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This article, by Jason Leopold, was posted toTruthOut, July 18, 2009.
The House Intelligence Committee formally announced Friday that it will probe whether the CIA broke the law by failing to inform Congress about a top secret assassination program reportedly aimed at targeting leaders of al-Qaeda.
Committee Chairman Silvestre Reyes said the probe would be part of a wide-ranging investigation about the way in which the CIA informs Congress about its covert activities and other matters.
Reyes, in announcing the wide-ranging probe Friday, said he had consulted with the panel’s ranking Republican minority leader, Rep. Pete Hoekstra, and other committee members and concluded that an investigation into "possible violations of federal law, including the National Security Act of 1947" were warranted. Under that law, the CIA must keep Congress "fully and currently informed" via classified briefings about its intelligence activities.
"This investigation will focus on the core issue of how the congressional intelligence committees and Congress are kept fully and currently informed," Reyes said. "To this end, the investigation will examine several issues, including the program discussed during Director Panetta's June 24 notification and whether there was any past decision or direction to withhold information from the committee."
Rep. Jan Schakowsky said Friday that her subcommittee would handle some part of the investigation into the CIA's assassination program.
"Why was there such a high-level determination to keep it secret? And how may it have changed over all these years? And why was it immediately ended as soon as the current CIA director learned of it?" she asked, describing the areas of focus for her subcommittee.
Reyes's aides said the investigation will also delve into the use of torture by CIA interrogators and contractors against alleged "high-level" detainees, the agency’s destruction of 92 interrogation videotapes - 12 of which depict acts of torture against two prisoners - and the Bush administration’s domestic surveillance program.
These aides added that the probe will also look into claims made by former CIA official Mary O. McCarthy, who accused senior agency officials of lying to members of Congress during an intelligence briefing in 2005 when they said the agency did not violate treaties that bar, cruel, inhumane or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.
"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," The Washington Post reported.
On the matter of domestic surveillance, Bob Graham, the committee’s former Democratic chairman, said in 2005 that Vice President Dick Cheney, CIA Director George Tenet and National Intelligence Director Michael Hayden (who later headed the CIA) lied to him about the extent of the Bush administration’s domestic surveillance and never provided him with a full and complete briefing.
In an interview with ABC's "Nightline" on December 15, 2005 – after The New York Times disclosed the existence of the warrantless wiretapping program – Graham said he attended meetings in Vice President Dick Cheney's office in 2001 and discussed surveillance activities. However, he said, neither Cheney nor then-National Security Agency Director Michael Hayden had spoken about a plan to spy on Americans. (CIA Director George Tenet also took part in the meeting.)
"The issue was whether we could intercept foreign communications when they transited through U.S. communication sites," Graham said. "The assumption was that if we did that, we would do it pursuant to the law, the law that regulates the surveillance of national security issues.
"There was no suggestion that we were going to begin eavesdropping on United States citizens without following the full law. There was no reference made to the fact that we were going to use that as the subterfuge to begin unwarranted, illegal — and, I think, unconstitutional — eavesdropping on American citizens."
Graham suggested that Cheney and the intelligence officials had lied to him and other members of congressional intelligence panels.
Cheney and other Bush administration officials, aided by Republican lawmakers, responded to Graham’s comments with a fierce counterattack. In another "Nightline" interview on December 18, 2005, Cheney said that Graham, as well as other members of Congress, knew that the administration intended to spy on the phone calls of some Americans.
"He knew," Cheney said. "I sat in my office with Gen. Hayden, who was then the head of NSA, who's now the deputy director of the National Intelligence Directorate, and he [Graham] was briefed as long as he was chairman of the committee, or ranking member of the committee."
Last week, an unclassified report prepared by inspectors general of five federal agencies said George W. Bush’s surveillance program was far more expansive than his administration had publicly revealed and that much of it was concealed from Congress.
The issue of the CIA’s use of torture and whether the agency fully informed top lawmakers on the Senate and House intelligence committees in 2002 and 2003 about techniques used against "high-level" detainees was called into question a few months back, when House Speaker Nancy Pelosi claimed she was never told that the CIA tortured prisoners at secret "black site" prisons using methods such as waterboarding.
But a CIA document turned over in May to Rep. Hoekstra, the House Intelligence Committee’s ranking minority member, contained the dates and a summary of the briefings given to a select group of congressional leaders, including Pelosi and Graham, about "enhanced interrogation techniques ... employed" against "high-value" detainees.
Republicans seized upon the document, claiming it proved that Democrats were complicit in the Bush administration’s torture program since they did not raise objections to the specific interrogation methods when briefed.
But the briefing document turned over to Hoekstra was rife with errors. Three of the four dates in which the CIA said it had briefed Graham do not match his records.
"When I asked the CIA when was I briefed, they gave me four dates, two in April and two in September of '02," Graham said. "On three of the four occasions, when I consulted my schedule and my notes, it was clear that no briefing had taken place, and the CIA eventually concurred in that. So their record-keeping is a little bit suspect."
One of the disputed dates for a briefing on interrogations – in April 2002 – fell in the same month as one of the supposed briefings on surveillance. In both cases, Graham said no briefings took place.
Moreover, Graham said he was not told about the CIA’s torture techniques, which the agency’s records claim were explained to Graham and Sen. Richard Shelby.
The CIA document also alleged that Pelosi was given a full accounting of the torture program, but Pelosi said in May that the CIA briefers obscured the fact that the agency already had begun subjecting prisoners to waterboarding and other torture techniques.
The CIA also erred in 2006 when a four-page memo from Director of National Intelligence John Negroponte was turned over to Congress. It contained the dates lawmakers were briefed about the surveillance program, beginning shortly after President George W. Bush signed a highly classified executive order that removed some legal restrictions against spying on US citizens.
The memo alleged that Graham – along with Pelosi, then ranking Democrat on the House Intelligence Committee, and their Republican counterparts, Rep. Porter Goss and Sen. Richard Shelby – were briefed on October 25, 2001, November 14, 2001, April 10, 2002 and July 8, 2002. A cover letter accompanying Negroponte’s letter said the briefings took place at the White House.
But Graham, who famously keeps a detailed journal of his daily schedule, said he checked those dates against his own records, which revealed no briefings on Oct. 25, 2001 or April 10, 2002. The memo had claimed Graham was the only lawmaker briefed on April 10, 2002. On July 8, 2002, the document said Graham and Shelby were briefed.
"When I got those dates, I went back to my notebooks and checked and found that on most of the dates there were no meetings held," Graham said in September 2007. "In fact, in several of them, I wasn’t in Washington when the meetings were supposed to have taken place. So I stand by what I said."
Graham said he did attend briefings on the two other dates but he told The Washington Post that "there was no discussion of anything [about spying on Americans' telephone calls] in the meeting with Cheney."
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said.
Briefing lawmakers last month about a covert CIA assassination program that was recently shut down, CIA Director Panetta said it was Cheney who ordered the agency not to inform Congress about the covert activity for eight years, according to several lawmakers and numerous media reports.
Last week, after attempts to get Panetta to change a statement he made in May in which he said it was not the CIA’s "policy or practice to mislead Congress" failed, Reyes and other Democrats on the intelligence committee publicly released a letter they sent to the CIA director, characterizing his briefing to them.
That letter followed one sent by Reyes to Hoekstra and other top lawmakers on the intelligence panel, which stated that CIA officials "affirmatively lied" to the panel, presumably about the assassination program, and misinformed the committee about on numerous occasions about other intelligence matters.
Republicans, including Hoekstra, said Democrats were trying to cover for Pelosi’s accusations that the CIA lied to her. On Friday, Hoekstra said neither he nor his Republican colleagues would support an investigation into the CIA.
"At no time will the Republicans of this committee agree to or take part in congressional Democrats efforts to tear down the CIA to provide cover for Speaker Pelosi," Hoekstra said in a statement Friday.
However, the committee will also probe accusations, revealed in an agency watchdog report, that the CIA lied to Congress about the shooting down of an airplane over Peru in 2001 carrying American missionaries. Hoekstra was the lawmaker who accused the CIA of lying to Congress about the incident, though he has since distanced himself from the allegations.
This article, by Nick Baumann and David Corn, was originally published in Mother Jones, May 6, 2009
Who in the George W. Bush White House tried to shred a memo challenging the use of torture?
On April 21, Philip Zelikow, who was counselor to Secretary of State Condoleezza Rice during the Bush administration, revealed on Foreign Policy's "Shadow Government" blog that he wrote a memo in 2005 disputing the conclusions of Bush Justice Department lawyers that torture was legal. The existence of such a memo was a surprise. But Zelikow also disclosed that the "White House attempted to collect and destroy all copies of my memo.
"This story is not over. Zelikow tells Mother Jones that he doesn't know for sure who in the White House ordered the suppression of his memo, but he says that his "supposition at the time" was that the office of Vice President Dick Cheney was behind the cover-up. In an email exchange with Mother Jones, Zelikow notes that Cheney's office did not have the authority to request that his memo be deep-sixed: "They didn't run the interagency process. Such a request would more likely have come from the White House Counsel's office or from NSC staff." But that request did not reach him in written form. "It was conveyed to me, and I ignored it," Zelikow recalls. But he suspected that Team Cheney was probably behind it
Zelikow, who is scheduled to testify before a Senate judiciary subcommittee on Tuesday Wednesday, also notes that his memo was not the only one raising questions about the administration's legal rationale supporting so-called "enhanced interrogation techniques": "There were a number of papers, mainly arguing for alternative legal frameworks." But his memo, he adds, was "a more direct assault on [the Bush Justice Department's] own interpretation of American law."
(UPDATE: The Senate judiciary subcommittee just formally announced the testimony, which will be on Wednesday, not Tuesday, as earlier reports had indicated.)
Congressional Democrats are already seeking any surviving copies of Zelikow's memo. They might now also want to request these other papers. (No such documents have been declassified or released so far.)
Cheney's office was reportedly the hub of the Bush administration's torture program. And Neil Kinkopf, a law professor at Georgia State University, who served in the Clinton administration's Office of Legal Counsel, notes, "People in the White House—Dick Cheney for example; David Addington, his legal adviser—didn't want the existence of dissent to be known. It's not hard to imagine David Addington playing very hardball internal politics and not only wanting to prevail over the view of Zelikow but to annihilate it. It would be perfectly consistent with how he operated." Zelikow, who ran the 9/11 Commission before joining the State Department, wrote in his original blog post that he believed the administration had failed to erase the evidence of his dissent: "I expect that one or two [copies of the memo] are still at least in the State Department's archives." And four top congressional Democrats on Monday wrote Secretary of State Hillary Clinton [PDF] and Adrienne Thomas, the acting national archivist [PDF], requesting surviving copies of the Zelikow memo.
In their letter to Clinton, the Democrats—Reps. John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt—ask for a search of the archives that Zelikow believes may contain his memo. But the Dems' letter to the archivist requests more. In that letter, Conyers and the others request the Zelikow memo along with "[c]opies of any 'documentary materials'" that "mention or refer to" the Zelikow memorandum or "are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum." In other words, they are looking for evidence of who attempted to bury Zelikow's opposing view.
This could even have legal implications. Federal law—including the Presidential Records Act—requires that the White House adhere to strict record-keeping standards. If a White House official tried to disappear an inconvenient memo, he or she might have committed a crime. Concerning the Presidential Records Act, the Bush administration never was a stickler. If millions of emails can disappear, what's one memo?
The Dems want to get Zelikow's allegations of a cover-up on the record and under oath, and they will. In his email to Mother Jones, Zelikow says that when he testifies next week he plans to "go through a brief chronology of the various arguments for changing the administration position." But since Zelikow doesn't appear to know who attempted to smother his memo, congressional Democrats may have to do some legwork—which could include questioning various Bush White House officials—to solve this latest Bush-era mystery.