Category Archives: Law: Constitutional Law

Feinstein Savages CIA

Senator Diane Feinstein (D-Cal), one of the more reliable friends the intelligence community has had in the Senate, delivered a remarkable statement on the floor of the Senate yesterday.

It’s really worth reading all of it. Choice bits below (I have boldfaced the choicest bit near the end):

The interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us.

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta and I agreed in an exchange of letters that the CIA was to provide a, quote, stand-alone computer system, end quote, with a, quote, network drive segregated from CIA networks, end quote, for the committee that would only be accessed by information technology personnel at the CIA who would, quote, not be permitted to share information from the system with other CIA personnel, except as otherwise authorized by the committee, end quote.

It was this computer network that notwithstanding our agreement with Director Panetta was searched by the CIA this past January — and once before, which I will later describe.

In early 2010, the CIA was continuing to provide documents and the committee staff was gaining familiarity with the information it had already received. In May of 2010, the committee staff noticed that the documents had been provided for the committee — that had been provided for the committee’s review were no longer accessible.

Staff approached the CIA personnel at the off-site location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority.

And then the CIA stated that the removal of the documents was ordered by the White House. When the White — when the committee approached the White House, the White House denied giving the CIA any such order.

… this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.

To be clear, the committee staff did not hack into CIA computers to obtain these documents, as has been suggested in the press.

When the internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities. 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. Based on the above, there was a need to preserve and protect the internal Panetta Review in the committee’s own secure spaces.

Now, the relocation of the internal Panetta Review was lawful and handled in a manner consistent with its classification. No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee offices on Capitol Hill. As I mentioned before, the document was handled and transported in a manner consistent with its classification, redacted appropriately, and it remains secured, with restricted access in committee spaces.

on January 15th, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a search — that was John Brennan’s word — of the committee computers at the off-site facility.

This search involved not only a search of documents provided by the committee by the CIA, but also a search of the standalone and walled-off committee network drive containing the committee’s own internal work product and communications. According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review.

The CIA did not ask the committee or its staff if the committee had access to the internal review or we obtained it.

Instead the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta review.

In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation, which we now have seen repeated anonymously in the press, that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.

As I have described, this is not true. The document was made available to the staff at the off-site facility, and it was located using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation. Director Brennan stated that the CIA search had determined that the committee staff had copies of the internal Panetta review on the committee staff shared drive and had accessed them numerous times. He indicated at the meeting that he was going to order further forensic investigation of the committee network to loan — to learn more about activities of the committee’s oversight staff.

Besides the constitutional implications, the CIA 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.

Weeks later, I was also told that after the inspector general reviewed the CIA’s activities to the Department of Justice — excuse me, referred the CIA’s activities to the Department of Justice, the acting counsel general of the CIA filed a crimes report with the Department of Justice concerning the committee staff’s actions. I have not been provided the specifics of these allegations, or been told whether the department has initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.

As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself.

As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting counsel general’s referral as a potential effort to intimidate this staff, and I am not taking this lightly.

I should note that for most if not all of the CIA’s detention and interrogation program, the now-acting general counsel was a lawyer in the CIA’s counterterrorism center, the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

And now, this individual is sending a crimes report to the Department of Justice on the actions of Congressional staff — the same Congressional staff who researched and drafted a report that details how CIA officers, including the acting general counsel himself, provided inaccurate information to the Department of Justice about the program.

Mr. President, let me say this: All senators rely on their staff to be their eyes and ears and to carry out our duties. The staff members of the intelligence committee are dedicated professionals who are motivated to do what is best for our nation. The staff members who have been working on this study and this report have devoted years of their lives to it, wading through the horrible details of a CIA program that never, never, never should have existed.

They have worked long hours and produced a report unprecedented in its comprehensive attention to detail in the history of the Senate. They are now being threatened with legal jeopardy just as final revisions to the report and being made so that parts of it can be declassified and released to the American people.

Mr. President, I felt that I needed to come to the floor today to correct the public record and to give the American people the facts about what the dedicated committee staff have been working so hard for the last several years as part of the committee’s investigation.

I also want to reiterate to my colleagues my desire to have all updates to the committee report completed this month and approved for declassification. We’re not going to stop. I intend to move to have the findings, conclusions and the executive summary of the report sent to the president for declassification as release to the American people. The White House has indicated publicly and to me personally that it supports declassification and release.

If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted. But, Mr. President, the recent actions that I have just laid out make this a defining moment for the oversight of our Intelligence Committee. How Congress and how this will be resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities or whether our work can be thwarted by those we oversee.

Posted in Law: Constitutional Law, National Security, Torture | 2 Comments

CIA Spied on Senate Committee?

This story seems like a Smoking Gun-sized Big Deal. The NYT version, C.I.A. Employees Face New Inquiry Amid Clashes on Detention Program and the less namby-pamby McClatchy version, Probe sought of CIA conduct in Senate study of secret detention program paint a pretty damming picture of an agency totally out of control, and of a potentially massive separation of powers conflict arising out of the Senate’s report on CIA torture.

Compare McClatchy’s leed:

The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

to the NYT leed:

The Central Intelligence Agency’s attempt to keep secret the details of a defunct detention and interrogation program has escalated a battle between the agency and members of Congress and led to an investigation by the C.I.A.’s internal watchdog into the conduct of agency employees.

The agency’s inspector general began the inquiry partly as a response to complaints from members of Congress that C.I.A. employees were improperly monitoring the work of staff members of the Senate Intelligence Committee, according to government officials with knowledge of the investigation.

McClatchy also says this:

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

Brennan replied that he’d have to get back to Wyden after looking into “what the act actually calls for and it’s applicability to CIA’s authorities.”

None of that is in the NYT version, although the NYT (like McClatchy) does have these details:

Then, in December, Mr. Udall revealed that the Intelligence Committee had become aware of an internal C.I.A. study that he said was “consistent with the Intelligence Committee’s report” and “conflicts with the official C.I.A. response to the committee’s report.”

It appears that Mr. Udall’s revelation is what set off the current fight, with C.I.A. officials accusing the Intelligence Committee of learning about the internal review by gaining unauthorized access to agency databases.

In a letter to President Obama on Tuesday, Mr. Udall made a vague reference to the dispute over the C.I.A.’s internal report.

“As you are aware, the C.I.A. has recently taken unprecedented action against the committee in relation to the internal C.I.A. review, and I find these actions to be incredibly troubling for the committee’s oversight responsibilities and for our democracy,” he wrote.

Developing.

Posted in Law: Constitutional Law, National Security, Surveillance, Torture | Leave a comment

This is So Ugly

An American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, U.S. officials say, and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.

The CIA drones watching him cannot strike because he’s a U.S. citizen and the Justice Department must build a case against him, a task it hasn’t completed.

Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.

Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

and more from AP via Huffington, Drone Attack Controversy: Obama Administration Wrestling With Whether To Target U.S. Terror Suspect.

Shorter version: our government has a kill list for its own citizens. There is no indictment, no judicial review, no trial. Someone in the government signs an order and the execution proceeds.

Posted in Law: Constitutional Law, National Security | 2 Comments

Dream On

Scrivener’s Error:

It would be an unconstitutional attainder to prohibit the spouses, siblings, children, and first-degree nephews and nieces from running for any elective office after actual seating of an individual as a federal elected official; it would also be an extremely good idea, if we really care at all about limiting nepotism. Hell, I’d go so far as to include state and major local elections, too (Chicago mayors for $500… and the Daleys weren’t the first).

An anti-nepotism constitutional amendment would certainly upend South Florida politics, not to mention put spokes in the electoral plans of the Kennedy, Cheney, Bush, and Clinton families. Assuming this would be a good idea in principle, there are lots of details to consider. Should the ban be absolute, or just be limited to the offices the first person held? (I.e is there a meaningful difference between two Bushes or Clintons running for President and a Cheney running for Senate?1) Also, for some reason I feel more comfortable with the ban on children than the one on spouses and siblings. In particular, a spouses ban will harm women much more than men.

Although if we’re dreaming, big money in politics is a much bigger problem than nepotism, not that the two are unrelated.

Meanwhile, when will we resurrect the John Quincy Adams precedent and have a good former President serve in the House? Although with our luck we’d probably get the Andrew Johnson precedent and get a bad former President in the Senate.


  1. Best joke of the day. []
Posted in Law: Constitutional Law | 3 Comments

Freedom 2014

LandFreeEnjoy your freedom:

Posted in Law: Constitutional Law | 4 Comments

Stray Thought

If corporations are people, can we draft them?

Posted in Law: Constitutional Law | 8 Comments

Senate Goes Nuclear (Updated)

nukeAfter years of timidity, the Senate suddenly used the ‘nuclear option’ and amended its rules to kill the filibuster for all nominations other than Supreme Court Justices.

The Republicans — whose pledge to block any appointee to the D.C. Circuit no matter how qualified is what brought on this sudden shift — promised retaliation when they were next in the majority. The Minority Leader Sen. Chuck Grassley promised they’d abolish the filibuster for Justices too.

Meanwhile Sen. Carl Levin, one of the three Democrats to vote to keep the filibuster as it was, warned that the principle set in this vote could just as easily be applied to legislation as to nominations, so that this meant the end of the Senate as we know it.

From a strict matter of procedural nicety, I would have preferred a vote to amend the Senate rules be taken at the first meeting of the Senate in a session, rather than mid-session. Even though the Senate sees itself as a continuing body, there seems to me to be no serious argument that the rules cannot be changed by majority vote at the start of the two-year session. There is and was a credible argument that once the rules were in place, a change to the filibuster rule could be filibustered; as I understand it the Senate voted to overrule the Chair on that point, which is an option under its rules of procedure. And that was that.

One thing I definitely believe: Art. I, sec. 5 of the Constitution states that “Each House may determine the Rules of its Proceeding”; I do not think that this decision, whatever one thinks of it, is or should be reviewable in court. I imagine there will be a challenge, say by some party unhappy with a ruling by a judge confirmed under the new rules, but I confidently predict that it will lose.

Is the death of the filibuster good for us? In the short term, given how it was being routinely abused, yes. In the long term, it is harder to say. On the plus side, it makes the Senate a little less undemocratic; with the filibuster a rump of 41 senators representing under a third1 of the population. On what may well be the minus side, it also makes a President with a majority in the Senate significantly more powerful; and it makes a President with even a bare majority in both houses very much more powerful, maybe too powerful. That is emphatically not the situation today, but things change.

Update: It seems I’m consistent: Back in 2005 I chose not to sign a lawprof’s letter opposing the ‘nuclear option’. That time it was Republicans threatening to use the ‘nuclear option’ against Democrats.


  1. Update2: It seems I forgot just how bad it is. According to Dylan Matthews,
    If senators representing 17.82 percent of the population agree, they can get a majority in the 2013 U.S. Senate. That’s not the lowest that figure has gotten (it hit about 16.8 percent in 1970) but it’s about there. And this doesn’t even take the filibuster into account. The smallest 20 states amount to 11.27 percent of the U.S. population, but if all of their senators band together they can successfully filibuster legislation. of the population could block nominations.

    []

Posted in Law: Constitutional Law | 2 Comments