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Monday, January 13, 2014

Oversight follies

by digby

Oh heck. It looks as though the figurehead of the presidency is shown to be so impotent it is unlikely to even have the power stop itself from doing things with which it disagrees:
Many of the key reforms he’s expected to endorse — including changes to the National Security Agency’s practice of gathering information on telephone calls made to, from or within the U.S. — will require congressional action. Like the public — and seemingly the president himself — lawmakers on both sides of the aisle are divided on what needs fixing and how to do it.
It’s another challenge for a White House eager to clear the decks for issues that aides want to highlight in Obama’s State of the Union address later this month, such as income inequality and immigration.

The snooping saga has been a loser for Obama in nearly every respect. Edward Snowden, the former NSA contractor who leaked a trove of top-secret documents detailing the surveillance, is still camping out in Russia. The activities angered the international community. And disclosures that widespread and intrusive surveillance continued into Obama’s presidency undercut his reputation as a reformer who would end over-the-top anti-terrorism practices and civil liberties violations many liberals — including Obama and Vice President Joe Biden — denounced under President George W. Bush.

As commander in chief, Obama could abandon certain surveillance practices altogether. For instance, he could simply shut down the so-called 215 program to collect telephone data in the U.S. so it can be used to trace potential contacts of terrorism suspects. 
But the president has said he’s considering replacing that program with a private-sector-based arrangement that provides the government with similar information on a case-by-case basis. That would require Congress to step in, officials said.

There’s “going to probably have to be some statutory — and very likely some court — involvement in order to set up the legal framework to achieve that,” outgoing NSA Deputy Director Chris Inglis told NPR News last week. “But that’s not abandoning the program. That’s implementing it a different way.”

Obama does have unilateral authority to impose dramatic reforms overseas, since surveillance of foreigners abroad is essentially unconstrained by U.S. law. And the White House has signaled that much of Friday’s address will be aimed at the international audience. Obama has personally fielded the complaints of foreign leaders like German Chancellor Angela Merkel, who was livid over reports that the NSA had effectively tapped her personal mobile phone.

Administration officials say Obama is likely to embrace many of the recommendations put forward last month by an outside panel he set up to dig into the issue: the President’s Review Group on Intelligence and Communications Technologies.

The committee urged ending the NSA’s program that has collected information on billions, perhaps even trillions, of U.S. telephone calls. A federal judge ruled last month that the metadata program — aimed at running down leads about potential terrorist plots — was most likely unconstitutional, but other judges have concluded that the effort is lawful. The panel urged that much of the same data be stored at the phone companies and available to the government on a case-by-case basis with individual court warrants, something likely to require Congress to impose new requirements on the firms. 
The review group also recommended assigning a public advocate to the secretive Foreign Intelligence Surveillance Court, so judges could hear from an attorney advocating for privacy rights and other constitutional protections for Americans whose data is swept up in surveillance programs. And the panel urged changing the way judges on the court are appointed, so the chief justice no longer has the sole power to make such picks. Those changes, too, would need legislation.
Never mind.

It's just a teensy bit frustrating that the executive branch has all the authority to operate these programs in secret and the tepid legislative and judicial oversight operates like a rubber stamp and yet when the information is finally revealed our political system is so inept that any changes that are made are always mostly cosmetic and much of what what was formerly a constitutional gray area at best becomes codified.
And that's probably the best case scenario.

Keep in mind that back in the 70s the vaunted Church and Pike Commissions were hamstrung from the beginning by political considerations and politicians who pursued these issues paid a high price for doing it:
When Richard Nixon resigned in August 1974, the United States concluded one of the most traumatic chapters in its history. During the Watergate scandal, Americans had been shocked by the crimes of the Nixon presidency. Investigations by the press and Congress had exposed previously unimaginable levels of corruption and conspiracy in the executive branch. The public's faith in government had been shaken; indeed, the entire "system" had been tested. Now, with Nixon's resignation, two years of agonizing revelations finally seemed to be over. The system had worked.

Yet only four months later, New York Times reporter Seymour Hersh disclosed that the government's crimes went beyond Watergate. After months of persistent digging, Hersh had unearthed a new case of the imperial presidency's abuse of secrecy and power: a "massive" domestic spying program by the Central Intelligence Agency (CIA). According to Hersh, the CIA had violated its charter and broken the law by launching a spying program of Orwellian dimensions against American dissidents during the Vietnam War. The Times called it "son of Watergate."

These revelations produced a dramatic response from the newly energized post-Watergate Congress and press. Both houses of Congress mounted extensive, year-long investigations of the intelligence community. These highly publicized inquiries, headed by experienced investigators Senator Frank Church and Congressman Otis Pike, produced shocking accusations of murder plots and poison caches, of FBI corruption and CIA incompetence. In addition to the congressional inquiries, the press, seemingly at the height of its power after Watergate, launched investigations of its own. The New York Times continued to crusade against CIA abuses; the Washington Post exposed abuses and illegalities committed by the FBI; and CBS's Daniel Schorr shocked the nation by revealing that there might be "literal" skeletons in the CIA closet as a result of its assassination plots.

In this charged atmosphere, editorial writers, columnists, political scientists, historians, and even former officials of the CIA weighed in with various suggestions for reforming an agency that many agreed had become a ''monster.'' Several policymakers, including presidential candidates Fred Harris and Morris Udall, called for massive restructuring or abolition of the CIA. Media and political pundits suggested banning CIA covert operations; transferring most CIA functions to the Pentagon or the State Department; or, at the very least, devising a new, strict charter for all members of the intelligence community.

Few barriers seemed to stand in the way of such reforms. The liberal, post-Watergate Congress faced an appointed president who did not appear to have the strength to resist this "tidal shift in attitude," as Senator Church called it. Change seemed so likely in early 1975 that a writer for The Nation declared "the heyday of the National Security State', to be over, at least temporarily.

But a year and a half later, when the Pike and Church committees finally finished their work, the passion for reform had cooled. The House overwhelmingly rejected the work of the Pike committee and voted to suppress its final report. It even refused to set up a standing intelligence committee. The Senate dealt more favorably with the Church committee, but it too came close to rejecting all of the committee's recommendations. Only last-minute parliamentary maneuvering enabled Church to salvage one reform, the creation of a new standing committee on intelligence. The proposed charter for the intelligence community, though its various components continued to be hotly debated for several years, never came to pass.

The investigations failed to promote the careers of those who had inspired and led them. Daniel Schorr, the CBS reporter who had advanced the CIA story at several important points and eventually had become part of the story himself, was investigated by Congress, threatened with jail, and fired by CBS for his role in leaking the suppressed Pike report. Seymour Hersh's exposes were dismissed by his peers as "overwritten, over-played, under-researched and underproven." Otis Pike, despite the many accomplishments of his committee, found his name linked with congressional sensationalism, leaks, and poor administration. Frank Church's role in the investigation failed to boost his presidential campaign, forced him to delay his entry into the race, and, he thought, might have cost him the vice presidency.

The targets of the investigation had the last laugh on the investigators. "When all is said and done, what did it achieve?" asked Richard Helms, the former director of the CIA who was at the heart of many of the scandals unearthed by Congress and the media. "Where is the legislation, the great piece of legislation, that was going to come out of the Church committee hearings ? I haven't seen it." Hersh, the reporter who prompted the inquiries, was also unimpressed by the investigators' accomplishments. "They generated a lot of new information, but ultimately they didn't come up with much," he said.

And just last week I was privileged to exclusively publish this excerpt from Rick Perlstein's forthcoming book on the era about Daniel Schorr's difficulty in finding a place to publish the Pike Committee Report, which shows just how "helpful" the journalistic establishment was --- to the government:
...The [Pike] report, drafted by an Ervin Committee veteran, was, for a government document, a literary masterpiece, and hard-hitting as hell: it opened with seventy pages savaging the Ford administration's lack of cooperation with Congress's work, and continued, more aggressively than Pike's public hearings—which had been plenty aggressive themselves, far more so than Senator Church's—by documenting the CIA's wasteful spending (where it could figure out what it spent), its bald failures at prediction, its abuses of civil liberties and its blanket indifference that any of this might pose a problem. It singled out Henry Kissinger for his "passion for secrecy" and statements "at variance with facts"; it detailed a number of failed covert actions—not naming countries, but with plenty enough identifying details to make things obvious enough for those who cared to infer. For instance, how the Nixon administration encouraged the Kurdish minority in Iraq to revolt, then abandoned them when the Shah of Iran objected. "Even in the context of covert action," it concluded concerning that one, "ours was a cynical exercise."

And something about all this seemed to spook cowed congressmen—who soon were voting to neuter themselves.

The House Rules Committee approved a measure by nine votes to seven to suppress publication report unless President Ford approved its contents. The full House debated whether to accept or reject the recommendation. Those against argued that the "classification" system itself violated the canons of checks and balances that were supposed to be the foundation of the republic. A moderate Republican from Colorado pointed out that the executive branch was desperate to serve as judge and jury in the very case for which it was plaintiff: that the report definitively established that the CIA had committed "despicable, detestable acts," but that "we are being castigated by those who perpetrate the acts and classify them." Pike made a demystifying point: that each of these things called "secrets," and hemmed around with such sacralizing foofaraw, talked of as if they were blatant instructions to our enemies on how to defeat us, "is a fact or opinion to which some bureaucrat has applied a rubber stamp." A Democrat from suburban Chicago drove home the bottom line: "If we are not a coequal branch of this government, if we are not equal to the President and the Supreme Court, then let the CIA write this report; let the President write this report; and we ought to fold our tent and go home."

To no avail. On January 29, the full House voted by two to one, led by conservatives, to suppress the very report it had authorized a year of work and several hundred thousand dollars to produce.

It all was too much for Daniel Schorr. He took his copy to his bosses at CBS: "We owe it to history to publish it," he said. They disagreed. He went to a nonprofit organization called the Reporters Committee for Freedom of the Press to see if they could find a publishing house that might be interested, with the proceeds perhaps going to their group. They could not. Finally the alternative weekly the Village Voice agreed to publish it, in a massive special issue, and since the Reporters Committee now controlled the document, the Voice made a contribution to the group. This set off a fierce backlash among the polite guardians of journalistic decorum; the New York Times editorialized that by "making the report available for cash" Daniel Schorr was guilty of "selling secrets." On ABC, anchor Sam Donaldson said, "There are those that argue that in an open society like ours nothing should be concealed from the public. Depending on who espouses it, that position is either cynical, or naive." He said "mature and rational citizens" understood this—but not, apparently, Daniel Schorr. Nor his bosses at CBS News, who suspended him, though local affiliates begged CBS brass to fire him.

The House Ethics Committee opened an investigation into who leaked the document to Schorr, who never told coughed u his source; they ended up spending $350,000, interviewing 400 witnesses, coming up with, yes, one leaker, Congressman Les Aspin (D-Wisconsin)—but he had leaked it to the CIA, as a political favor.
So you can see how this tends to go. Our vaunted "oversight" and legislative input, not to mention the cowardly behavior of so many members of the press, ends up creating "reforms" that barely reform. It's a feature, not a bug.

Having said that, I believe there's a lot of value in public disclosure because it makes these agencies have to explain themselves and puts them in the position of being anxious and insecure that their secrets will be revealed. They need this in order that they will at least consider how it will appear to the citizens, our allies and our enemies if their activity becomes public. It's not much, but it's something and over time it can have a salutory effect on the way these programs are conducted.

And who knows? Someday we might even be able to truly "reform" these programs in a radical way (such as the opening up of government secrets proposed by the Moynihan Commission.) That would require a president committed to doing it along with a majority in congress that would support him or her. I wish I could see that happening some time soon, but I'm afraid that's just not possible in our current environment --- or maybe ever as long as we're a military empire determined to organize ourselves by a need to meet some existential threat (no matter how ludicrous.)

What's more likely in the short run is a radical reform of  journalism, which is already happening and which has the greatest potential to rein in the abuses through the threat of public exposure. The "alternative" press is a whole lot bigger and a whole lot more amorphous than it was during Daniel Schorr's day. So governments are going to have to be much more cognizant of the threats they are in danger of creating if their secrets are revealed. Even if the Sam Donaldson's of today ---David Gregory and company --- are appalled that anyone would leak government secrets, somebody's going to.

As much as everyone pooh poohs the idea of personal privacy and rolls their eyes at the notion that individuals can keep any information from the public domain, the real issue is whether the government will be able to. If there are no more secrets for me and thee, there are no more secrets for them either. They're going to have to figure out a way to do what they need to do without relying on unconstitutional and invasive forms of mass collection of personal information.

And from what we know of their efficiency and effectiveness, we'll obviously all be a lot better off if they do. This expensive and oppressive love of secrets doesn't seem to be what's getting the job done. In fact, for all of our high tech capabilities, the real challenge to our safety is in the competing bureaucracies and the individuals who populate them. Maybe we should stop building Starship Enterprise sets and billion dollar secret bunkers in Utah and start thinking about how to deal with that fundamental problem.