Category Archives: Law: Constitutional Law

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.


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