Monday, July 13, 2009

Re: The Most Recent Undisclosed CIA Program

You can find the original NYTimes piece here. The WSJ downplays the story here. You can find the governing law, the National Security Act of 1947 as Amended, here.

From the innuendo that abounds, it appears the CIA’s program (or, series of ideas over 8 years, if you like) involved targeted assassinations. Dick Cheney’s reported involvement in this program – or at least instructing the CIA not to tell Congress – may lend credence to Sey Hersh’s accusations back in 2003 of assassination squads, which he famously repeated this spring.

Cheney’s direction that the CIA not tell Congress is likely illegal – although the outlines of the spin are already clear: 1) the program wasn’t significant and therefore there was no legal requirement to tell Congress; 2) Congress is leaky.

Rep. Pete Hoekstra’s take on the first deflection is most interesting – he’s linking “significant” to amount spent. The National Security Act’s use of significant is clearly not meant to be read as cost but to be taken as important, this is probably best measurable in terms of “blowback potential.” There have also been deflections that the program was not yet operational, so there was no need to inform Congress, but the National Security Act’s requirement to inform covers “anticipated” intelligence activities, as well.

Finally, the Congress is leaky argument is just nonsense. First, it is not Congress that is informed but the Congressional Intelligence Committees. Second, the National Security Act provides explicitly for “extraordinary circumstances,” when “the President determines that it is essential to limit access,” by providing that the President may inform “the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.” That exception, it should be noted, is meant to apply to a finding in explicit opposition to “intelligence activities,” including covert action. And, fortunately, the way the United States is set-up, the President (and certainly not the Vice President) is not empowered with ability to disregard the law, that is re-write the law, to suit his purposes – to say nothing of the utter disregard for a co-equal branch of government by refusing to abide by the law in deriding that other branch as “leaky.”

UPDATE: Bobby Ghosh at TIME says that sources have told him:
The program could have required the Agency to spy on Americans. Domestic
surveillance is outside the CIA's purview -– it's usually the FBI's job – and
it's easy to see why Cheney would have wanted to keep it from Congress.
It's a bit of an understatement to describe "domestic surveillance" as "outside the CIA's purview." If we're talking about truly domestic surveillance, as in spying on Americans in America, it may be illegal. The National Security Act of 1947 provides: "the [Central Intelligence] Agency shall have no police, subpoena, or law enforcement powers or internal security functions."

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