- The Washington Times - Sunday, June 7, 2009



As the controversy continues over what and when Speaker Nancy Pelosi knew about the CIA’s use of enhanced interrogation methods (EIM), there is a significant overlooked dimension to this Washington melodrama.

If the speaker, as she admits, was informed as early as 2002 of the program, including the possible use of waterboarding, but was powerless to challenge that policy - except by using it as a political tool in the 2006 congressional elections - the entire web of practical, legal and institutional arrangements known as “intelligence oversight” is useless, a congressional Potemkin Village. This would weaken Congress’ hard-won post-Watergate authority to share responsibility for the nation’s intelligence activities.

Of course, the extent to which Congress can constitutionally control the president’s management of intelligence activities is arguable. However, Congress has a constitutional prerogative to determine how much money can be spent on the intelligence establishment, and - at least at a general level - how the funds are spent.

Accordingly, the oversight system, largely codified in the Intelligence Oversight Act of 1980, assumes an active congressional role, requiring the president to “ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States.” The purpose, as explained in the act’s legislative history, was “to authorize the process by which information concerning intelligence activities of the United States is to be shared by the two branches in order to enable them to fulfill their respective duties and obligations to govern intelligence activities within the constitutional framework.”

In other words, Congress was not assumed to be a well-informed “potted plant.”

Intelligence, of course, requires secrecy - not Congress’ strong suit. Therefore, the act permits the president to limit reporting to the top leadership of the Senate and House, and the chairmen and ranking members of the intelligence committees, known as the “gang of eight.” It was to these lawmakers that the CIA began, in 2002, to report on its use of EIMs.

According to the CIA, and the grudging admissions of Mrs. Pelosi, these methods - including waterboarding - were discussed with the gang of eight and, at the time, prompted little concern. The most notable reaction was a Feb. 10, 2003, letter to the CIA from Rep. Jane Harman, California Democrat and at the time her party’s ranking member on the House Intelligence Committee.

Mrs. Harman did not, as has since been claimed, condemn or reject EIM use as illegal or inconsistent with American values. She acted as an engaged committee member, questioning whether - in addition to legal vetting - the admittedly “profound policy questions” raised by the use of EIMs, had “been as rigorously examined as the legal questions.” In particular, she asked what type of policy review took place, and “whether the most senior levels of the White House [i.e., the president] have determined that these practices are consistent with the principles and policies of the United States.”

Mrs. Pelosi’s reaction was different. When briefed, she raised no questions regarding EIM use. It was only after the CIA program leaked, and became a roiling political issue that congressional leaders - including Mrs. Pelosi - began to condemn EIM use. More important, given the briefing notes released by the CIA, Mrs. Pelosi’s claims that she either did not fully understand the program or had no power to affect the administration’s policy choices here are not credible.

Far more important than the speaker’s troubles, however, is what this episode means for the future of intelligence oversight. If the congressional role is actually as anodyne as Mrs. Pelosi (and a number of other members) have suggested, then it is a waste of time and money. There is no point in informing members of intelligence activities if they can do nothing about them. The fact that no senior member of Congress has so far stepped forward to make this point underscores how partisanship and politics have regrettably supplanted long-term institutional loyalty.

Meanwhile, the executive branch at the highest levels, and not just the CIA, ought to defend the integrity of the intelligence oversight system. Having the White House approve the CIA rejoinder to the speaker is a useful first step, but is not enough.

Because the act’s original purpose was to ensure that both the executive and Congress had the information necessary to perform their constitutional functions, the intelligence agencies could count on the support of both the president and Congress once a particular program was vetted. As any arrangement in our untidy democracy, the system was not perfect, but has worked reasonably well.

If this is no longer true, the intelligence agencies are likely to become even more risk-averse - since they never can be sure when the roiling political winds will turn congressional acquiescence into congressional outrage.

This is not the message we should be sending at a time when these agencies are the front-line defense against terrorist attacks.

David B. Rivkin Jr. and Lee A. Casey are Washington lawyers and served in the Justice Department during the Ronald Reagan and George H.W. Bush administrations. Mr. Rivkin also is co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

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