time we get an on-the-record response from the head of the Dallas office ATF. We learn that videotape could be unveiled as part of the prosecution’s case. No officials will discuss specifically what’s on the video, but we have been able to recreate some of what may have been captured by downtown surveillance cameras through the eyes of the witnesses.

          Now, you’re looking at a computer recreation of the final movements of the Ryder truck according to the people who crossed its path at Fifth and Harvey moments before the explosion. Tonight at 10 the witnesses will detail their memories of how they believe the suspects carried out the crime and made their getaway. Now all these accounts share a common and unsettling similarity. The witnesses say they saw several accomplices, including the infamous John Doe No. 2. ATF officials tell us the elusive John Doe is still part of this case but will not comment any further. However, they did tell us that there’s a lot about this case we don’t know yet, information you can’t find in the indictments against Timothy McVeigh, Terry Nichols and Michael Fortier.

          NEWSCHANNEL 4 KEVIN OGLE: It was just hours after the bombing when the NewsChannel first told you about the possibility that surveillance cameras may have captured the explosion and the killers on tape. Our sources and sources for the LA Times describe what’s actually on those tapes. The information shows some huge surprises — the biggest, that it may have been John Doe No. 2, not Timothy McVeigh, who detonated the bomb. Brad Edwards has the latest on the investigation in this exclusive NewsChannel report.

          NEWSCHANNEL 4 BRAD EDWARDS: Our new information comes directly from a source that has seen parts of those surveillance tapes. It also comes from reports now in the Los Angeles Times. But perhaps the biggest surprise is contained in the NewsChannel’s own information.

          Timothy McVeigh was not the last person to leave the Ryder truck. In fact another man sat inside the cab of the truck after McVeigh got out. We believe that man is John Doe No. 2, a man who for all we know is still on the loose, leaving open the vital question, was it John Doe No. 2 who actually set off the bomb, not Timothy McVeigh as we’ve all been lead to believe? NewsChannel 4 has for weeks been demanding copies of the surveillance tapes from the FBI. The federal government so far is dragging its feet, but many people in the investigation have seen the tapes and now so has a source willing to describe to the NewsChannel what the tapes show. The LA Times report shows there was a surveillance camera near the corner of Fifth and Harvey and another near the corner of Fifth and Robinson. Federal investigators recreated the time sequence leading up to the bombing by matching the video and still photos from the surveillance cameras. Since we can’t show you the tape ourselves, we’re reenacting what our source says he saw on those tapes.

          As witnesses told the NewsChannel before, the tapes show the Ryder truck parked in front of the Murrah building where we now know the blast went off. As witnesses also told us, the tapes showed two men sitting inside the Ryder truck. A man strongly resembling Timothy McVeigh gets out of the driver’s side, steps down. He then appears to have dropped something on the step up into the truck. He bends down and appears to pick something up off the step. Then he turns and walks directly across Fifth Street through the Journal Record Building. All this time John Doe No. 2 is still inside the Ryder truck’s cab sitting on the passenger side. Time passes. The surveillance tape is time-lapse photography. Without knowing exactly the time interval between shots, our source can’t be sure how long John Doe No. 2 sat in that cab. What was he doing all that time? Then the tape shows John Doe No. 2 getting out of the passenger side of the Ryder truck. Again the tape shows that a bombing witness accurately described what happened next to NewsChannel 4:

          BLACKED-OUT/DISTORTED WITNESS: I was standing in the building and I looked out the window and I seen the Ryder’s truck and I seen a man get out of the Ryder’s truck.

          NEWSCHANNEL 4 BRAD EDWARDS: The tape shows John Doe No. 2 getting out, shutting the passenger side door. He steps toward the front of the truck and is momentarily out of the frame of the surveillance camera, but shortly he appears back in frame walking toward the rear of the truck, still on the sidewalk in front of the Murrah building. Again he turns east toward the front of the truck looking toward the street. John Doe No. 2 then walks diagonally across Fifth Street toward the east as if heading toward the YMCA or the intersection of Fifth and Robinson. He again leaves the frame of the camera. Another camera shooting from another angle clearly shows the actual explosion that destroyed the federal building and killed 169 people. So what does the mysterious John Doe No. 2 look like on the tapes? The man who stayed inside the Ryder truck, possibly triggering the bomb? Well, his features are obscured by a baseball cap in the portion of tape seen by our source, the same kind of cap shown in the composite drawing first released of John Doe No. 2. The cap was a sports cap, flame style. The man himself was taller than the man resembling McVeigh and much thicker in build. He appears to have a dark or olive complexion. Our source saw only a few minutes of tape. He didn’t see all of the almost 20 minutes of surveillance tapes that reportedly were distributed to FBI agents around the country to help in their investigation, but they do show enough to raise some crucial questions: Who actually set off the bomb? What was John Doe No. 2 doing in the cab of the truck after the McVeigh look-alike got out? And how did John Doe No. 2 get away from the Murrah building?

          MAN: My understanding is there was a video of McVeigh getting out of the Ryder truck, jumping into this other pickup with John Doe No. 2. Well where’s that video? Are we ever going to get to see it?

          It would be interesting to compare NewsChannel 4’s video recreation with the one done for the Rachel Maddow special on McVeigh where McVeigh is portrayed as acting alone, and her expert guest from the Southern Poverty Law Center never says, “Hey, we were informers for the FBI, where covering up John Doe No. 2 is required.” Great job, MSNBC.

          And Congress never asked.

  8. bobschacht says:

    Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

    What I don’t get is the word “now.” Didn’t they already share that responsibility, as articulated in their oath of office?

    Bob in AZ

  9. thatvisionthing says:

    Note to moderator: I was going to Spotlight this to Rachel Maddow and MSNBC, but all the choices there are tremendously out of date — she’s not there, Keith Olbermann’s not there, but I could spotlight it to dead Ed Bradley, or to Ted Koppel at Nightline. Who updates Spotlight? If Ed Bradley’s on it and Rachel Maddow isn’t, something’s wrong. Just saying, please fix?

      • thatvisionthing says:

        Can widgets be fixed by the Spotlight controller, whoever that is? It’s really too good an idea to let rust away and there must be a point in FDL including it.