CIA and the President: The Warm Embrace of Mutual Incrimination

Brennan with TortureAndrew Sullivan is newly convinced — but surprised and confused — that President Obama is permitting John Brennan to hold up the release of the Senate Torture Report.

It is becoming clearer and clearer that one major power-broker in Washington is resisting the release of the Senate Intelligence Committee’s allegedly devastating report on the torture program run by the Bush-Cheney CIA. That major power-broker is the Obama administration.

You might be surprised by this, given the president’s opposition to torture and abolition of it. But the evidence is at this point irrefutable

[snip]

Brennan answers to the president, who has urged the release of the report.

So why the hold-up? That is the question.

Why is Obama allowing Brennan to undermine Obama’s own position? Why is the president allowing the CIA to prevent the very transparency he once pledged to uphold? I don’t know. But what I do know is that it is now Obama who is the main obstacle to releasing the Senate Report on Torture.

Mind you, the evidence was pretty irrefutable back in May, too, and became more so in July. Moreover, I’m not sure Obama has “urged the release of the report” — though Joe Biden has.

The explanation for Obama’s silence on this report seems pretty obvious if you read both Stephen Preston’s answers to Mark Udall’s questions and Obama’s past actions on torture. In short:

  • Torture was authorized by a Presidential Finding — a fact Obama has already gone to extraordinary lengths to hide
  • CIA has implied that its actions got sanction from that Finding, not the shoddy OLC memos or even the limits placed in those memos, and so the only measure of legality is President Bush’s (and the Presidency generally) continued approval of them
  • CIA helped the (Obama) White House withhold documents implicating the White House from the Senate (Sully does not note this fact, but Katherine Hawkins, whom Sully cited, did)

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

Indeed, I wonder whether the evidence in the Senate report showing CIA lied to the White House is not, in fact, cover for things some in the White House ordered CIA to do.

This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law.

Again, I think this is the way Presidential Findings are supposed to work: to implicate the President deeply enough to ensure he’ll protect the CIA for the crimes he asks it to commit.

But it’s not the way a democracy is supposed to work.

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10 Responses to CIA and the President: The Warm Embrace of Mutual Incrimination

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Emptywheel Twitterverse
emptywheel Especially true since bin Laden party investigation said top DOD officials couldn't get in trouble. https://t.co/pt9oDPtPeU
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emptywheel Important point in @PGEddington piece on politicization on ISIL intel: DOD IG can't be trusted on investigation. https://t.co/t1zHUgr1Ro
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bmaz @RMFifthCircuit Less fill and more law safer, but I bet he lays it out with plenty of fill to explain to the public what he is doing.
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bmaz @bnlfan_thunder @BenVolin Different judges do it differently. Most common, by my experience, is both parties, then breakouts, then together.
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bmaz @bnlfan_thunder @BenVolin ABSOLUTELY!
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bmaz @bnlfan_thunder @BenVolin I am sure you are well intentioned, but you are wrong. FWIW, I do this for a living, and have for a long time.
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bmaz RT @ProFootballTalk: Mike Shanahan declares Kirk Cousins a “top 10 quarterback,” and obviously just enjoys watching the world burn http://t…
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bmaz @bnlfan_thunder @BenVolin Uh, this is an arbitration, NOT a mediation. The semantics matter. Saying parties never together in arbs is silly.
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bmaz .@BenVolin Sure they can. Its whatever+however court decides to conduct it. But parties can be+often are, in the same room. Just wasn't here
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bmaz RT @RMFifthCircuit: The whole rapid fire coverage of Deflategate impossible under old system... Just musing. https://t.co/h9d49pc9CL
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bmaz @WerlySportsLaw @RMFifthCircuit @Prof_Holland @WALLACHLEGAL @IanPGunn @amilst44 We still have very limited/no crim efile. Civil presumptive
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