Elizabeth Goitein: President Obama is protecting senior CIA officials and
himself - March 14, 2014
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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.
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.
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