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Former Justice Department official Marty Lederman: Is there any way to fix legislative oversight of intelligence operations?
Note Lederman's critique here as well of oversight committee members' complicity in allowing themselves to become so hamstrung and captured in this predicament on FISA as well as CIA interrogation techniques:... As I've previously written, the pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:
1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers
2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself
3. and to provide such briefings after the conduct has commenced
4. in a highly classified setting
5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks
6. while assuring the legislators that it has been vetted by the lawyers and is legal
7. without showing the legislators the legal analysis supporting the conduct
8. without disclosing the legal arguments that cut the other way
9. without informing the legislators of any policy-based or legal dissent within the executive branch
10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct
11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.
The reaction from the Intel Committees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement. ...
7. The members of the Committees must be willing to use the leverage they have to obtain information that the executive branch refuses to share. In recent days, Senator Rockefeller, for instance, has been heard complaining that he has repeatedly asked the Administration for memos, documentation, etc., regarding the CIA interrogation program, only to be rebuffed at every turn. The committees are still seeking authorization to make public the OLC memos on interrogation and surveillance -- but no such permission is forthcoming. But yet Rockefeller, et al., then go ahead and push through the Military Commissions Act; they work to grant telecom immunity; they cooperate with the Administration on FISA "reform"; etc. At every turn, that is, they cooperate to give the Administration most of what it wants in terms of legislative amendments. They should, instead, insist that they will not even consider such proposals unless and until the Administration comes clean with all of the information and documentation that the Committee has been requesting for several years.