One complaint most Republican members of the Senate Intelligence Committee made about the scathing Torture Report released by the committee last month is that it did "not offer any recommendations for improving intelligence interrogation practices, intelligence activities, or covert actions." On Dec. 30 -- after the release of the report, and (more important) after any opportunity to use her position as chairwoman of the Intelligence Committee to implement change passed --Dianne Feinstein sent a letter to President Obama making her own recommendations.
Feinstein's first recommendation -- basically to formalize into law the Executive Order the president issued on his second day in office banning most kinds of physical torture -- has received the most attention. It aspires to "close all torture loopholes," without saying that the biggest "torture loophole" remains executive branch unwillingness to enforce laws prohibiting torture that are already on the books.
DOJ won't do that, in large part, because those illegal actions were authorized by presidential order as part of a covert operation.
Which brings us to the more interesting part of Feinstein's recommendations: a series of measures, which the president can implement on his own authority, to improve executive branch management of covert operations. In addition to more readily sharing information with Congress (which Obama doesn't even do on drone strikes), strengthening CIA's Office of Inspector General (the current inspector general retired almost at the moment Feinstein released this letter), videotaping interrogations and improving CIA management and accountability, Feinstein recommended that the White House's National Security Council improve its oversight of covert operations.
That last recommendation seems to stem from one of the findings from the report that "CIA impeded effective White House oversight and decision-making."
The report supported that claim with some interesting details: "no CIA officer, up to and including CIA Directors George Tenet and Porter Goss, briefed the president on the specific CIA enhanced interrogation techniques before April 2006," the summary findings claimed. Secretary of State Colin Powell and Secretary of Defense Donald Rumsfeld, "both principals on the National Security Council - were not briefed on program specifics until September 2003," it added, in part because Powell would have "blown his stack" had he learned CIA was using torture. CIA even gave inaccurate information at a July 29, 2003, Principals Committee meeting where Bush's top aides reauthorized torture.
These details would seem to support the case that the the White House and NSC were letting CIA run wild torturing people. Until you note that the summary language makes it clear the White House itself decided to keep the torture program hidden from Powell. Or you read the fine print that describes how White House counsel Alberto Gonzales first eliminated any mention of waterboarding from talking points that would be used to brief the president. Then someone -- the report doesn't say who -- informed "'Dr. Rice ... that there would be no briefing of the President on this matter,' but that [CIA Director George Tenet] had policy approval to employ the CIA's enhanced interrogation techniques." That is, some select members of the Cabinet and the president may have been insulated from briefings on the specifics of the torture (though in his memoir, President Bush disputes even this claim), but that was all driven by White House decisions to keep them in the dark.
Moreover, the story the Torture Report presents of a White House entirely insulated from the gruesome details of torture rests on the Senate Intelligence Committee's own willingness to remain in the dark.
During the course of the study, CIA withheld (or stole back) 9,000 documents they said involved White House equities. Feinstein's committee never demanded the CIA turn over those documents, nor even requested the White House formally invoke executive privilege over them. In other words, the Senate Intelligence Committee allowed itself to remain ignorant about just how ignorant the White House and NSC really were about torture.
The Senate report did not even cite from the Department of Justice's Office of Professional Responsibility's report on John Yoo's role in authorizing torture, which showed he consulted with Alberto Gonzales and Vice President Cheney counsel David Addington at key moments when writing the torture memos (something that the House Judiciary Committee had questioned both Yoo and Addington about in 2008). Addington's appearance at that hearing was notable for the discussion of whether the Office of the Vice President was a "barnacle branch" of government immune from congressional oversight. "Congress lacks the constitutional power to regulate by a law what a Vice President communicates in the performance of the Vice President’s official duties," Addington presented in a letter to the committee. But he did at least show up and dodge questions about his role in torture.
All jokes about barnacle branches aside, the Bush White House's unwillingness to provide -- and the Senate Intelligence Committee's failure to obtain -- more information about White House involvement in torture illustrates the problem with Feinstein's recommendation (after she lost most of her power to force the issue) that the White House exercise more oversight over covert operations. Covert operations in general -- and covert operations authorized by the Presidential Authorization used for torture in particular -- are about deniability. After 9/11, CIA worked together with the White House to craft a programmatic "Finding" authorizing a range of counterterrorism policies that would give CIA significant flexibility in implementing those policies, while giving the White House enhanced deniability about their conduct.
The White House used that "finding" not just to authorize torture, but also to authorize CIA's drone-killing of top al-Qaida officials, a policy Obama expanded. While public reports have claimed that drone strikes were micromanaged by Obama's NSC -- more particularly, by current CIA Director John Brennan -- they still suffered from some of the same problems of accountability that torture did, especially false claims about results. That happened under Feinstein's tenure at the Intelligence Committee.
So while it's nice to recommend -- after losing the ability to force the issue -- that the president make sure his White House exercises more oversight over covert operations, decades of history, and Sen. Feinstein's own tenure as Intelligence Committee chair, suggest that's not the way it works. So long as the president is permitted to demand vast powers to authorize covert operations with whatever oversight it deigns to accept from the Intelligence Committee, we will continue to have botched, ill-considered and egregious covert ops. That's the nature of barely checked executive power.
Which means Feinstein's recommendations may serve to accurately assess the symptoms of what went wrong with torture -- and many other covert operations -- but do little to address the underlying power structures that will permit such atrocities from happening in the future.
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