Friday, August 28, 2009

Dealing With The Secret Government

" ... But a growing chorus of voices, some of whom served on the original committee and some of whom currently occupy oversight positions in Congress, have begun to refer to the Church Committee as a model for the kind of sustained inquiry needed today. ... "

Christopher Hayes: A Comprehensive Accounting Is Long Overdue
Nation/CBS News Repost
August 27, 2009

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of "fair play" must be reconsidered.

Though these words echo his famous endorsement of working "the dark side" in order to triumph in the "war on terror," they were not, in fact, written by Dick Cheney. They come from the Doolittle Report, which was commissioned by President Eisenhower in 1954 to craft an intelligence strategy for winning the cold war. From a strategic perspective, the threat posed by global communism, headquartered in a massive, nuclear-armed superpower with almost 6 million men under arms, and Al Qaeda, a networked, globally distributed group of thousands of nonstate actors, could not be more different. But the national security state's understanding of each as an existential threat was, and continues to be, nearly identical. The enemy is ingenious, relentless and unencumbered by the procedural and moral niceties that hamstring the bureaucrats of a liberal democracy. Victory--indeed, survival--requires us to become more like them.

And so: the CIA contracted a Mafia boss to murder Fidel Castro, sent biotoxins to the Republic of Congo with orders to poison Patrice Lumumba and tested LSD on unsuspecting citizens (one of whom jumped out of a window to his death). It fomented coups and bloodshed against democratically elected governments, while the National Security Agency, in coordination with the major telegram companies, read every single telegram coming in or going out of the country for three decades. The FBI infiltrated peaceful antiwar groups, breaking up marriages of activists with forged evidence of infidelity, while surveilling civil rights leaders with an assortment of bugs and break-ins. It even attempted to blackmail Martin Luther King Jr. into committing suicide, shipping him tapes of him midcoitus with a mistress and a note that said, "There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation."

We know all this (and much more) thanks to the work of the Church Committee. Chaired by Idaho Senator Frank Church in 1975-76, the Select Committee to Study Governmental Operations With Respect to Intelligence Activities labored for sixteen months to produce a 5,000-page report that is a canonical history of the secret government. Over the past three decades the Church Committee has faded into relative obscurity. (I was somewhat surprised to discover how few people my age had heard of it.) But in the wake of further disclosures of crimes and abuses committed by the Bush administration and the escalating war of words between the CIA and Congress over just how much Congress knew about (and approved) these activities, the specter of the committee has begun to haunt Capitol Hill.

Mostly, the Church Committee is invoked by conservatives as a cautionary tale, a case of liberal overreach that handicapped the nation's intelligence operations for decades. Dick Cheney bemoaned the fact that his time as President Ford's chief of staff was "the low point" of presidential authority, thanks to a feckless Congress "all too often swayed by the public opinion of the moment."

But a growing chorus of voices, some of whom served on the original committee and some of whom currently occupy oversight positions in Congress, have begun to refer to the Church Committee as a model for the kind of sustained inquiry needed today. Congressman Rush Holt, a New Jersey Democrat, has served on the House Permanent Select Committee on Intelligence since 2003. When I met him recently, his office had a table full of books and papers about intelligence oversight and the Church Committee's legacy. "The intelligence community has not undergone comprehensive examination since then," he said, "and it needs it."

In a recent interview with the Washington Independent, former Senator Gary Hart, who served on the Church Committee, said there are "sufficient parallels" between the abuses of the cold war and those revealed in the past few years to "warrant a kind of sweeping investigation." Senators Pat Leahy and Russ Feingold have expressed support for a commission of inquiry. Even former White House counterterrorism czar Richard Clarke, who previously criticized the post-Church intelligence community's risk-averse ways, is on board. "In a democracy with Congressional oversight...when you've had this period where there appears to have been excesses, [where] there appears to have been illegality," he told me, "you need a comprehensive checkup."

The original Church Committee ushered in an era of reforms that we've come to take for granted: the Senate Select Committee on Intelligence, the House Permanent Select Committee on Intelligence, the Foreign Intelligence Surveillance Act (FISA) courts and executive orders banning assassinations. But it's hard to survey the legal and moral wreckage of the "war on terror" and conclude that those reforms have stood the test of time. When the country faced another "implacable" enemy, the reforms of the Church Committee were subverted, circumvented, rolled back and outpaced.

To take just the most recent examples, press reports indicate that the CIA may have been training agents to conduct assassinations of Al Qaeda leaders during the first six months of the Obama administration, before either CIA director Leon Panetta or Congress was notified. What's more, according to reports in the New York Times and this magazine, the CIA outsourced parts of an assassination program to the private security firm Blackwater. As this article goes to press, Attorney General Eric Holder has appointed a special prosecutor, John Durham, to determine if a criminal investigation should go forward against CIA agents and contractors for torturing detainees. Durham's narrowly defined inquiry targets fewer than a dozen cases and falls far short of the "sweeping investigation" called for by Hart, Clarke and others.

Once again, it seems a comprehensive accounting is long overdue.

On December 22, 1974, the New York Times published an explosive front-page story by Seymour Hersh. Drawn from leaked portions of a 704-page internal CIA review of covert activities, known within the agency as "the family jewels," the article detailed the activities of a massive domestic spying program called Operation Chaos. "Huge CIA Operation Reported Against Antiwar Forces and Other Dissidents During the Nixon Years," read the headline.

The article created an uproar. In the wake of Watergate and the revelations of Nixon's recklessly lawless executive branch, the public was primed to think the worst. Church, a liberal, saw an opportunity to ferret out abuses, rein in an out-of-control intelligence apparatus and give himself a prime platform from which to run for president. He advocated for a special committee to investigate the activities of the various intelligence agencies. Senate Republicans objected, and the White House sought to cut off momentum by establishing its own commission of inquiry, chaired by Vice President Nelson Rockefeller. But the press didn't let up. Hersh published more startling revelations, and CBS's Daniel Schorr began airing reports of the CIA's involvement in international assassinations. For a nation that had suffered the traumatic deaths of JFK, RFK and MLK in the past dozen years, this was the last straw. "Murder," playwright Lillian Hellman wrote in a New York Times op-ed. "We didn't think of ourselves that way once upon a time."

On January 27, 1975, the Senate voted to create the Select Committee to Study Governmental Operations With Respect to Intelligence Activities. (The committee also had a House counterpart, chaired by Otis Pike.) Each of its eleven members, six Democrats and five Republicans, appointed a staff liaison. The committee was given broad latitude, subpoena power and, crucially, a staff of 150. "We were in a huge auditorium in the new Senate office building," recalls Barbara Banoff, who joined the staff of the committee as a young attorney from New York. "They were just little cubicles with office dividers; if somebody was yelling at one place in the auditorium, everyone else could hear them."

The staff was impressive. Chief counsel Frederick "Fritz" A.O. Schwarz was a top-flight litigator at a white-shoe New York firm. Other positions were filled by career intelligence officers, attorneys and academics. "I thought the committee was outstanding," says Loch Johnson, who served as Church's special assistant on the committee and now edits the journal Intelligence and National Security. "I was kind of amazed by that.... Usually in committees you get a hodgepodge.... Look at the résumés of the people: a lot of great attorneys and social scientists with well-regarded credentials."

Immediately, Schwarz says, it became apparent that the magnitude of the task before them was overwhelming. "We had to pick a few subjects and look at the subjects in real depth because if we didn't do that...there were so many things that were coming in as tips that we could never get any of them well."

The committee broke its staff up into task forces, each focusing on a discrete area, such as the CIA, assassinations and the FBI's domestic spying. Sensing the particularly acute outrage over revelations of the CIA's assassination plots, the committee worked hard to produce an interim report on the matter, which it released on November 20, 1975. It contained many of the more lurid examples of CIA high jinks--including plans to kill Castro with poisoned cigars--that would come to define the agency's image for an entire generation of Americans.

As the staff dug deeper, they came to realize that something was very rotten indeed at the heart of the national security state. "I think we were all shocked at the extent of the abuses of power by these agencies," says Johnson. "We had, of course, read Sy Hersh's piece. Cointelpro--that was not a part of Sy Hersh's article, and that was simply shocking. Not only did it involve domestic surveillance but domestic covert action. There were a number of things that were really eye-opening."

The committee's investigations had a radicalizing effect on even the top staffers like Schwarz and minority counsel Curtis Smothers. "As they were reading our reports," says Banoff, "we'd hear from Fritz, who had just read some draft report on some particularly outrageous misdeed: 'Goddamn it!' And he'd pound the desk. And then from Curtis: 'Those bastards!' Pound the desk. It was like a counterpuntal hymn."

Contrary to right-wing caricature, the committee was not staffed with crusading liberals. Indeed, almost every former staff member I interviewed made a point of emphasizing that the staff was not particularly ideological and operated without fear or favor. "The best thing they did," says Banoff, was "they didn't have separate majority and minority staff. I never got asked what party I belonged to, at all. That wasn't what Fritz was looking for. The staffs were integrated; we all worked together. We really did. We didn't have any obstructionism from a senator or a senator's designee."

Bill Bader, a former CIA analyst and naval intelligence officer chosen to run the committee's CIA task force, doesn't quite agree. "John Tower and Barry Goldwater [Republican senators on the committee] didn't think there should be anything at all," says Bader. "That was their whole view of the whole thing, and they made Church and [fellow committee member Walter] Mondale's life kind of miserable." That said, at the staff level Bader says his relationships inside the CIA helped a great deal. "But most of the analytical world was very happy for me to have that role because they knew me, because they knew I was fair, serious and I didn't have an ax to grind."

Particularly crucial was the reluctant compliance of CIA director William Colby. Colby's predecessor, Richard Helms, was of the old school: blatantly contemptuous of oversight of any kind. According to Bader, Helms felt that "this investigation was traitorous, pure and simple; you don't do things like that." Colby, on the other hand, was committed to reforming the agency and, some say, privately feared that if he fought Congress, there was a possibility it would try to get rid of the agency altogether.

Colby's attitude proved crucial to the committee's success. Though endowed with subpoena power, it had no enforcement capability to compel the Ford administration to turn over relevant documents, and at first the administration stonewalled. But the Church Committee benefited greatly from playing good cop to the House Pike Committee's bad cop, which quickly became embroiled in an escalating series of showdowns over testimony and disclosure, which Henry Kissinger also tried to stonewall. The Church Committee emerged as a kind of middle path--the sober, responsible investigators the administration could work with. "One of the reasons that the Senate committee got along well [with the White House]," says staff member Richard Betts, now a professor of political science at Columbia University, "is because [White House officials] were really pissed off at the Pike Committee, which they considered partisan and more flaky."

Committee investigators ultimately read through thousands of previously unreleased files. Without this access, the Church Committee couldn't have exposed what it did. Which prompts the question: were Congress to undertake a similar inquiry today, would the White House cooperate?

So far, the White House's record on disclosure has been disappointing. With the notable and admirable exception of its decision to release the Bush administration's Office of Legal Counsel's (OLC) memos authorizing torture, the Obama administration has largely continued to fight against disclosure of everything from photos of detainee abuse to even the most basic facts about the US detention center at Bagram Air Base in Afghanistan. It has invoked the state secrets privilege in federal court to keep hidden details about the Bush administration's wiretapping program and what exactly happened to detainees at Guantánamo. (Full disclosure: my wife works in the White House counsel's office.)

In these and other cases, however, the White House is fighting outside groups like the ACLU, Citizens for Responsibility and Ethics in Washington, and the Electronic Frontier Foundation, which it can try to stonewall in the courts with relatively little press attention. In the case of Congressional subpoenas, it would be impossible to replicate that strategy without provoking a serious political outcry. Indeed, the partisan incentives in such a scenario may work in favor of disclosure. As unlikely as it may seem, Republicans on such a committee might find themselves zealously pursuing more disclosure. When the White House released the notorious OLC torture memos, Dick Cheney responded with an uncharacteristic push for more disclosure, arguing that releasing other documents would show the effectiveness of torture in foiling terror plots.

There was a somewhat similar dynamic in effect with the Church Committee, one that helped create momentum for greater levels of transparency. Since the committee began in the wake of Nixon's resignation and revelations about his deceptions, abuses and sociopathic pursuit of grudges, Church and many Democrats had every reason to believe they would be chiefly unmasking the full depths of Nixon's perfidy. Quickly, however, it became clear that Nixon was a difference in degree rather than a difference in kind. Kennedy and Johnson had, with J. Edgar Hoover, put in place many of the illegal policies and programs. Secret documents obtained by the committee even revealed that the sainted FDR had ordered IRS audits of his political enemies. Republicans on the committee, then, had as much incentive to dig up the truth as did their Democratic counterparts.

As historian Kathy Olmsted argues in her book Challenging the Secret Government, Church was never quite able to part with this conception of good Democrats/bad Republicans. Confronted with misdeeds under Kennedy and Johnson, he chose to view the CIA as a rogue agency, as opposed to one executing the president's wishes. This characterization became the fulcrum of debate within the committee. At one point Church referred to the CIA as a "rogue elephant," causing a media firestorm. But the final committee report shows that to the degree the agency and other parts of the secret government were operating with limited control from the White House, it was by design. Walter Mondale came around to the view that the problem wasn't the agencies themselves but the accretion of secret executive power: "the grant of powers to the CIA and to these other agencies," he said during a committee hearing, "is, above all, a grant of power to the president."

A contemporary Church Committee would do well to follow Mondale's approach and not Church's. It must comprehensively evaluate the secret government, its activities and its relationship to Congress stretching back through several decades of Democratic and Republican administrations. Such a broad scope would insulate the committee from charges that it was simply pursuing a partisan vendetta against a discredited Republican administration, but it is also necessary to understand the systemic problems and necessary reforms.

Michael Scheuer, former head of the CIA's Osama bin Laden unit and author of several books sharply critical of Bush's management of the "war on terror," says he would be "happy" to testify before such a committee to explain the rendition program he designed and supervised under Clinton. That program allowed the United States to capture wanted terrorists and send them back to other countries to face prosecution and, in some cases, likely torture and mistreatment. It was this program that would come to serve as the foundation for the Bush policy of "extraordinary rendition," which amounted to the extralegal disappearing of suspected terrorists around the world.

We don't know much about what other secret programs Clinton and other former presidents implemented, but it's possible that under sustained scrutiny the sharp division between the Bush administration and its predecessors will begin to blur.

The Church Committee's final report was released on April 26, 1976, in six books. Its recommendations laid the groundwork for a series of reforms that more or less constitute the current architecture of intelligence oversight. Before the Church Committee, there was no stand-alone intelligence committee overseeing the executive. Whatever communication there was between the two branches of government was decidedly one-way. "[CIA director] Allen Dulles would come up himself to the Hill," Bill Bader told me, "not to a committee room. And he would sit down with [lawmakers] out in the Congressional corridors and whisper things into their ears and say, Can't tell anyone about them. And then he would go back up to the CIA."

In 1976 the Senate created the Select Committee on Intelligence, and the House followed suit with its own Permanent Select Committee on Intelligence a year later. Also in 1976 President Ford signed Executive Order 11905, which flatly stated, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." Two years later, Congress passed and President Carter signed FISA, which provided clear procedures for covert action, surveillance and oversight. The law created the special FISA court, which grants warrants for wiretapping and surveillance of anyone on American soil as well as Americans abroad. The Church Committee's revelations also had a profound effect on the bureaucratic culture of the CIA, NSA and FBI. At all three agencies, internal legal controls were put in place requiring layers of attorneys to sign off on any possibly questionable activities.

But for all these needed reforms, it's impossible to look at the past eight years and conclude they were sufficient. If cold war presidents were surreptitious and/or cavalier about the lawlessness of their actions, the Bush administration perfected a kind of perverse legalism, using sympathetic lawyers to decree legal that which was manifestly illegal. It was an ingeniously devious approach. By relying on John Yoo, a loyal ideologue inside the OLC, Cheney et al. were able to perform an end run around the extensive legal checks and restraints created precisely as a response to the Church Committee's findings. Indeed, the reason the infamous OLC memos are so garishly specific is that CIA lawyers, still operating with a memory of the Church Committee, were insistent on obtaining explicit sign-off for every action and technique that they (quite rightly) believed to be of dubious legality.

Similarly, Congressional oversight proved no match for a determined executive. Many critics from across the ideological spectrum, from Clarke to Scheuer, note that this is at least partly because Congress often would rather not know what is going on behind the curtain. But the controversy over just what House Speaker Nancy Pelosi knew about the CIA's use of torture, and when she knew it, underscores how dysfunctional the notification system has become. Created as part of the Intelligence Oversight Act of 1980, the so-called Gang of Eight system allows a president, under emergency circumstances, to restrict briefings on covert activities to the leader of each party in both houses and the top member of each party of the House and Senate intelligence committees. What was intended as a limited briefing to be given only temporarily during crises has emerged, instead, as the standard.

Clarke explained its shortcomings to me this way: "Essentially what happens, you're a member of the Gang of Eight. You get a phone call: 'We have to come and brief you.' They ask you to go to the vault. They brief you. You can't take notes, you can't have your staff there and you can't tell anybody." In addition, each member is briefed separately and individually, so they can't even discuss the briefing and ask questions in a group setting. "That's oversight?" Clarke asks. "That's a pretense at oversight. That's a box check. The law required us to do that, and we did this."

That "box check" allowed the Bush administration to claim that Democrats in Congress signed off on many of the most obviously illegal programs, from warrantless wiretapping to torture. Democrats can counter that they were barred by law from acting on whatever they knew. In other words, both sides can claim they fulfilled their legal duties.

"One of the things that would be interesting for a modern version of the Church Committee," says Robert Borosage, who worked at the Center for National Security Studies to help publicize the original committee's findings, "was that they'd be forced to confront the fact that a lot of the reforms passed after the first one have failed. So the question becomes, What do we do now?"

While many of the legal and institutional reforms ushered in by the Church Committee have been degraded and evaded, I believe it would be a mistake to argue that the committee failed. Its most enduring legacy is the political and cultural understanding of the relationship between secrecy and abuse; it narrated a moral fable about absolute power corrupting absolutely.

Public debates over intelligence are qualitatively different from other policy discussions. In a debate over whether, say, the economic stimulus has been effective, there is a presumption that all participants are working from a common set of data--GDP growth, unemployment, government spending, etc.--but with different interpretations and emphases. Such is not the case when the issue is the effectiveness of intelligence programs or the scope of covert activities. Those debates are conducted on fundamentally unequal footing. Critics may charge that torture is counterproductive and produces bad intelligence, but defenders of the secret government can wave away such concerns by saying, more or less, You don't know what we know.

What the Church Committee did was to eliminate this inequality by wrenching an entire segment of the state into the light of day. It created a universally accepted set of facts, a canonical public record that turned the secret conversations of the powerful and initiated into the material for a broad debate. It brought the world of intelligence into the public sphere, the place where self-governance ought to take place.

Selling a contemporary inquiry modeled on the Church Committee won't be easy. Since the mid-1970s the right wing has crafted a deeply distorted but potent fable about its impact and legacy. The tale goes like this: the inquisition pursued by the Church Committee subjected intelligence agencies to scorn and burned the agents and analysts. "In the years that followed, it was extremely difficult to get FBI agents to volunteer for counterterrorism assignments," argued two ex-FBI officials in a March op-ed in the Washington Times. "The risk-avoidance culture and excessive restrictions on gathering intelligence that resulted from the Church hearings and other congressional attacks on the intelligence community were major factors in our failure to prevent the Sept. 11 attacks.... [A] new Church Committee-like public inquiry might easily have a similar chilling effect on our ability to recruit good people for future counterterrorism activities."

It's not hard to find lots of people within the intelligence community who will give you more or less the same line. Richard Clarke has little patience for it. "What bothers me," he says, "is the CIA's tendency whenever they're criticized to say, If you do your job, if you do oversight seriously--which Congress almost never does--then we'll pout. Some of us, many, will not just pout; we'll retire early. Our morale will be hurt." And if morale is hurt and the agencies are gutted, they argue, the country will be exposed to attack. In other words: "If you, Congress, do oversight, then we'll all die. Can you imagine FEMA or the agricultural department saying we're all going to retire if you conduct oversight?" Clarke asks in disbelief.

The principle of oversight aside, the right-wing story about the committee ruining intelligence capabilities for a generation posits a golden age of über-competent intelligence-gathering that simply never existed. The activities described in the committee report, more often than not, have a kind of Keystone Kops flavor to them. "From its beginning," says Clarke, "when [the CIA] does covert action as opposed to clandestine regularly fucks up. I remember sitting with [Defense Secretary] Bob Gates when he was deputy national security adviser, and he said, I don't think CIA should do covert action; CIA ought to be an intelligence collection and analysis [agency]."

At the peak of its cold war powers, the American security apparatus was able to attain all kinds of information about the Russians (secret information that KGB files have subsequently shown the Russians knew we knew) but was unable to learn the most basic facts about "the enemy." We failed to anticipate the invasion of Afghanistan and routinely overestimated the strength of the Soviet economy. Indeed, the failure to understand and foresee the internal pressures on the Soviet Union may be the greatest failure of US cold war intelligence, one that had absolutely nothing to do with the Church Committee and its aftermath.

In his insightful 1998 book Secrecy, neocon patron saint Daniel Patrick Moynihan argues that by cordoning off discrete pieces of information, secrecy actually impedes intelligence-gathering rather than facilitates it. "Secrecy is for losers," Moynihan concludes. "For people who don't know how important information really is. The Soviet Union realized this too late.... It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations."

It's hard to imagine that the White House would be enthusiastic about such an undertaking. Obama has insisted, routinely, unwaveringly, that he is "more interested in looking forward looking backwards." At one level this seems a shocking abrogation of the executive branch's chief constitutional responsibility, to "take care that the laws be faithfully executed." But presumably the thinking goes something like this: the president has a limited amount of political capital, and he can spend it on major, once-in-a-generation reforms of the American social contract--universal healthcare and cap and trade--or he can spend it pursuing justice for the perpetrators of the previous administration's crimes. As morally worthy as the latter might be, it won't get anyone healthcare or stop the planet from melting; it won't provide a new foundation for progressive governance.

But as self-consciously pragmatic as this posture is, it's proving wildly impractical to implement. The reason is that the White House has limited control over when and what is revealed about crimes and misdeeds of the Bush years, and every time a new revelation hits the papers, such as the recent disclosures of Blackwater's involvement with the CIA assassination unit and interrogators' use of "mock executions," it dominates the news cycle. Since the White House itself has defined such revelations as a "distraction," every time they are in the news it is, by its own definition, distracted.

The benefit of a new Church Committee would be that it would corral these "distractions" into a coherent undertaking, initiated in Congress, within a fixed time period. It would also provide a framework for systematic investigation of the policies rather than selective prosecutions of those at the bottom of the hierarchy who carried them out.

"Because try as Obama [may] to avoid investigations and looking backwards, he's being dragged into it over and over again," says Clarke. "It would be better for him if Congress just said, You know, Barack, we're just gonna provide these wise men, give them subpoena authority. It's not on you, Barack. There was this excess and that excess and a pattern of excesses, and you know, it clears the air.... Now you have the impression that there's a bunch of stinking turds under the rug."

Perhaps the greatest argument for such an undertaking is the simplest: citizens have a right to know what crimes have been committed in their names. Many of the relevant and damning facts have already been conclusively established. We know we waterboarded Abu Zubaydah, a borderline mentally ill member of the Al Qaeda entourage, eighty-three times in one month. We know the NSA spied on an untold number of Americans without warrants. We know that the CIA sent captured detainees to the custody of regimes with abysmal human rights records, with the explicit understanding they would be tortured.

The Church Committee came at a time when the public was in the midst of a wrenching (and necessary) loss of innocence. But in our age, secret government crimes and plots are almost a cliché. Polling shows trust in government has returned roughly to its mid-'70s nadir. The danger now isn't naïveté but cynicism--that we just come to accept that the government will commit crimes in our name under the cover of secrecy and that such activities are more or less business as usual, about which nothing can be done. But something can be done. Something must be done. And Congress should do it.

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