The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.
The report that Mr. Cheney was behind the decision to conceal the still-unidentified program from Congress deepened the mystery surrounding it, suggesting that the Bush administration had put a high priority on the program and its secrecy.
Its unclear as extent of the vice-president’s role in issuing directives directly to the CIA. The VP is not referred to in organizational charts. Before the creation of the Director of National Intelligence (DNI) in 2004 only the president could direct CIA activities within guidelines that includes Congressional oversight. The creation of the DNI was a recommendation of the 9-11 Commission and its major advocates included Senators Dianne Feinstein and Jay Rockefeller. The DNI aside the CIA director still reports directly to the president. Even with the DNI in the mix the office of the VP has no explicit authority to direct CIA activities unless directed to do so by the president – in which case he/she would just being acting as an intermediary. The NYT mentions that “the amended National Security Act of 1947” has some leeway in regards to “exceptionally sensitive matters”, but the Intelligence Authorization Act of 1991(reauthorized every year because of Congressional oversight of the CIA budget per the U.S. Constitution Article 1, Section 9) say that all covert activity must be approved by the president. To make what Cheney did legal, Bush would have had to authorize his activities. That would put Bush in the loop. If Cheney acted on his own, he did so in apparent violation of the Intelligence Authorization Act. If this other secret program – aside from the torture program and Bush’s Surveillance Program – was not an emergency and it appears that it was not, the president is required to inform the gang of eight ( a hold over nickname when prior to 1980 notification required eight ranking members of Congressional Intel committees.) Now only four people from the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI) are required to be notified. There is some speculation in the blogosphere that Cheney’s program was the same as the “executive assassination ring” written about by Seymour Hersh. Its just that sans further information. That Cheney was even running a secret bake sale through the CIA warrants investigation. We’ve been through related abuses of the CIA, claims of secrecy and urgent action required for reasons of national security threats with the Church Committee, the Hughes-Ryan Act and the Iran-Contra scandal. That 4th Branch Cheney thinks or thought he could act in any way he liked isn’t news. Cheney and Bush both had bizarre ideas about the extent of executive power. In their view, executive power was so extensive it made the legislative and judicial branch irrelevent.
Mainstream legal scholars across the political spectrum reject Cheney’s expansive view of presidential authority, saying the Constitution gives Congress the power to make all rules and regulations for the military and the executive branch and the Supreme Court has consistently upheld laws giving bureaucrats and certain prosecutors the power to act independently of the president.
One prominent conservative, Richard Epstein of the University of Chicago Law School, said it is “scandalous” for the administration to argue that the commander in chief can bypass statutes in national security matters.
“It’s just wrong,” Epstein said. “It is just crazy as a matter of constitutional interpretation. There are some pretty clear issues, and this is one of them.”
Laurence Tribe , a prominent liberal at Harvard Law School, said: “Nothing in the text and structure of the Constitution, or Supreme Court precedents, supports the Bush-Cheney assertion that Congress cannot limit or direct what government officials may or must do.”
Nonetheless, Bush has demonstrated that he is willing to put his legal team’s claims about his authority into action. Shortly after the terrorist attacks of Sept. 11, 2001, Bush authorized the military to eavesdrop on Americans’ international phone calls without a warrant, bypassing a surveillance law that requires warrants.
With the Bush-Cheney politburo in mind, to now listen to teabaggers, rightwing ideologues and the media’s conservative water carriers scream socialist or fascist every time President Obama says as much as good morning, is the height of absurdity. In light of very recent history in which presidential and vice presidential power was abused and pumped up beyond anything one would recognize as Constitutional, and cheered on by the very same people that are demonizing Obama, seems more like a circus side show then an informed national debate.
In the next few days to weeks one thing we can depend on from Cheney defenders, in where he could do what he wanted because there were no specific provisions in the Constitution or legislation specially forbidding him to do so. Besides being a lie that conveniently skips over quite a bit of legislation and legal precedent, its the babysitter house on fire defense; unless you specially tell the babysitter not to set the house on fire before you leave, if they do, its not their fault.
Jack Balkin has the perfect example of the kind of debate we should be having. Only we’re not going to because there are no actual Republicans left – Don’t Squander This Opportunity
The mere fact that Obama is now in the White House is not a justification for rejoicing or for thinking that we have dodged a bullet and forestalled a threat to our civil liberties. Presidents by their nature like to have power because they feel they need it to keep the country safe. Obama is no exception to this rule. The U.S. Congress, frightened and manipulated by George Bush, Dick Cheney and conservative demagogues, gave their blessing to lots of new surveillance powers with only vague limits. Whether those powers will be used well or badly will depend on Congressional oversight and executive branch implementation. That is where we should be focusing our attention now. If we do not use the release of this report to focus attention on these matters– the implementation of this powerful and important new surveillance statute– it will have been a lost opportunity.
Some think this is leading to clash between the DOJ and the White House, but it may give Obama some breathing room on public perceptions of any action belong pure partisanship, Holder Torture Investigation Likely
The probe would focus in part on whether CIA personnel tortured terrorism suspects after Sept. 11, 2001. Holder has said those who acted within the government’s legal guidance will not be prosecuted, but has left open the possibility of pursuing those who went beyond the guidance and broke the law.
Holder has discussed with his staff the possibility of a prosecutor, saying he needed someone with “gravitas and grit,” the magazine reported. In the end, the attorney general asked for a list of 10 candidates, five from within the Justice Department and five from outside.
“I hope that whatever decision I make would not have a negative impact on the president’s agenda,” Holder told Newsweek. “But that can’t be a part of my decision.”
And lastly A.L.’s write up on John Yoo, The Case Against John Yoo
Yoo’s legal memorandum omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of governmental powers between the Executive and Legislative Branches. Justice Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions on the legality of the PSP.
A troll in the comments section does an almost passable job of redirection. Yoo’s failure to consider the Youngstown was a malicious and ultimately juvenile attempt to ignore the five hundred pound legal precedent in the room.