In the background of the fight between CIA and the Senate Intelligence Committee lurked the nomination of Caroline Krass.
Mark Udall had said that he would hold her nomination to get some answers on the Torture Report.
But she just got confirmed with just a few more no votes –4 — than the 2 she got from the Committee. Dianne Feinstein, Ron Wyden, Martin Heinrich, Mark Udall all voted yes.
This was predictable. As I pointed out the other day, the alternative to quickly confirming Krass was leaving Robert Eatinger — the guy who launched a witch hunt into Committee staffers — Acting Counsel at CIA. Even a mediocre candidate would be preferable to that, for Committee Democrats, and by all reports and appearances Krass is a very sharp and candid lawyer.
That said, in addition to seeking leverage over the Torture Report dispute, Committee members had expressed concern that Krass explicitly endorsed withholding privileged documents from the oversight Committee. So by rushing through Krass’ nomination, the Senate waived any opportunity to obtain some commitment for greater sharing with the Senate.
And thus it happens that, in response to an intolerable situation concocted by Article II, Article I pisses away even more of its authority.
Update: Here’s Udall’s statement on Krass.
Udall, a member of the U.S. Senate Select Committee on Intelligence, released his procedural hold today on the nomination of Caroline Krass to be the CIA’s general counsel, citing the conflict of interest of the acting-general counsel, as well as a firm and clear commitment by the president to declassify the committee’s landmark report on the CIA’s detention and interrogation program.
“We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate Intelligence Committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said. “The president has stated an unequivocal commitment to supporting the declassification of the Senate Intelligence Committee’s report. Coloradans expect me to hold him to his word.”
In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
By my count, Senate Intelligence Committee members asked CIA General Counsel nominee and Acting OLC Head Caroline Krass 3 questions, plus follow-ups, about torture (these are my summaries):
Granted, these questions come from people who have been particularly concerned about the Senate Torture report. So perhaps they’re just asking to ensure it doesn’t happen again.
But the questions, together, point to several potential loopholes around Obama’s purported ban on torture (even ignoring the way Executive Orders can be pixie dusted).
After all, as far as we know, the September 17, 2001 “Gloves Come Off” Memorandum of Notification remains active. That MON explicitly calls for partnering with countries that torture, both close partnership with Egypt (which was the first country we used to torture detainees), but even countries like Syria.
Then there’s the perennial question — which was the driving question in 2004 and 2005, which led to OLC memos Udall has made clear were based on CIA’s lies — of our compliance with the Convention Against Torture. We seem to have a sustained interest in humiliating detainees. Should we assume we continue to do so?
Finally, Udall’s question about the 2007 OLC memo, with his particular focus on sleep deprivation. As long ago as Faisal Shahzad’s interrogation, there have been suggestions that the High Value Interrogation Group might have found ways to keep detainees awake for extended periods. And while public explanations attributed Abu Anas al-Libi’s abbreviated shipboard interrogation to his own hunger strike, I do wonder whether some kind of coercion wasn’t also involved. Plus, there were claims that the CIA Annex in Benghazi was conducting interrogations. So I would be unsurprised if CIA were using sleep deprivation, again.
Again, perhaps Udall and Heinrich are asking these questions just to measure whether or not Krass would prevent CIA from getting back into the torture business. But I do find the questions troubling.
In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.
He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?
Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”
In other words, the answer is (it always is when Wyden asks these questions) “yes.”
This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.
Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.
[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?
Krass dodged by noting the declassification had not happened so she couldn’t answer.
But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).
Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”
Krass makes it clear the memo is still active, but assures us it’s not being used.
OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.
Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?
One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.
The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.
(h/t to KH for alerting me that the QFRs had been posted)
NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.
Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two-and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.
And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.
Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.
While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.
A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.
Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision.
But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.
But let’s take a step back and consider some other interesting details of timing.
First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.
[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.
Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.
Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).
Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?
Krass: No I do not currently have that authority.
Wyden: Okay. Who does, at the Justice Department?
Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.
She said she did not “currently have that authority.” Was she about to get that authority in days or hours?
Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.
And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.
I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:
Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.
ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.
This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.
All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).
It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.
It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.
I’ve been meaning to go back to an exchange that occurred during Caroline Krass’ confirmation hearing to be CIA’s General Counsel back on December 17. In it, Ron Wyden raised a problematic OLC opinion he has mentioned in unclassified settings at least twice in the last year (he also wrote a letter to Eric Holder about it in summer 2012): once in a letter to John Brennan, where he described it as “an opinion that interprets common commercial service agreements [that] has direct relevance to ongoing congressional debates regarding cybersecurity legislation.” And then again in Questions for the Record in September.
Having been ignored by Eric Holder for at least a year and a half (probably closer to 3 years) on this front and apparently concerned about the memo as we continue to discuss legislation that pertains to cybersecurity, he used Krass’ confirmation hearing to get more details on why DOJ won’t withdraw the memo and what it would take to be withdrawn.
Wyden: The other matter I want to ask you about dealt with this matter of the OLC opinion, and we talked about this in the office as well. This is a particularly opinion in the Office of Legal Counsel I’ve been concerned about — I think the reasoning is inconsistent with the public’s understanding of the law and as I indicated I believe it needs to be withdrawn. As we talked about, you were familiar with it. And my first question — as I indicated I would ask — as a senior government attorney, would you rely on the legal reasoning contained in this opinion?
Krass: Senator, at your request I did review that opinion from 2003, and based on the age of the opinion and the fact that it addressed at the time what it described as an issue of first impression, as well as the evolving technology that that opinion was discussing, as well as the evolution of case law, I would not rely on that opinion if I were–
Wyden: I appreciate that, and again your candor is helpful, because we talked about this. So that’s encouraging. But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?
Krass: No I do not currently have that authority.
Wyden: Okay. Who does, at the Justice Department?
Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.
Wyden: I appreciate that and you were very straightforward in saying that. What concerns me is unless the opinion is withdrawn, at some point somebody else might be tempted to reach the opposite conclusion. So, again, I appreciate the way you’ve handled a sensitive matter and I’m going to continue to prosecute the case for getting this opinion withdrawn.
The big piece of news here — from Krass, not Wyden — is that the opinion dates to 2003, which dates it to the transition period bridging Jay Bybee/John Yoo and Jack Goldsmith’s tenure at OLC, and also the period when the Bush Administration was running its illegal wiretap program under a series of dodgy OLC opinions. She also notes that it was a memo on first impression — something there was purportedly no law or prior opinion on — on new technology.
Yet for some reason, it was not among the opinions Goldsmith chose to withdraw in 2004 (assuming he didn’t write it), nor will Eric Holder even respond to questions about why he won’t withdraw it now.
I wonder if Wyden has asked whether some opinion written since that time relies back on that 2003 opinion, just as the illegal wiretap programs relied back on Yoo’s Fourth Amendment stripping one?
I’m watching the confirmation hearing for Caroline Krass to be General Counsel of the CIA.
When his turn, Mark Udall just started by saying that after the review process between CIA and Senate Intelligence Committee, “I’m more confident than ever of the factual accuracy of the Committee’s 6300 page study.” He then repeated it again.
He went on to reveal that CIA is still withholding certain cables the Committee needs to finish the report.
Finally, he revealed that Leon Panetta did a review of the torture program. And that review came to the same conclusion as the Senate Intelligence Report.
Which raised two questions, for Udall. First, given that Panetta, as CIA DIrector, came to largely similar results as the Senate did, why has the CIA spent a year fighting the release of the Torture Report?
More importantly, why has — as Udall revealed — refused to turn over the Panetta review to the Committee?
Very good questions.
I’m going to have more to say about the Libya memo the Administration released yesterday. But I just wanted to point out something about the structure of it.
Here’s the first paragraph:
This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. [my emphasis]
This is not the advice authorizing the Libyan engagement. Rather, it is a document written the day after–the memo notes–the Administration turned over control to NATO, claiming to memorialize the advice given before the Libyan engagement (therefore, presumably, before March 19).
Is this all the advice OLC gave the President? Did OLC authorize further activities? Did Obama’s description of why bombing Libya was in the national interest before March 19 match what appears in this memo, written after the fact?
This fundamental structural reality is all the more striking given the role of Section I of the memo: it provides a narrative of the Libyan engagement starting in mid-February and leading right up to the March 31 turnover of control to NATO. In other words, a key function of this memo is to provide the Administration’s own mini-history of the Libyan engagement, written the day after an artificial “end date” for the engagement, which it uses to lay out the national interest of bombing Libya and the limits to our engagement in it that the memo says justify the engagement. Two key elements in this history–Obama’s address to Congress on March 21 and his address to the nation on March 28–took place after the real advice OLC offered Obama to authorize this engagement.
But the memo claims to have offered its advice before the start of the bombing. It is basically using Presidential statements made up to 9 days after the advice it gave to “memorialize” the advice it gave 9 days earlier. The memo uses limits Obama described after the advice was actually given to claim the advice itself had limits.
I’m envisioning a discussion like this:
Bob Bauer: Caroline, can you give us a verbal okay for this engagement?
Caroline Krass: Do you want a written memo?
Bauer: Not yet. Let’s wait until it’s all done so we can tailor the legal authorization of it to what we really end up doing. It’ll make it easier for us to thread the needle between authorizing what we do while still claiming to believe Executive Power is limited.
Krass: Okay, Bob.
Pretty remarkable, isn’t it, the way a memo written after the fact authorizes precisely the engagement that Obama ultimately used, all the while highlighting limits to the use of unilateral presidential power?