and Sen. Feinstein: The CIA Scandal Began Because the Agency Misled Congress About Torture & Feinstein: CIA searched Intelligence Committee computers 12&11MAR14 http://bucknacktssordidtawdryblog.blogspot.com/2014/03/sen-feinstein-cia-scandal-began-because.html
Elizabeth Goitein: President Obama is protecting senior CIA officials and himself -
Transcript
PAUL JAY, SENIOR EDITOR, TRNN: went to see Dianne Feinstein, chair of the Senate Intelligence Committee.Welcome to The Real News Network. I'm Paul Jay in Baltimore.In
January, according to Dianne Feinstein, the ranking member of the
Senate Intelligence Committee, that the head of the CIA, John Brennan,
came to her and told her some of her staffers may have broken the law by
getting access to secret documents that had been revealed to Senate
investigators but, according to Brennan, shouldn't have been shown to
Senate staffers, and that might be illegal. Why did he make this trip?
Why did he tell Dianne Feinstein this? Because it led to Dianne
Feinstein coming to the conclusion and finding out that the CIA had
actually been spying on Senate computers, and had even removed records
from those--and files from those computers.Now joining us
to give us some background and discuss all of this and joining us now
from New York is Elizabeth Goitein. She's codirector of the Liberty and
National Security Program at the Brennan Center for Justice at New York
University Law School.Thanks for joining us very much, Elizabeth.ELIZABETH GOITEIN, CO-DIR., LIBERTY AND NAT'L SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE: Thank you.JAY: So why the heck does Brennan go and say this to Feinstein? I mean, look at the hornets nest he let loose.GOITEIN:
That's right. Well, he believes or the CIA believes that the Senate
staff, the committee staff, may have committed a crime in some way,
shape, or form. We don't really know the details of that, because John
Brennan went to Senator Feinstein, he did not go to the American public.
All we're getting is leaks, essentially, from CIA officials to
reporters. But from what we can piece together, the CIA
believes and it filed a crimes report with the Justice Department that
Senate committee staff, while investigating the CIA's torture program,
in some way it got unauthorized access to a document or a set of
documents which was a draft CIA review of the very same torture program.And
what's so interesting about all of this is that this draft review
basically said a lot of the same things, it's been reported, as the
Senate's own review, namely, the brutality of these so-called enhanced
interrogation techniques were not justified by any security benefit. The
CIA does not like the fact that Senate staffers obtained these draft
reports, and the CIA believes that this was unauthorized.There's a very different story coming out of the Senate Intelligence Committee, though.JAY:
Yeah. Dianne Feinstein, in her statement on March 11, essentially said
this is actually all meant just to intimidate the Senate committee,
never--and she also went on to say that much of it, of what the CIA has
done is likely to be illegal. Here's a few quotes from her speech.~~~SENATOR
DIANNE FEINSTEIN, CHAIR, SENATE INTELLIGENCE COMMITTEE: As I have
detailed, the CIA has previously withheld and destroyed information
about its Detention and Interrogation Program, including its decision in
2005 to destroy interrogation videotapes over the objections of the
Bush White House and the Director of National Intelligence. . . . My
letter also laid out my concern about the legal and constitutional
implications of the CIA's actions. Based on what Director Brennan has
informed us, I have grave concerns that the CIA's search may well have
violated the separation of powers principles embodied in the United
States Constitution, including the Speech and Debate clause. It may have
undermined the constitutional framework essential to effective
congressional oversight of intelligence activities or any other
government function. . . . Besides the constitutional implications, the
CIA's search may also have violated the Fourth Amendment, the Computer
Fraud and Abuse Act, as well as Executive Order 12333, which prohibits
the CIA from conducting domestic searches or surveillance.~~~JAY:
So she's straightforwardly accusing the CIA and the leadership, which
means John Brennan, of breaking the law in what they've done in terms of
trying to prevent the Senate from talking about, perhaps releasing this
6,300-page report the Senate has produced detailing the activities of
the CIA's torture program. But many people think that that 6,300 pages
also contains information that would also raise the issue of legal
liability of various people in the CIA, and that would also, again,
include John Brennan.GOITEIN: Right. Well, first things
first. Senator Feinstein denied that her staff had in some way broken
into the CIA's computer system or otherwise gotten unauthorized access
to this draft CIA review. She says that the CIA actually provided these
documents to the Senate staff. They may have done so inadvertently, but
they did that. And so their access was in fact authorized.But
in investigating how the staff actually got these documents, the CIA
was monitoring or searching the staff's computer network, a dedicated
computer network for the staff. And that's where Senator Feinstein is
saying that the CIA overstepped, constitutionally overstepped, violated
the separation of powers by secretly spying on Senate investigators. And
if her version of events is correct, she's absolutely right. I mean,
that would be a crisis of constitutional proportions if that's really
what the executive branch did. And, as you say, all of
this kerfuffle is over a document that potentially reveals very serious,
potentially criminal wrongdoing by the CIA. So you can see why the
stakes are so high.JAY: And, again, John Brennan was part of this when he was in the CIA in the early 2000s.Now,
this document, the 6,300 pages, if it went public, a lot of this would
become clear. It's been suggested that President Obama has not
declassified this document, because even though he claims or says he's
in support of declassifying it, he seems to neglect the fact that he's
the one that could do it. Of course, the Senate could do it, too, but
it's a far more complicated process.GOITEIN: That's
exactly right. I mean, the president without question has the ability to
declassify the report in a minute. All he would have to do is sign a
piece of paper, essentially. He could declassify the report.At
that point, it would become very hard for the Senate Intelligence
Committee to claim some kind of reason to continue to keep the report
non-public. That would sort of remove any possible excuse for the
committee to keep the report secret.But right now--but the
president has not done that. Right now the Senate Intelligence
Committee's rules allow it to declassify the document, but the
president, the executive branch, does not recognize the committee's
authority to do that. So that would be picking a huge fight if the
committee were to do that. And, also, there are members of the committee
who don't want this report to be public. And so it's not clear that
there would even be the votes on the committee to get the report out
there.JAY: Does it have to be unanimous?GOITEIN: That's a good question. I don't think so, but I could be wrong.JAY:
Yeah, we're checking into that rule. But someone who was involved in it
told us it has to be unanimous, so it makes it even more difficult.GOITEIN: Interesting. Yeah.JAY: We may be wrong. We're checking that.But
let's go back to Feinstein in all of this. You know, people on the Hill
and people in the know have practically considered Dianne Feinstein a
mole of the CIA on the Hill because she's been so pro-CIA, protecting
them on all the intelligence gathering and various things. Now
she's--some of the language she's using couldn't be stronger. Why is she
finally standing up to the CIA this way?GOITEIN: Well,
the only thing that she defends more strongly than the prerogatives of
the intelligence community are the institutional prerogatives of the
Intelligence Committee. And I believe that she takes it quite
personally--I think she may have even said that--when her committee is
thwarted or lied to or misled or in other ways messed with by the
agencies that the committee is supposed to be overseeing. And there are
at least two examples of that that I think are relevant here. First, she
mentioned in her speech that when the committee was briefed about the
interrogation techniques back in 2006, they were not given the full
story, and that later, when they found out, in 2007, that there was more
to these interrogation techniques than they had originally been
informed about, I think that kind of got her started. And then I think
all of this has culminated with the alleged spying/monitoring/searching
of the staff's dedicated computer networks by the CIA. I think that is a
level of interference with the committee's activities that she is not
willing to tolerate.JAY: But does it seem to you that she
would have sat on all of this and let the report not be declassified if
Brennan hadn't gone to her and taken up a stick and poked her in the
eye?GOITEIN: Well, I'm not sure that that is the case. I
think that she certainly wouldn't have gone to the floor and, you know,
made this entire thing public. I think the issue of whether or not
actually the report itself becomes public, it's really been a game of
hot potato between the executive branch and the committee because it is
such a loaded document. And the responsibility involved in actually
getting this to the American public is something that, frankly, both the
committee and the administration seem to be trying to take off the
table.JAY: Well, I take your point that perhaps Senator
Feinstein, as much as she does not want to weaken the CIA, even less
does she want to weaken the Senate. And this goes to the core of whether
the Senate is going to have the power to have some civilian oversight
of the CIA. But it seems to me President Obama is kind of
so far avoiding being the target in all this. But if President
Obama--and many people think he's been trying to protect John Brennan
and perhaps other people in the CIA--but don't you think--at least I
think, from what I'm learning of this, all of this, that there's someone
else that President Obama is trying to defend, and it's more important
to defend this person than to defend the principle of civilian
oversight. And that person is President Obama, because if this thing
goes public and people realize the extent of the illegality, who the
heck has been protecting them and didn't--and who knew this, meaning the
president, didn't turn this over to Holder, didn't prosecute, the same
way he wouldn't prosecute Bush and Cheney, that this makes his whole
lack of prosecution become greatly egregious, and he's protecting
himself more than anyone, including protecting, as I say, the principle
of civilian oversight.GOITEIN: I would agree that he's
protecting himself, but for a slightly different reason. I think if this
report were to be made public, there would be real issues of legal
jeopardy for CIA officials, potentially, anyway, and, you know, far
beyond the potential, you know, criminality that has come up before and
the Justice Department has decided not to investigate. This report could
sort of blow the lid on that. And to the extent that there might be
legal jeopardy for CIA officials, the CIA is going to revolt, I think,
if that is made public. And if President Obama's protecting himself
because a revolt by the intelligence community is not something he wants
on his hands, you can hardly blame him for that.JAY: Yeah. If anyone watched Scandal
and--what is it? B13? The ones that are going to spy on and discipline
the president. I'm not sure if I have the name of the agency right. That
may be somewhat exaggerated, but one can imagine what Obama might be
looking at if the whole intelligence community--. Yeah.GOITEIN:
Yeah. I mean, the intelligence community is sort of the 800-pound
gorilla in the room. It's--to mix my metaphors, it's sort of the tail
that wags the dog of the government, of national security policy, and
there's no president that wants to stand up to the intelligence
community. It's too powerful, it's too--.JAY: Yeah. I take
your point and I agree with you, but I would just add: knowing what's
in that report--and more or less, President Obama has to have known all
of this--he still appoints John Brennan to be head of the CIA. So, you
know, there's political fallout here as well.GOITEIN: He's
involved. He's trying to say he's not involved. He even said the other
day, well, I'm not going to wade into this. He's in it. He's very much
in it. It's his CIA. And the reason why--apparently, the reason why the
CIA apparently believes that the staffers were not supposed to have this
document is because it was subject to executive privilege. Executive
privilege is a presidential privilege. It has to be asserted by the
president. So this is all in his wheelhouse, whether he likes it or not.JAY:
And when Feinstein says the CIA's trying to intimidate us, perhaps
that's what John Brennan's visit was all about, to try to keep a lid on
all this. And I guess one--it's very interesting. Knowing all of this,
Feinstein does blow the lid off it.GOITEIN: Right. I mean,
she thinks it's time for a confrontation. This has come to a head, and
it has come to a head in a very spectacular and sensational way, there's
no question.JAY: Alright. Thanks very much for joining us, Elizabeth.GOITEIN: Thank you.JAY: And thank you for joining us on The Real News Network.Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice's Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law. Before joining the Brennan Center, Liza served as counsel to Senator Russell Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee, and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. Her writing has been featured in major newspapers including the New York Times, the Wall Street Journal, the Washington Post, USA Today, the Boston Globe, the San Francisco Chronicle, and the Philadelphia Inquirer, as well as prominent outlets such as Roll Call, the National Law Journal, Salon, POLITICO, Time, and the Huffington Post. She has appeared on national television and radio shows including the The Rachel Maddow Show, The Today Show, All In with Chris Hayes, Up with Steve Kornacki, PBS NewsHour, and National Public Radio's Morning Edition and On The Media. Liza graduated from Yale Law School and clerked for the Hon. Michael Daly Hawkins on the Court of Appeals for the Ninth Circuit.
