Last week, the Senate Intelligence Committee, led by Sen. Dianne Feinstein (D-Calif.), voted to declassify parts of its report on the CIA’s rendition, detention and interrogation program. The White House, the CIA and the Senate still have to negotiate which portions of the report will be redacted before it is made public. But this is an important step in resolving the ugly dispute that has erupted between the intelligence committee and the intelligence agency.
The dispute presents two very serious questions. Was the program consistent with American values and did it produce valuable intelligence? And is effective congressional oversight of secret activities possible in our democracy?
The answer to the first question may be debatable, but the second is not. We must have effective oversight of secret activities.
How did we fall into this quagmire and, more important, how do we get out?
After the 9/11 attacks, President George W. Bush correctly understood his responsibility: to do all he could to protect the nation from another attack. But his administration loosened us from our moorings by approving some aspects of the rendition and detention program, principally “enhanced interrogation techniques.” The CIA engaged in activity, such as waterboarding, that the U.S. had long regarded as torture. When details of the program were leaked, many Americans were repelled.
According to media accounts, the Senate report concludes that the program did not produce any significant intelligence and that CIA officers employed techniques more brutal than authorized and then misled their senior officers, who then misled Congress.
It is important to understand, as best we can, what happened. The CIA has said it agrees with a number of the findings but disagrees with others. The CIA should not hesitate to quickly declassify the Senate report, including details that are ugly or critical of the agency. As the report apparently contains graphic details, measures must be taken to protect Americans overseas from possible reaction to the document’s release.
When the dust settles, we are likely to conclude, as with President Lincoln’s suspension of habeas corpus and President Franklin D. Roosevelt’s internment of Japanese Americans, that we overreacted in a time of national emergency. We should commit to never do it again.
But it is not clear that another investigation of the program is warranted. The Justice Department and the CIA have investigated it several times and no criminal charges have resulted.
Moreover, CIA officers need to know that the limb will not be sawed off behind them if a program properly authorized by one administration and Congress is regarded as improper by a future administration or Congress. CIA officers must be held accountable for how they carry out the programs, but we should not criminalize activities that were properly authorized and executed.
And that brings us to the second question: Can Congress effectively oversee secret intelligence activities?
The Church and Pike congressional investigations of the mid-1970s led to a basic bargain that intelligence activities may be conducted under broad legislative authority provided that oversight committees are kept “fully and currently informed.” The committees are responsible for ensuring that intelligence activities are legal, consistent with our values and support policy objectives. Congress has placed its trust in these committees, and, by extension, so have the American people.
Oversight is crucial to the success of our intelligence activities. The CIA is often called on to undertake risky and potentially controversial missions. But no such mission can succeed if it is inconsistent with our basic values or not supported by the American people. That support results from candid discussion and debate in Congress. To ensure this support, intelligence agencies must be as open as possible with the committees. They must never lie to Congress.
Feinstein recently gave a blistering and very disturbing floor statement that accused the CIA of acting unconstitutionally by seeking to frustrate the committee’s investigation of the rendition and detention program. She was particularly angry about reports that the CIA referred actions by committee staff to the Justice Department as potential criminal violations.
There is a requirement for government agencies to report possible violations of law to the Justice Department. It may be that prudence called for informal discussions with Justice rather than a formal referral. It is Justice’s job, not the CIA’s, to consider issues of separation of powers and criminal prosecution.
This whole affair is now being investigated by the Justice Department and the Senate. Until we know the facts, I find it hard to believe that the CIA acted in bad faith or to intimidate the committee.
I am confident that Congress and the CIA want trust and regular order restored between the agency and the congressional committees. The nation faces critical security issues, and the sooner we can get the report released, the debate concluded and move on, the better.
Jeffrey H. Smith was general counsel of the CIA from 1995 to 1996 and general counsel of the Senate Armed Services Committee from 1986 to 1988.