[Infowarrior] - OpEd: Congress’s Torture Bubble

[Richard Forno]

May 13, 2009
Op-Ed Contributor
Congress’s Torture Bubble
By VICKI DIVOLL

(Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist  
Center, was the general counsel of the Senate Intelligence Committee  
from 2001 to 2003. She teaches government at the United States Naval  
Academy. )

http://www.nytimes.com/2009/05/13/opinion/13divoll.html?_r=1&pagewanted=print

JUST four members of Congress were notified in 2002 when the Central  
Intelligence Agency’s “enhanced interrogation techniques” program was  
first approved and carried out, according to documents released by the  
agency last week. They were Senators Bob Graham and Richard Shelby and  
Representatives Porter Goss and Nancy Pelosi, then the chairmen and  
ranking members of the Senate and House intelligence committees — the  
so-called “Gang of Four.” Each was briefed orally and it was  
understood that they were not to speak about the program with anyone,  
including their colleagues on the committees.

It’s logical to ask, so what if it was only four members? If they  
objected to the program, why didn’t they take steps to change it or  
stop it? Maybe they should have tried. But as a practical matter,  
there was very little, if anything, the Gang of Four could have done  
to affect the Bush administration’s decision on the enhanced  
interrogation techniques program. To stop it, they needed the whole  
Congress.

The framers of the Constitution gave aggregate, not individual, powers  
to the legislative branch. For the Gang of Four to have waved their  
arms and yelled at mid-level C.I.A. briefers, or written harsh letters  
to the president and vice president, would have been useless. Four  
members do not have the ability, on their own, to bring the great  
weight of the constitutional authority of Congress to bear.

There are C.I.A. “covert action” activities — like the detention and  
interrogation program — that because of their significance, and risks,  
require participation from both the White House and the Congressional  
intelligence committees in their initiation and oversight. The  
National Security Act defines covert action programs as those designed  
“to influence political, economic, or military conditions abroad,  
where it is intended that the role of the United States government  
will not be apparent or acknowledged publicly.”

The C.I.A. is prohibited by law from conducting covert action  
activities without express presidential approval — and this is not a  
requirement that the agency takes lightly. The National Security Act  
also requires that when the president approves a covert action program  
the two Congressional intelligence committees shall be “notified.” The  
committees do not have disapproval power, nor can they force changes  
at that time. But the law does require the executive branch to provide  
timely, written notice to the full committees — which together consist  
of fewer than 40 members — of the plans.

It is unlawful for the executive branch to limit notification, as it  
did here, to the Gang of Four. There is no such entity recognized in  
the National Security Act. Federal law does provide, however, for  
notification of fewer lawmakers than the full intelligence committees,  
but only when “extraordinary circumstances affecting vital interests  
of the United States” are at stake. Under those very limited  
situations, the notification may be to the “Gang of Eight,” which  
includes the majority and minority leadership of the House and Senate,  
in addition to the intelligence committee leaders.

It should be noted that there is a legal argument that the  
interrogation program was merely foreign intelligence “collection,”  
and not “covert action” at all, because it was used to elicit  
information that already existed in the minds of the detainees. In  
that case, there is no exception in the law for Gangs of Four or  
Eight, and every member of the two committees should have been notified.

What it boils down to is this: many of the laws mandating  
Congressional notification of covert action programs were enacted  
after the Senate’s Church Committee hearings in the late 1970s had  
revealed widespread abuses by the intelligence agencies domestically  
and overseas. The House and Senate intelligence committees — created  
at that time — were designed to be the “eyes and ears” of the full  
Congress on significant intelligence activities. These committees were  
entrusted with the faith of the American people to oversee aggressive  
intelligence operations done in all of our names, and to ensure that  
they are necessary, effective and consistent with American laws and  
values.

But the narrow Gang of Eight exception, or worse, the Gang of Four,  
has swallowed up the notification rule. This is a trend that began  
before the Bush administration, and the types of programs about which  
the Church Committee was most concerned now receive the least  
oversight — in many cases, no oversight — by Congress. It is  
reasonable for us to wonder how many other covert action programs the  
Bush administration kept from the committees.

One might ask whether it was just too risky to share information about  
the interrogation program with so many members of Congress. Isn’t four  
better than 40, if we must keep this secret? It is true that the Gang  
of Eight exception was included in the law to give some flexibility,  
in a subset of cases, to the executive branch to limit the number of  
legislators who receive a notification, at least initially. Sometimes,  
for example, if an operation is imminent — like the capture of an al  
Qaeda leader — short-term security may require it to be held very  
closely.

But there is nothing in the legislative history of the Gang of Eight  
exception that supports the use made of it by the Bush administration  
— to shield, indefinitely, a politically controversial program from  
Congressional scrutiny. The exception has been abused to the point  
where it no longer has meaning, and Congress should examine whether it  
should be clarified or even eliminated.

If we do keep it, Congress should spell out in detail the very limited  
circumstances in which a Gang of Eight briefing may be given, and  
permit such secrecy for only a limited time. Only short-term  
operational security — not a controversial policy choice — should  
justify a temporary close hold.

Of course, the real reason that notifying four members of Congress was  
better than 40 to the Bush White House is crystal-clear — to eliminate  
political pushback. Check the box that Congress was informed just in  
case, someday, the program becomes public and things get rough. But do  
so in a way that the legislative branch is not in a position to cause  
any trouble.

In Article I of the Constitution, the framers gave Congress two  
extraordinary powers over the executive branch — the power of the  
purse and the power to make laws. It is unconstitutional for the  
executive branch to spend one dime on a program for which Congress has  
not appropriated funds. And if Congress passes a law forbidding the  
executive branch from engaging in an activity, it must stop, or people  
go to jail.

But four members cannot stop financing and ban activities on their own  
— that takes the whole Congress. So what might the four have done?  
They could have demanded that the full committees receive the  
briefings and that more information be provided. If the White House  
objected, they could have told their colleagues anyway. The committees  
then could have put a classified budget provision in the intelligence  
authorization bill for fiscal year 2003 cutting off money for the  
program, or delineating how the C.I.A. must treat detainees.

The speech and debate clause of the Constitution shields senators and  
representatives from civil and criminal liability in the performance  
of their legislative duties. It would have protected those members if  
they had decided to march down to the House or Senate floor and  
denounce the Bush administration for engaging in torture, though that  
approach not only could have harmed C.I.A. operations, but also surely  
would have been political suicide.

But would the full committees — or even the full Congress — have taken  
action to stop the enhanced interrogation program if they had been  
informed of it in 2002? Admittedly, the memory of 9/11 was very raw  
then and we cannot know if things would have turned out differently.

We do know, however, that the full committees weren’t briefed on the  
C.I.A. detention and interrogation program until 2006, on the same day  
that the program was made public by President George W. Bush. Since  
then, the committees have tried, so far without success, to amend  
federal law to hold the C.I.A. to the same strict interrogation  
standards for military intelligence collection spelled out in the Army  
Field Manual.

Even if the results had been the same, we would now at least have the  
cold comfort of knowing that our constitutional system of checks and  
balances had been put into play before a program that risked our  
fundamental values was carried out on our behalf. The framers of the  
Constitution never intended for small numbers of legislators to be  
culled from Congress and expected to act as a check on the excesses of  
the executive.

Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist  
Center, was the general counsel of the Senate Intelligence Committee  
from 2001 to 2003. She teaches government at the United States Naval  
Academy.