[Infowarrior] - President weakens espionage oversight

[Richard Forno]

President weakens espionage oversight
Board created by Ford loses most of its power
By Charlie Savage
Globe Staff / March 14, 2008

http://www.boston.com/news/nation/washington/articles/2008/03/14/president_w
eakens_espionage_oversight/?page=full


WASHINGTON - Almost 32 years to the day after President Ford created an
independent Intelligence Oversight Board made up of private citizens with
top-level clearances to ferret out illegal spying activities, President Bush
issued an executive order that stripped the board of much of its authority.
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The White House did not say why it was necessary to change the rules
governing the board when it issued Bush's order late last month. But critics
say Bush's order is consistent with a pattern of steps by the administration
that have systematically scaled back Watergate-era intelligence reforms.

"It's quite clear that the Bush administration officials who were around in
the 1970s are settling old scores now," said Tim Sparapani, senior
legislative counsel to the American Civil Liberties Union. "Here they are
even preventing oversight within the executive branch. They have closed the
books on the post-Watergate era."

Ford created the board following a 1975-76 investigation by Congress into
domestic spying, assassination operations, and other abuses by intelligence
agencies. The probe prompted fierce battles between Congress and the Ford
administration, whose top officials included Dick Cheney, Donald Rumsfeld,
and the current president's father, George H. W. Bush.

To blunt proposals for new laws imposing greater congressional oversight of
intelligence matters, Ford enacted his own reforms with an executive order
that went into effect on March 1, 1976. Among them, he created the
Intelligence Oversight Board to serve as a watchdog over spying agencies.

"I believe [the changes] will eliminate abuses and questionable activities
on the part of the foreign intelligence agencies while at the same time
permitting them to get on with their vital work of gathering and assessing
information," Ford told Congress.

The board's investigations and reports have been mostly kept secret. But the
Clinton administration provided a rare window into the panel's capabilities
in 1996 by publishing a board report faulting the CIA for not adequately
informing Congress about putting known torturers and killers in Guatemala on
its payroll.

But Bush downsized the board's mandate to be an aggressive watchdog against
such problems in an executive order issued on Feb. 29, the eve of the
anniversary of the day Ford's order took effect. The White House said the
timing of the new order was "purely coincidental."

Under the old rules, whenever the oversight board learned of intelligence
activity that it believed might be "unlawful or contrary to executive
order," it had a duty to notify both the president and the attorney general.
But Bush's order deleted the board's authority to refer matters to the
Justice Department for a criminal investigation, and the new order said the
board should notify the president only if other officials are not already
"adequately" addressing the problem.

Bush's order also terminated the board's authority to oversee each
intelligence agency's general counsel and inspector general, and it erased a
requirement that each inspector general file a report with the board every
three months. Now only the agency directors will decide whether to report
any potential lawbreaking to the panel, and they have no schedule for
checking in.

Suzanne Spaulding, a former deputy counsel at the CIA who has worked as a
congressional staff member on intelligence committees for members of both
parties, said the order "really diminishes the language that calls on the
Intelligence Oversight Board to conduct independent inquiries," leaving the
panel as potentially little more than "paper pushers."

And Elizabeth Rindskopf Parker, a former general counsel at both the CIA and
the National Security Agency who is now the dean of the University of the
Pacific law school, said it was unwise for the Bush administration to
undermine the Intelligence Oversight Board at the same time that the
administration has been pushing for fewer restrictions on its intelligence
powers.

"An organization like this gives some level of comfort that there is an
independent review capability," Parker said. "Changes like this appear to
water down an organization that contributes to the public's confidence."

But Tony Fratto, a White House spokesman, denied that the order reduced the
authority and independence of the panel.

Fratto pointed to a federal statute that makes it a general duty of all
government officials to report lawbreaking to the Justice Department.
Because of this, he said, there is still a "widely understood background
presumption" that the board can contact the attorney general even though
Bush deleted the authority to make criminal referrals from its list of core
responsibilities.

Fratto also said the changes merely updated the board's responsibilities
after Congress in 2004 created a director of national intelligence to run
the intelligence community. The order says the director is the person
responsible for making any criminal referrals to the Justice Department.

Still, critics contend that the director of national intelligence cannot
play the same watchdog role as the oversight board because he is part of the
intelligence world, not independent from it, and so there may be occasions
in which he has signed off on an activity whose legality might be questioned
by outsiders.

Some analysts said the order is just the latest example of actions the
administration has taken since the 2001 terrorist attacks that have scaled
back intelligence reforms enacted in the 1970s.

In his 1976 executive order, for example, Ford also banned foreign
intelligence agencies, such as the National Security Agency, from collecting
information about Americans. The Bush administration bypassed that rule by
having domestic agencies collect information about Americans and then hand
the data to the NSA, The Wall Street Journal reported this week.

Ford's order also banned assassination. But Bush authorized the CIA to draw
up a list of Al Qaeda suspects who could be summarily killed.

The administration decided that such targeted killings were an exception to
the rule because it was wartime.

In 1978, Congress enacted a law requiring warrants for all wiretaps on
domestic soil. But now spies are free to monitor Americans' international
calls and e-mails without court supervision if the wiretaps are aimed at
targets overseas.

In 1980, Congress enacted a law requiring that the full House and Senate
intelligence committees be briefed about most spying activities. The Bush
administration asserted that it could withhold significant amounts of
information from the committees, briefing congressional leaders instead.

Finally, executive orders were once widely understood to be binding unless a
president revoked them, an act that would notify Congress that the rules had
changed. But the administration has decided that Bush is free to secretly
authorize spies to ignore executive orders - including one that restricts
surveillance on US citizens traveling overseas - without rescinding them.

Some critics of the post-Watergate era have contended that its
investigations and reforms went too far. For example, Cheney, who was Ford's
chief of staff, said in December 2005 that "a lot of the things around
Watergate and Vietnam . . . served to erode the authority, I think, the
president needs to be effective, especially in a national security area."

But Frederick A. O. Schwarz Jr., the former chief counsel to the Senate
committee that undertook the 1975-76 investigation into intelligence abuses,
said that by rolling back the post-Watergate reforms, the Bush
administration had made intelligence abuses more likely to occur.

"What the Bush administration has systematically done is to try to limit
both internal oversight - things like the Intelligence Oversight Board - and
effective external oversight by the Congress," Schwarz said, adding, "It's
profoundly disappointing if you understand American history, and it's
profoundly harmful to the United States."
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