Tag: Separation of Powers

Apr 09

Part of Torture Report To Be Released, Someday

Cross posted from The Stars Hollow Gazette

The Senate Intelligence Committee voted on Thursday. by 11 – 3, to declassify portions of a study into the Central Intelligence Agency’s use of torture on detainees suspected of being involved in terrorism.

CIA officers subjected some terrorism suspects the agency held after the Sept. 11 attacks to interrogation methods that were not approved by either the Justice Department or their own headquarters and illegally detained 26 of the 119 in CIA custody, the Senate Intelligence Committee has concluded in its still-secret report, McClatchy has learned.

The spy agency program’s reliance on brutal techniques _ much more abusive than previously known _ and its failure to gather valuable information from the detainees harmed the U.S.’s credibility, according to the committee’s findings in its scathing 6,300-page report on the CIA’s interrogation and detention program.

The agency also repeatedly misled the Justice Department while stymieing Congress’ and the White House’s efforts to oversee the secret and now-defunct program, McClatchy has learned.

In all, the committee came to 20 conclusions about the CIA’s harsh interrogation tactics after spending six years and $40 million evaluating the controversial program, which began during the Bush administration. [..]

The finding that 26 detainees were held without legal authorization and the confirmation that the CIA in some cases went beyond the techniques approved by the Justice Department might fuel legal challenges.

The committee may have approved the partial release but have deferred to the president to decide just what will be made public and when.

It’s unclear, however, precisely how the declassification process will unfold. The White House could directly oversee what should be released, given the tensions between the committee and the CIA over the report. Or the White House could cede even more control to the CIA, which could mean more details will be kept under wraps. [..]

Caitlin Hayden, a spokeswoman for the White House National Security Council, said the administration’s position “remains that the executive summary and the findings and conclusions of the final RDI (Rendition Detention and Interrogation) report should be declassified, with any appropriate redactions necessary to protect national security.”

She said she wouldn’t speculate on a timeframe for declassifying something the White House hasn’t yet received. Some expect the process to take months. [..]

Last week, Brennan indicated the agency’s direct involvement, saying that the “CIA will carry out the review expeditiously” once the committee sends it to the executive branch. [..]

The White House has been more involved than publicly acknowledged, however. For five years, the White House has been withholding more than 9,000 top-secret documents sought by the committee for its investigation, even though Obama hasn’t exercised a claim of executive privilege, McClatchy has reported.

Let’s be very clear what this is report reveals and some of the facts.

These are not state secrets. The report is an extensive investigation into the illegal activities of the CIA post 9/11. These are crimes against the state and humanity that the current Justice Department has refused to prosecute. Torture is a war crime.

The Senate does not need the President of the United States to make them public.

These are the facts about the CIA’s torture program and the executive branch cover up that has done more to disgrace this country and undermine the credibility, integrity, the laws and Constitution. Do no forget that as the Senate and the President continue this macabre dance to cover up these crimes.  

While I agree with Marcy Wheeler and others that those who voted to release that portion of the report deserves credit and is a step in the right direction,I will be greatly surprised if any part of the 6300 pages sees the light of day. Nor will any of those who authorized, justified, ordered or committed the crimes of torturing countless prisoners ever be brought to justice. The days of courageous acts like Senator Mike Gravel are long gone. The cover up will continue. That will be one of the blackest marks on the country, ever.

Mar 14

Torture Cover-up: The CIA and Separation of Powers

Cross posted from The Stars Hollow Gazette

The Central Intelligence Agency is an agency of the executive branch and is subject to congressional oversight as per the Constitution’s

The Senate-CIA Blowup Threatens a Constitutional Crisis

by David Corn, Mother Jones

The allegations of CIA snooping on congressional investigators isn’t just a scandal-the whole premise of secret government is in question.

The CIA’s infiltration of the Senate’s torture probe was a possible constitutional violation and perhaps a criminal one, too. The agency’s inspector general and the Justice Department have begun inquiries. And as the story recently broke, CIA sources-no names, please-told reporters that the real issue was whether the Senate investigators had hacked the CIA to obtain the internal review. Readers of the few newspaper stories on all this did not have to peer too far between the lines to discern a classic Washington battle was under way between Langley and Capitol Hill. [..]

The United States is a republic, and elected officials in all three branches are supposed to be held accountable by those famous checks and balances that school kids learn about in civics classes. When it comes to the clandestine activities of the US government-the operations of the CIA, the other intelligence outfits, and the covert arms of the military-the theory is straightforward: These activities are permitted only because there is congressional oversight. The citizenry is not told about such actions because doing so would endanger national security and render these activities moot. But such secret doings of the executive branch are permissible because elected representatives of the people in the legislative branch monitor these activities and are in a position to impose accountability.

That’s how it’s supposed to work. But since the founding of the national security state in the years after World War II, there have been numerous occasions when the spies, snoops, and secret warriors of the US government have not informed the busybodies on Capitol Hill about all of their actions. In the 1970s, after revelations of CIA assassination programs and other outrageous intelligence agency misdeeds, Congress created what was supposed to be a tighter system of congressional oversight. But following that, the CIA and other undercover government agencies still mounted operations without telling Congress. (See the Iran-Contra scandal.) Often the spies went to imaginative lengths to keep Congress in the dark. More recently, members of the intelligence community have said they were not fully in the know about the NSA’s extensive surveillance programs. Of course, there was a countervailing complaint from the spies. Often when a secret program becomes public knowledge, members of Congress proclaim their shock, even though they had been told about it.

Overall, the system of congressional oversight has hardly (as far as the public can tell) been stellar. And it has raised doubts about the ability of a democratic government to mount secret ops and wage secret wars in a manner consistent with the values of accountability and transparency. What was essential to decent governance on this front was the delicate relationship between congressional overseers and the intelligence agencies.

CIA, Senate and a Constitutional Crisis (if you’ll keep it)

By Peter Van Buren, Firedoglake

Beyond Torture

But we are past the question of torture. What is happening here is a Constitutional crisis. If Feinstein does not have CIA Director Brennan up before her Senate committee immediately, and if she does not call for his resignation and if the president remains silent (“We need to allow Justice to complete its investigation”) then we have witnessed the essential elements of a coup; at the very least, the collapse of the third of the government charged with oversight of the executive.

That oversight- those Constitutional checks and balances- are the difference between a democracy and a monarchy. They are what contains executive power and makes it responsible to the People. But like Jenga, pull out the important one and the whole thing falls.

A Last Question

The only question remaining then is whether the president is part of the coup, or another victim of it. Is he in charge, or are the intelligence agencies? We may have an answer soon. CIA Director Brennan said:

   If I did something wrong, I will go to the president and I will explain to him what I did and what the findings were. And he is the one who can ask me to stay or to go.

So far, the White House response has been to ignore the challenge:

   President Obama has “great confidence” in Brennan, Carney said during his daily briefing. He added that if there has been any “inappropriate activity,” the president “would want to get to the bottom of it.”

Brennan has challenged the president to act. What the president does will tell us much about the future of our democracy. As radio host Guillermo Jimenez has said, “On this Grand Chessboard, it is We the People who are now in check. It’s our move.”

In the words of Benjamin Franklin. “A Republic, if you can keep it.”

Jan 04

Systemic Rot

President Obama signed the National Defense Authorization Act (NDAA) today despite his veto threat. The law now restricts detainee transfers out of military prisons in Afghanistan and Guant√°namo Bay. “Obama attached a signing statement claiming that he has the constitutional power to override the limits in the law,” the New York Times reports. “Despite his objections, Mr. Obama signed the bill, saying its other provisions on military programs were too important to jeopardize.”

Obama’s three page signing statement objected to many parts of the bill. For example, Obama objects to what I’m calling the “Romney battleship preservation” clause:

In a time when all public servants recognize the need to eliminate wasteful or duplicative spending, various sections in the Act limit the Defense Department’s ability to direct scarce resources towards the highest priorities for our national security. For example, restrictions on the Defense Department’s ability to retire unneeded ships and aircraft will divert scarce resources needed for readiness and result in future unfunded liabilities.

But, more troublesome to the president and those of us who want to see Gitmo closed, is the NDAA interferes with his ability to close military detention prisons. He writes:

Several provisions in the bill also raise constitutional concerns. Section 1025 places limits on the military’s authority to transfer third country nationals currently held at the detention facility in Parwan, Afghanistan… Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress. Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief…

[…]

Section 1028 fundamentally maintains the unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This provision hinders the Executive’s ability to carry out its military, national security, and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principles… The Congress designed these sections, and has here renewed them once more, in order to foreclose my ability to shut down the Guantanamo Bay detention facility.

There has been much criticism of the 112th Congress as the worst Congress ever, but writing at Esquire today, Charlie Pierce observes that it is more than just Congress that is out-of-whack when it comes to governance. Presidential signing statements are another alarm warning us that our system of government is broken. Pierce writes:

Yes, Congress has partly tied his hands, and it has done so by making it harder for him to close Gitmo down. But, even against that, the president argues for the supremacy of the executive branch in such matters. That, coupled with a veto warning that was as empty as a toddler’s threat to run away from home, vitiates any case the president might choose to make that what he really wants to do is to protect the Bill Of Rights. The presidency has been allowed to become a dangerous beast over a number of decades, to the point where anyone who seeks it can rightly be presumed to have at least the spark of lawless authoritarianism in him. And, if that spark is there, the presidency will seek it out and bring it to flame. This president is no different.

Despite the conservatives’ deranged bluster, Obama is not acting differently from any other chief executive we’ve had since the end of World War II according to Pierce. For example, the Obama administration has refused to disclose which criteria are used to kill people with drone missile attacks. The legality of the strike that killed American-born Anwar al-Awlaki in Yemen is debatable.

Yesterday, a Freedom of Information Act lawsuit filed by ACLU and the New York Times was rejected by the U.S. District Court for the Southern District of New York. “Judge Colleen McMahon found that though she agrees that debate on the usage of drone strikes should be made in the open, she is unable to force the government to turn over the documents under FOIA”.

In her ruling, McMahon wrote:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States. The Alice-in-Wonderland [sic] nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.

From this Pierce concludes:

This is the way all presidents, most especially including this one, want it to be. This is the way the presidency has insisted on operating ever since the Cold War. This is what you get when you don’t listen to old Ike’s warning, when you let the Kennedys run amuck concerning Castro, when you let Lyndon fake an incident in the Tonkin Gulf, when you impeach Nixon over a burglary and not the illegal bombing of Cambodia, when you let everyone skate on Iran-Contra, when you impeach one president over a blowjob but let another one slide for lying the country into a war, for abrogating treaties and violating international law regarding torture, when you let a sociopath like Richard Cheney anywhere near the levers of power, and when you let a president decide which American lives or dies by standards he declines to share with the rest of us. This is what you get. Barack Obama didn’t sell out the Bill Of Rights today because he’s Barack Obama. Barack Obama sold out the Bill Of Rights today because he’s the president of the United States, and that’s now part of the damn job description.

If the job description for the President of the United States is to sell out the Bill of Rights, then America has more problems than just the worst Congress ever. The separation of powers, our whole system of checks and balances, are rotting away. This is the core of our Constitution.

While many of us on the left trust President Obama to do the right thing. The problem is that Obama will only be at the White House for four more years. Instead of having laws to protect us the abuse of power, we are left with having personalities to protect us from the abuse of power. What happens with the next president? Will he or she ignite that “spark”?

Presidents have proved to be unwilling to relinquish any power secured by their predecessors. For example, in 2008, soon-to-be former Vice President Cheney predicted then President-elect Obama would “appreciate” the expansion of presidential power that happened in the Bush administration. Cheney said:

Once they get here and they’re faced with the same problems we deal with every day, then they will appreciate some of the things we’ve put in place…

I believe very deeply, in a strong executive, and I think that’s essential in this day and age. And I think the Obama administration is not likely to cede that authority back to the Congress. I think they’ll find that given a challenge they face, they’ll need all the authority they can muster.

In turn, then-President-elect Obama said four years ago that he was reluctant to investigate Bush-era abuses of power, citing his “belief that we need to look forward as opposed to looking backwards.”

The inability of neither our partisan Congress nor our self-interested executive branch nor our law-twisted courts to investigate or limit or hold accountable the expansion of presidential power demonstrates a systemic flaw on our republic. This growing inability to hold accountable those serving in our nation’s highest offices allows for more potential abuses of power.

When presidents believe it is necessary to sign bills with caveats, because a veto means throwing needed legislation back to a dysfunctional lawmaking body; when the presidency collects more power and all that is needed for the person in the Oval Office to get a “spark” of authoritarianism to burst into flame; when our federal judges cannot find themselves in a “Catch-22” situation making it impossible to hold the executive branch accountable nor require them to explain their secrecy, then we have more problems than just the worst Congress ever. We’re getting closer to the worst government ever.

The nation’s constitutional core is rotting away.

Cross-posted from Daily Kos.

Sep 02

American’s Unitary Executive, STILL a 4th Branch of Govt unto himself

Confirmed: Cheney’s Role in Approving Torture

Edward M. Gomez; SFGate, Dec 17 2008

“… Dick Cheney isn’t sorry about any of it.” In his ABC News interview he “betrayed no second thoughts – and certainly no remorse – about the policies pursued by the administration that he both served and, according to some, led.

Cheney’s dark side – and ours

Derrick Z. Jackson, Boston Globe Columnist, Sep 1, 2009

But Cheney’s role is an old, if still developing story. After all, he warned us five days after Sept. 11 that our government would work on the “dark side.” He told the late Tim Russert, “We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies.” …