Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

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.

48 replies
  1. orionATL says:

    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…”

    now you acknowledge this likely fact.

    what (recent) info led you to this (recent) firm conclusion?

    how does the alleged yemeni airforce strike against al-awlaki on 12/24 fit in, or was that a cover story for jsoc?

      • orionATL says:

        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…”

        i was surprised to see you put so directly; i have suspicioned it for years.

        i did not recall previously reading it in your work or that of others, but that may well be my oversight/failure.

        in any event, it’s out for sure now.

        now- on to part 2

        was the nigerian undiebomber’s failed-but-officially-permitted effort not connected with the previous day’s attempt to assassinate al-awlaki?

        my guess is it was.

        this is the kind of bungled idiocy by suposedly respectable public officials – prez, secdef, cia commandante, doj pixie dusters – that cries for a washington cover-up.

        it won’t be sen feinstein vs the rest; it will be sen feinstein working with the rest to scratch over the scat.

  2. orionATL says:

    since there’s no edit key –

    another question:

    was the 12/24 attack on al-a related in your mind to the de-fanged or fake attempted plane bombing over detroit by the nutty-nigerian on 12/25?

    • emptywheel says:

      Apparently, with the redo, if you want full comment powers, you gotta register to comment. You can do that in the “meta” section over in the right hand column.

        • Millenial Labs says:

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          Run through the account registration prompts and the function benefits will be available to you. This is true for all guest users who wish to become registered Emptywheel site users.

        • TomVet says:

          bmaz, I have to agree w/P J Evans@11. These instructions only get me to a log-in screen NOT a register screen and I do not already have WP credentials.

          Please advise?

        • P J Evans says:

          There doesn’t seem to be any place to register. You get a log-in page, but no joy.
          (I actually have a WP blog, but it doesn’t recognize that sign-in. That’s my beef. )

        • lefty665 says:

          Thanks P J, that’s what happened to me too.

          “Run through the account registration prompts and the function benefits will be available to you. This is true for all guest users who wish to become registered Emptywheel site users.”

          This would have been helpful had there been actual “registration prompts”, but alas there are none.

          It’s what happens when you send a retriever to do a pointer’s job. There’s no telling what it will bring back. The nicest touch is the lock out after several incorrect login attempts.

          Maybe it’s a doggy idea of a joke and McCaffrey’s laughing up his sleeves, if he has any.

  3. Brindle says:

    Excellent take and reading of the current situation.
    Unfortunately I expect Brennbama to prevail—they are kind of joined at the hip on this.

  4. Howard Beale IV says:

    Anytime anyone throws around the term ‘Constitutional Crises’, it just affirms to me that it’s a bullshit argument guarantted to be nothing more than clickbait.

    After all, look what happened when the torture tapes got erased. Who really paid a price for that act of malfeasance, eh? No one.

    Feinstein should resign her chair of the committee, but that won’t happen either. Unless Congress actually does a real oversight job and start publicly releasing their work products, this is nothing more than a contest of which government entity is going to be embarrased more. After this debacle, if I were Feinstein, I’d move heaven and earth to bring Snowden back to US Soil with full immunity from prosecution and let him spill the beans on both the NSA and CIA.

    • P J Evans says:

      Like that’s going to happen. Who would become chairperson, and would it be an improvement in any way?

    • Butch Cavanaugh says:

      Yes, Edward Snowden should be allowed to come back to the USA without any charges facing him but that won’t happen. He can still sing like a little bird from anywhere in the world. With any luck more documents will be revealed from Snowden in regards to these out landish practices by our so called “Intelligence” community.

  5. joanneleon says:

    I don’t think there is even the slightest possibility that Eatinger referred those staffers to DoJ without Brennan’s blessing, and perhaps more likely as a result of his orders. It wouldn’t surprise me if Brennan blamed it on him though, and/or if they both thought it was a way to get the SSCI to back off.

    • emptywheel says:

      No, you’re right. He had Brennan’s blessing, as Brennan made clear in his letter to DiFi I think.

  6. Snoopdido says:

    As I mentioned earlier today, I think one aspect of this “fight” is the political effort to get the SSCI Torture report released. Senator Feinstein and the Democrats know they face an uphill battle to get a 60+ vote from the full Senate on releasing the report.

    In order to do that, they obviously need the votes of some Republicans. That was one reason for the tone and substance of Senator Feinstein’s speech this morning where she tried to make the case that the Senate itself had been constitutionally victimized by the CIA’s machinations.

    With the already-to-go statements of support from Majority Leader Senator Reid and SASC Chairman Senator Leahy, it is clear that the Senate Democratic Caucus was in on the strategic planning involved in Senator Feinstein’s speech.

    The timing aspect is also part of their plan. The Senate Democrats want this out for the 2014 Congressional campaigning, because if not now with their Senate majority, it may be never.

    • Snoopdido says:

      Correction. Sorry about that, but Senator Leahy is Chairman of the Senate Judiciary committee and Senator Levin is Chairman of the Senate Armed Services committee.

    • emptywheel says:

      Interesting argument.

      It will still come down to Collins to get there though and she was pretty lukewarm even after DiFi’s speech.

      • Snoopdido says:

        Yeah, Senator Lindsey Graham was spouting off about how if true, the CIA (and Brennan of course) were in for some ass kicking, but I don’t believe that translates into his support for releasing the SSCI Torture report. He’s all about Benghazi/CIA/Brennan/Obama bashing.

        I also think that most of the other Senate Republicans can see that the release of the SSCI Torture report might have political consequences for Republicans in general, so my call of the uphill nature facing Senate Democrats.

        I think Senator Feinstein and the rest of the Senate Democratic caucus thought to use the serendipitous occurrence of the CIA spying on them as a means to gain enough Republican support for the release of the SSCI Torture report. We’ll see if it works, but I have my doubts.

  7. joanneleon says:

    I also think it’s likely there’s a *whole* lot more to this.

    Two of the reasons why I think this:
    1. Feinstein confidently asserted that she believes CIA is trying to intimidate SSCI. It’s not like her to say something like that. Were people intimidated or threatened in other ways that she is not mentioning?

    2. Wyden’s questions about whether or not CIA hacks computers. Was he referring to some other hacking activities in addition to the deletion of documents and the things Feinstein mentioned? Did they hack into other Senate computers? Home computers? Break into homes? Maybe they were hoping to find copies of any of the documents computer at home, or their work computers without following all the procedures, or hoping to find blackmail material? Did they suspect their communications were spied on or something like that?

    Everyone notes that all of this is way out of character for DiFi. Not that the things she mentions and the battle between SSCI and CIA aren’t a big enough deal, I’m not saying that. I’m just saying that personally, I think there’s even more to it. A lot more.

    One other factor that occurred to me today. Feinstein’s reputation has taken a big hit. She’s a big girl, been in politics a long time. But the Snowden affair has really made her look like a tool and with each new revelation, it makes her look like an incompetent, complicit overseer. In one day, she’s impressed a lot of people with this move. Maybe nothing will come of it and she’ll get her apology and answers and she’ll let the whole thing go (I actually think this is likely). But the episode does polish her very tarnished reputation a bit, whatever the outcome.

  8. john francis lee says:

    ‘ 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. ‘

    That’s all the more reason that ‘Feinstein and her colleagues [to] channel Mike Gravel and read the 6,000 page report into the Senate record.’

    They’ve been sniveling and crawling on their bellies like snakes for far too long.

    The report MUST be released … especially considering the lengths Brennan has gove to to stop it.

    It could have been done YEARS ago. Literally

  9. Stephen says:

    Feinstein’s full speech to the Senate was more than 35 minutes in length and went into great detail, much of which is (of course) missing from that 2 and a half minute report linked to on this page

    For example, the CIA violated the committee’s “walled-off” drive space not once but twice!

    The full speech can be found on youtube. Here, for example is one:


    (Note: that that copy also contains Patrick Leahy’s response which immediately followed Feinstein’s speech.)

  10. Stephen says:

    Two additional points.

    1) When Brennan in response to a query at a meeting of the Council for Foreign Relations denied “hacking” into the committee’s computers, he was arguably doing what the NSA loves to do: telling a half-truth to delude the less informed. Since the drive space the committee was using was part of the CIA’s OWN computer system given to the committee by the CIA they arguably did not have to “hack”, any more than using picking a lock for a door to your own house you have lost the key for does not constitute breaking-and-entering.

    In any case, they (probably) did not even have to “break” in. In all likelihood they simply had to get a CIA sysadmin to give the required access. (Feinstein herself implies at one point in her speech that the CIA’s system admins had the capability of accessing the drive space loaned to them by the CIA.)

    2) The brazenness with which the CIA violated the commitee’s network drive implied that either they expected not to get caught, or, if they did, that there would be no consequences for doing so.

    That may imply one or other (oer both) of twoi things: high level WH support., However, it also raises a more disturbing possibility: that the CIA has done something equivalent to this sort of thing to Congressional committees before–and got away with it, with or without being caught.

    (I will also note that Brennan’s much reported response to a query at the Council for Foreign Relation (“we wouldn’t do this sort of thing”) just plain invites skepticism.)

  11. Simplify says:

    Agreed, though I think the full release of the SSCI torture report would have real impact and would be tough to dismiss. Just getting out the details of the torture (like with waterboarding 183X) would drive a whole fresh round of political pressure. The CIA is getting exposed when push comes to shove like this.

    But yeah, it’s not as though Sen. Feinstein is anything like our best prizefighter! When enemies like these are our friends…

    Companion post over on Daily Kos

  12. DWBartoo says:

    EW, yes, the Crisis, which is no mere “turf spat”, can no longer be dismissed as not existing … and the Crisis is really quite old.

    If “our” negligible “democracy” hangs in the balance and depends on the sill and wit of the Legislative Branch, alone, then, quite frankly, there is little reason for realistic “hope”.

    What of the rest of us?

    Starting, shall we, with members of the legal profession … what can the MANY of them, and the rest of us, do?

    Considering that “the discussion” of “the Crisis”, which has been long-going, here, is but little begun in the larger society, how may the citizenry of this nation, this society, come to understand the enormity of what we face, when those most daily conversant with the once-upon-a-time rule of law … seem apathetic or appear to be deliberately uninterested?

    The Judicial Branch has long looked the other way as it awarded (or conceded) whatever the Executive Branch has sought … as exceptional empire so clearly demands … of any such “branch”.

    How long have “we” endured a “democracy” in name only, how long has the essentially meaningless ritual of voting, which may only ratify the choices of the elite, yet nonetheless has served to mollify, if not convince the many that “the government” was, somehow, “theirs”, and that it exists, legitimately, to serve the needs and interests of all? Indeed, is that not what adults, to this very day, are “teaching” children to “believe”?

    We have not simply an engineered crisis of Constitutional proportion, we have also a most extreme crisis of manipulated and manufactured ignorance to “compliment” the first crisis. One might even imagine it had all been “planned”.

    These matters are not simply the concern of the political class, the so-called “representatives” of the people, these matters are the proper concern of everyone … who makes any pretense of living in, of participating in … a genuine democracy.

    As I have said before, should we somehow weather this long and deep crisis, or even decide that things are so corrupt that we must start anew … from agreed upon foundational principle … the your role, EW, of educating, and thereby encouraging, the rest of us, will come to be seen as crucially important.

    My continuing appreciation.


    • coral says:

      All EW’s work and detailed explanations are much appreciated. Sadly, I will be greatly surprised if the Senate is able to summon whatever courage is necessary to stand up to CIA and NSA.

  13. chronicle says:

    This so called “crisis” has been preordained from the moment Truman signed the Central Intelligence Act of 1949. Read it to see why. Furthermore, James Garrison warned us almost 50 years ago during an interview with Playboy magazine. While I have already posted the relative portion in a previous post…at this point..this deserves repeating….

    (snip)”…The power of the states and Congress has gradually been abandoned to the Executive Department, because of war conditions; and we’ve seen the creation of an arrogant, swollen bureaucratic complex totally unfettered by the checks and balances of the Constitution. In a very real and terrifying sense, our Government is the CIA and the Pentagon, with Congress reduced to a debating society. …..”unquote(snip)

    Garrison saw 50 years ago what we are discovering today. And he warned us. No one paid attention.

    There is only one way to reign in this insidious Cartel called the CIA, notwithstanding the NSA.

    Gut the Central Intelligence Act of 1949.

  14. lefty665 says:

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    Sorry bmaz – no good deed goes unpunished.

  15. Joanne Leon says:

    Registered. Easy as pie. I’m logged in now.

    I don’t have tabs either. If I go to my dashboard I have some tabs on left margin but this story page and comments section looks the same as it did when I wasn’t registered or logged in. I will miss being able to preview and edit my comments.

  16. ArizonaBumblebee says:

    This country is in a world of hurt. The two party system we previously relied upon to demand executive accountability no longer functions. The Republicans, the so-called loyal opposition, have sold out the Constitution for the sake of political expediency and to garner more contributions from neocon fatcats and corporate sponsors of the national security state. Meanwhile, the Democrats are traumatized by President Obama’s warm embrace of the national security state and unwilling to demand executive department accountability from a president of their own party who has clearly left the reservation to pursue untrammeled power by the executive branch. In previous generations, a senator like Henry Cabot Lodge or J. William Fulbright (not to overlook Senators Eugene McCarthy and George McGovern) would rise and put a stop to a president crossing the line, but I don’t see a senator in either party of that stature in the Senate today, although Senators Udall, Sanders, and Wyden give me hope. (Remember that it was Senator Goldwater, Mr. Conservative, who told President Nixon that his time was up.) Most senators today are too busy conferring with their political consultants to be statesmen safeguarding a constitutional republic.

    • posaune says:

      “Most senators today are too busy conferring with their political consultants to be statesmen safeguarding a constitutional republic”

      or the lobbyists.

  17. Jeff Kaye says:

    Your response, and that of others (FP), is redolent of a general who saw the Nazis attack Poland, and could only generate strategy in relation to Polish territory, not noting the bigger picture of the unfolding war.

    You rightly understand and explain how the NSA and intelligence agencies issue is bound up with the CIA torture story. But I fail to hear from you or anyone the fact that torture — on a far greater scale than that undertaken by the CIA — continues to be practiced by the Department of Defense. Indeed, the situation is often posed as a clear choice between the barbaric torture of the CIA and the humane interrogation substitute offered in DoD’s Army Field Manual.

    This scenario, so often promulgated in the media, is entirely false. I have tried my best to educate the public about the reality behind Bush/Cheney’s use of the Army Field Manual to hide the CIA’s KUBARK program of psychological torture.

    The only way to take on the torture issue is to take it on totally. To divide CIA from DoD from FBI use of torture only allows the poison to perpetuate itself. One must not mistake political, short-term victories (a resignation forced — say of Brennan) with an massive overhaul of the entire machinery of coercion, whose origins extend back before 9/11, and which under Obama have been given all the force of an Executive Order.

    • emptywheel says:

      I would say YOU’re te one thinking too narrowly. This is not just about torture. It’s about assassination and dragnet spying and coups and whatnot. The most likely way Dems win this fight is to go big, not just against torture, but against the unaccountable structure of the Deep State. Doubt it’ll happen. But it is one strategy.

  18. GKJames says:

    The only thing I’d add to this clear-eyed analysis is that there is no evidence that Feinstein herself is keen on anything resembling a substantive and permanent reining in of the CIA et al. Three weeks from now, after Brennan’s finished staring down Feinstein with Obama’s help (“Dad says I’m right and you’re wrong…”), this’ll be ancient history. At which point it’ll be time again for the WP will treat us to another “Brennan’s the moral conscience of the president’s foreign policy team” Hallmark moment.

    • emptywheel says:

      I mostly agree. But she may have no choice at this point. And hey, she’s the second-oldest Senator, she’s got only so much to lose. Who knows?

  19. spongebrain says:

    You, you conspiracy theorist! Invasion of the Body Snatchers comes to mind. And he was right! Not that it mattered.


  20. timbo says:

    Where the bodies are buried is indeed a good question. For example, who was shown on those tapes witnessing and participating in the torture of kidnapped persons? Is Brennan or the aGC CIA in any of those tapes? Is there indications of closed-circuit remote viewing of these procedings to places inside the United States? Probably not…though still…well, whatever the case, I do hope that the folks responsible for undermining some of the basic tenets or our legal system end up being convicted. Feinstein in her speech yesterday alluded to how releasing this report would somehow ensure that the US would never condone torture such as this again. However, as all the power-hungry sociopaths know, if you can’t be convicted for it, then, well, it’s okay. So how is it that Feinstein is going to hold anyone >legally< responsible for all the obvious criminality involved in what has been happening in the Executive branch? And that's where we stand really, with Feinstein as and advocate for publishing a document that has little legal consequence in the United States.

  21. spongebrain says:

    Well that’s depressing. On a lighter note, Tor is becoming more inconvenient by the day.

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