Category: Oversight of the Executive

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Does the Obama Administration Challenge the Senate’s Authority to Release Classified Information under S. Res. 400?

On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis for these redactions and determine their justification.” Thus, she has chosen not to release the redacted version of the report although SSCI is now legally free to do so (without prejudice to its right to seek release of an unredacted or less redacted version at a later time).

Assuming that Feinstein and her colleagues decide to challenge some or all of the redactions, they have a clear mechanism for doing so in Section 8 of S. Res. 400. As we have discussed before, this provision allows SSCI to vote for public disclosure of classified material the executive branch wishes be kept secret. Unless the President objects within five days, the committee may release the information. If the President does object, the matter may be elevated to the Senate for final decision.

A blog post by Professor Marty Lederman, however, raises the surprising possibility that the Obama administration may not recognize or accept the legitimacy of this mechanism. Lederman cites two FOIA filings by the Obama Justice Department that say SSCI can only publicly release material after declassification review by the executive branch. If these statements were taken literally, they conflict (or arguably conflict) with the Senate’s authority under Section 8.

I think it unlikely, however, that these statements portend any administration challenge to the Senate’s Section 8 authority. First, as far as I know, no prior administration has questioned the Senate’s authority to release classified information under Section 8 (nor the House’s similar authority under Rule X(11)(g)). The provision in question was the subject of some controversy when S. Res. 400 was proposed and adopted in 1976, but it does not appear that the executive branch seriously questioned its constitutionality or legitimacy. This CRS legislative history of S. Res. 400, for example, reflects only that then-DCI George H.W. Bush expressed some reservations about the disclosure provision, feeling that it “might conflict with the statute requiring the DCI to ‘protect intelligence sources and methods.’” (p. 18).

During the floor debate over S. Res. 400, the only constitutional objection to Section 8 was raised by Senator Abourezk, who felt it was too deferential to the executive branch classification system. He argued that the new intelligence oversight committee “will be saddled with formal procedures for declassifying information buttressed by sanctions in contrast to the President who is free to declassify in an ad hoc manner as it suits his political needs.” (CRS-96). No senator, in contrast, questioned the Senate’s constitutional authority to release classified information without executive branch permission.

If the executive branch objected to Section 8, it could have insisted on modification or repeal of this provision (and the analogous House rule, which was adopted in 1977) as a condition of providing SSCI and HPSCI with sensitive intelligence information. Instead, in 1978 President Carter issued Executive Order 12036, which “officially recognized the existence of the two oversight committees and directed that they be kept ‘fully and currently informed’ by the departments and agencies that made up the Intelligence Community.” Britt Snyder, The Agency and the Hill 59. This principle was later enacted into law by the Intelligence Oversight Act of 1980. The executive branch evidently considered the procedures established under Section 8 as an adequate protection for classified information shared with the intelligence committees and undoubtedly preferred them to prior practice in which individual committees could decide to release classified information unilaterally. See id. 200-01 (describing how the Pike Committee in the House unilaterally released classified information that the Ford Administration believed seriously compromised US SIGINT capabilities). Subsequent administrations have continued or strengthened information-sharing practices and laws without challenging (as far as I know) the right of the intelligence committees to use Section 8 or its House counterpart to release classified information.

Furthermore, the two FOIA filings Lederman cites strike me as unlikely vehicles for an Obama administration challenge to Section 8. Both appear in a FOIA case against the CIA in which the ACLU seeks access to the Senate report. The first filing is an affidavit from the director of CIA congressional affairs, who states that “SSCI would be required to submit its Report for a declassification review before it could public release the Report.” The second is a reply brief in which the Justice Department refers to a declassification review of the report as “a necessary precursor to public release.”

Neither of these filings mentions Section 8 of S. Res. 400 or alludes to the possibility of the Senate, as opposed to SSCI, releasing the report. It therefore would seem quite a stretch to suggest that these documents implicitly announce the administration’s rejection of Section 8 as a legitimate mechanism for public disclosure. For all we know, the authors of these documents were not even aware of Section 8. Or perhaps they thought SSCI had committed, formally or informally, to submitting its report for declassification review. Or perhaps they just decided to ignore Section 8 for some other reason.

If the administration really wanted to question the constitutionality of Section 8, one would expect a pronouncement on the issue from the Office of Legal Counsel (not known for being shy about asserting executive prerogatives). I am not aware of any such pronouncement, and Lederman (who served in the OLC as a political appointee in the Obama administration and as an attorney advisor in prior administrations) cites none.

So, in short, I seriously doubt that the administration would challenge the right of SSCI and the Senate to use Section 8. Lederman, with whom I consulted before posting this, assures me that he isn’t predicting this either. Moreover, as indicated in his original post, Lederman doesn’t think there would be much to such a challenge if it were made. Neither do I.

Which begs the question of why SSCI is so skittish about invoking Section 8. A subject I will turn to in a future post.

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Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

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Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative law decisions and the extent to which a decision on the merits of the employer mandate delay would or would not vindicate the House’s constitutional interests.

In Halbig v. Burwell, the D.C. Circuit held the IRS rule invalid because it conflicts with the unambiguous language of the Affordable Care Act, particularly section 36B, which authorizes tax subsidies only for insurance purchased on “an Exchange established by the State.” The government argued that the statute taken as a whole reveals Congress’s intent that subsidies be available on both the federal and state exchanges. Any other conclusion, it contended, would generate an absurd result and be inconsistent with the ACA’s purpose and legislative history. Judge Griffith, writing for himself and Judge Randolph, found that the government’s arguments were insufficient to overcome the clear statutory text.

On the other hand, in King v. Burwell, the Fourth Circuit held that the language of the ACA, taken as a whole, was ambiguous on the question of whether tax subsidies applied to the federal exchange. The court acknowledged that the plaintiffs’ position made a “certain sense” and “accords more closely” with “a literal reading of the statute,” but after reviewing all relevant statutory provisions as well as the ACA’s structure, purpose and legislative history, it concluded that “we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run exchanges.” Instead, the court applied Chevron deference to the statutory interpretation adopted by the IRS in its regulation, thus upholding the agency’s decision to extend tax subsidies to insurance purchased on the federal exchange.

The two courts therefore reached different conclusions, but the various judges who have weighed in on the controversy (so far) reflect more than two views. The D.C. Circuit majority thought the ACA unambiguously prohibited the IRS from extending tax subsidies to insurance bought on the federal exchange. The Fourth Circuit majority, along with Judge Edwards dissenting in Halbig, thought that the ACA did not resolve the issue one way or the other and that the IRS was therefore free to determine whether or not tax subsidies should apply on the federal exchange. However, Judge Davis, concurring in King, found that Congress did resolve the question in the ACA and that the IRS was therefore required to adopt the interpretation that it did. And none of the judges appeared to agree with Judge Friedman, the lower court judge in Halbig, who found that the ACA unambiguously supported the IRS’s position.

In his Rules Committee testimony, Professor Turley cited the tax subsidy issue in Halbig as an example of Congress addressing an issue with a “lack of ambiguity” and the administration deciding to change Congress’s policy decision through a regulation. Turley expressed the hope that by bringing such cases to the courts, the House could obtain some sort of clear demarcation of congressional versus executive authority. Certainly the results in Halbig/King so far suggest this is a forlorn hope.

Even if a majority of the Supreme Court ultimately invalidates the IRS regulation, I don’t see that such a decision would expand or protect congressional power in some fundamental way. No one disputes that Congress could have resolved the issue through the ACA; the question is simply whether it did so. Indeed, it is arguable that the Halbig/King cases will expand executive authority by applying Chevron deference to an IRS determination that may not deserve it.

Just as importantly, even Judge Griffith’s opinion does not address, at least in any kind of direct way, the House’s constitutional concern that President Obama is failing to take care that the laws be faithfully executed. The D.C. Circuit concludes that the plaintiffs have the “better of the argument” as the tax subsidy issue, but it does not suggest that IRS (much less the President) promulgated the regulation in bad faith.

In sum, if the House were to sue regarding the employer mandate delay, the best it could hope for would be a court decision holding that delay to be invalid. But as I mentioned before, courts invalidate agency regulations all the time. How would one more such ruling change the balance of power between the branches?

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The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?

With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two.

The first is whether the delay of the employer mandate was “legal.” This is the question that a court would ask if the issue were properly before it. For example, suppose that an employee sued his employer, alleging that he is entitled to employer-provided health care in 2014. Like Professor Dellinger, I am unsure why an employee couldn’t bring such a suit in reality, but for present purposes just assume that such a suit would present a justiciable controversy.

The employer would argue that its obligation under the ACA is contingent upon regulatory action (implementation of the reporting requirement) that has not yet occurred and further that the Secretary of the Treasury has the authority under IRC Section 7805(a) to provide transition relief in the implementation of a law relating to taxation. Providing a full evaluation of the merits of this argument would require more time and research than I wish to devote to the matter. Suffice to say that I personally would not wager a significant sum on the outcome either way, but I would be particularly loath to bet on the administration’s theory that Section 7805(a), which makes no reference to “transition relief” at all, somehow gives the Secretary authority to provide such relief in contravention of specific statutory mandates.

Note that the issues in my hypothetical lawsuit might be slightly different than if there were a direct challenge to the legality of the Treasury Department’s regulatory action under the Administrative Procedures Act, in which case the court might be more inclined to defer to the agency’s interpretation of its obligations under the law. For example, it is possible, as Professor Bagley observes, that a court would conceptualize the action simply as an exercise of enforcement discretion, rather than an attempt to waive legal obligations set forth in law. In other words, the Treasury Department did not actually delay the employer mandate (the story would go), but merely announced its intention not use scarce resources to collect penalties against employers who violate the mandate in the first year. This may not ultimately be a persuasive argument (Bagley isn’t persuaded), but a court is unlikely to view it as frivolous either.

In short, the courts will likely view the question of the “legality” of the employer mandate delay as the type of routine administrative law issue they face every day. This, more than a full-throated defense of the administration’s legal position, was the point Simon Lazarus and Professor Dellinger were making at the Rules Committee hearing. After all, every administration must interpret and apply thousands of complex statutory provisions (often conflicting and/or poorly drafted, to boot) every day. Even if an administration were just “calling balls and strikes,” to use Chief Justice Roberts’ phrase, it would inevitably be judged to have violated the law on a fairly routine basis. So even if the courts were to declare the administration’s action with regard to the ACA illegal, what’s the big deal?

This merely underscores that the question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Continue reading “The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?”

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Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising because Mark Mazur, Assistant Secretary of the Treasury for Tax Policy, was very specific in explaining the legal basis claimed for the administration’s action.

Mazur’s letter of July 9, 2013 to the Honorable Fred Upton, Chairman of the House Energy and Commerce Committee, explains the decision “to provide transition relief with respect to three provisions of the ACA: reporting by certain employers under section 6056 of the Internal Revenue Code (“the Code”); reporting by insurance companies, self-insuring employers, and other entities that provide health coverage under section 6055 of the Code; and the employer shared responsibility provisions under section 4980H of the Code.” This “transition relief” meant “no employer shared responsibility payments will be assessed for 2014,” although employers were “encouraged” to “maintain or expand health coverage for 2014.” IRS Notice 2013-45. In effect, the Treasury Department waived the legal obligation of the employer mandate, which under the ACA was to take effect January 1, 2014, for a one-year period.

Mazur’s letter is succinct with regard to the legal authority for this action: “The Notice is an exercise of the Treasury Department’s longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.”

That’s it. That’s the entire claimed legal justification for the employer mandate delay: section 7805(a) of the Internal Revenue Code. But I did not hear that code section mentioned once during all of the Wednesday’s testimony. Instead, there was a good deal of discussion, much of it in fairly vague terms, about general principles of administrative law that recognize some agency discretion to adjust statutory deadlines in a “reasonable” fashion. Whatever the merits of that legal position, it was not the justification offered by the Obama administration to Congress.

Section 7805(a) provides, in its entirety, as follows:

Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

The one thing that is very clear from this language is the identity of the person empowered to prescribe the regulations referred to by the section. It is the Secretary of the Treasury. Not the President. Not the Assistant Secretary for Tax Policy. Not anyone the Secretary might care to designate. Indeed, one might plausibly read the section as not providing substantive regulatory authority at all, but simply as identifying the Secretary as the default authority for issuing all rules and regulations not expressly delegated to another official.

Yet during the entire Rules Committee hearing, I do not believe I heard a single reference to the Secretary, either by name or title. In contrast, there were many, many statements from both the majority and minority side ascribing the relevant decisions to the President.  See, e.g., Written Statement of Simon Lazarus (“[T]he President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description.”).

This is very peculiar. Whatever the scope of the authority provided by Section 7805(a), that authority clearly falls within the Secretary’s job description, not the President’s. Constitutional scholars, of course, have long argued the extent to which department heads and other executive officials can be given legal duties and authorities insulated from presidential oversight (the “unitary executive” debate), but that is a far cry from treating the Secretary of the Treasury as if he were the Charlie McCarthy to the President’s Edgar Bergen (yeah, I know, I’m old).  Hamilton must be turning in his grave.

Moreover, there is no indication in Mazur’s letter to Chairman Upton that President Obama had anything to do with the decision to extend the employer mandate. The letter is rather sketchy on the details of the decision-making process, but it clearly indicates that the impetus for the decision were “concerns about complying with the reporting requirements and the time needed to implement them effectively.” The Treasury Department evidently felt that there was not enough time to implement the reporting obligations of the law in a way that would avoid imposing burdensome or impractical requirements on the business community.  Moreover, Mazur makes it clear that the decision to extend the employer mandate was simply a necessary result of delaying the reporting requirements. See 7-7-13 Letter at 2 (“We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.”).

If Mazur’s explanation is even close to being true, it is apparent that President Obama could not have played a prominent role in making the decision to extend the employer mandate. Surely no one thinks that Obama was involved in drafting or evaluating the reporting requirements for employers and insurance companies, any more than he was writing code for healthcare.gov. The idea of extending the reporting deadlines, and as a consequence the employer mandate, would have had to originate with the Treasury officials directly responsible for these aspects of the law, and those officials presumably conducted a policy and legal analysis of this alternative among others for consideration by the Secretary of the Treasury. No doubt, given the policy and political importance of the issue, the Secretary presented his decision or proposed decision to the White House for approval, but this should have occurred well after the Treasury Department had thoroughly vetted the issue.

From this it should be apparent that the official accountable to Congress, at least in the first instance, for the decision to delay the employer mandate is Jacob Lew, the Secretary of the Treasury. Any analysis of the House’s remedies with regard to this decision must begin with that understanding.

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The Declaration of Impotence

On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.”

The memo goes on to say that on a wide range of matters, including health care, energy, foreign policy and education, “President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce—at times even boasting about his willingness to do it, as if daring the American people to stop him.”

So what will the People’s House do in response to these repeated injuries and usurpations? The Speaker declares:

I intend to bring to the floor in July legislation that would authorize the House of Representatives—through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG)—to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country. The legislation would follow regular order and be considered by the Rules Committee following its introduction prior to consideration by the full House.

Wow. It’s like the Declaration of Independence ended with a solemn promise to retain counsel and consider all available legal remedies against George III, including seeking a declaratory judgment against continued collection of that tea tax. (Well, I guess U.S. v. Hanover couldn’t have gone much worse than U.S. v. Windsor).

Now mind you the Speaker is not, as has been widely reported, saying that he will bring suit against the president immediately. Or even in the “coming weeks.” Instead, sometime in July he will introduce legislation, which will go through “regular order” and eventually be considered by the full House.

Only in the “coming weeks” after this legislation is adopted, whenever that may be, will the House be “authorized” to bring suit against the president. And note it is unclear whether by “legislation” the Speaker means a House resolution or a bill. If he means the latter (which is the more common use of the term), the “coming weeks” will be coming in 2017 at the earliest (after the election of a new president who might sign such a bill).

Even if the promised lawsuit were to be filed, however, its chances of success are basically zero. I will explain one reason why in my next post.

In fairness, the Speaker has identified an important problem for which an effective solution will not be easily found. But I am pretty sure this lawsuit is not it.

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If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States

From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel

Date: April 1, 1792

Re: Assertion of executive privilege in response to congressional requests for information

In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On March 27, the House of Representatives appointed a special committee to conduct an investigation of recent military operations initiated by Major General Arthur St. Clair, the governor of the Northwest Territory. As this represents the first time the House has authorized an investigation of this sort, our response will set an important precedent.

To briefly review the relevant facts, for the past several years the United States has been engaged in both diplomatic negotiations and military conflict with Indian nations in the Northwest Territory. Pursuant to orders from President Washington, in 1790 St. Clair sent General Josiah Harmar to lead a punitive expedition against the more recalcitrant elements of the indigenous population. This effort did not go well. Harmar lost about 200 men in battle and did not achieve his objective.

Last year St. Clair personally led another offensive against the Miami Indians in the Ohio region. The results were even worse. On November 4, 1791, St. Clair’s army was surrounded and completely destroyed by Indian forces. In a letter to the Secretary of War, St. Clair described this “as unfortunate an action as almost any that has been fought.” 3 Annals of Congress 1055. St. Clair is now considering an early retirement.

The House has empowered its committee “to call for such persons, papers and records, as may be necessary to assist their inquiries.” 3 Annals of Congress 493. Pursuant to this authority, the committee has made a broad request to the President for documents that might shed light on the causes of St. Clair’s defeat. We view this as a “fishing expedition” for politically explosive or embarrassing information that might gain the committee members some attention in the press.

The President has asked his cabinet for advice on how to respond to the committee request. Specifically, he wishes to know whether the House has the constitutional authority to seek the information requested and whether he may or should withhold any of the responsive documents.

We accept that the House is an inquest and is entitled to request documents and other information from the executive branch. See generally Mort Rosenberg, Congressional Oversight Manual (1st ed. 1791). However, this principle must be limited by a doctrine we have termed “executive privilege,” which subsumes the privileges set forth below: Continue reading “If the Washington Administration Had an Office of Legal Counsel . . .”

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Is SSCI Following the Senate Rules?

According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.”

But, wait, SSCI can’t “declassify” anything. Classification and declassification are internal executive branch procedures. Indeed, the press release goes on to say:

The executive summary, findings, and conclusions—which total more than 500 pages—will be sent to the president for declassification review and subsequent public release. President Obama has indicated his support of declassification of these parts of the report and CIA Director Brennan has said this will happen expeditiously. Until the declassification process is complete and that portion of the report is released, it will remain classified.

That makes it sound as if SSCI has merely asked the executive branch to declassify the materials, which is quite different from actually declassifying them.

So what is actually going on here? Continue reading “Is SSCI Following the Senate Rules?”

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Chris Donesa on the SSCI/CIA Dispute

Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute.

Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by removing certain documents, including drafts of the “Internal Panetta Review,” from the CIA facility without getting pre-clearance to do so. I agree with Donesa that Feinstein clearly, though implicitly, acknowledged such a violation. She claimed in her statement that the removal of the documents was lawful and in keeping with the “spirit” of the agreement (because the committee redacted the information that it believed the CIA would legitimately be able to protect). The corollary is that SSCI violated the letter of the agreement, and I doubt that the CIA would agree that SSCI complied with the agreement’s spirit either.

I would note here that Feinstein doesn’t say whether she authorized the committee staff to remove the documents. But she is clearly saying that the staff acted properly because “there was a need to preserve and protect the Internal Panetta Review in the committee’s own space.” If they had not done so, she suggests, the CIA might have removed the committee’s ability to access the documents at the CIA facility. Moreover, the CIA might have destroyed the documents altogether.

Donesa finds the last suggestion, in particular, rather implausible under the circumstances, and this would be my first reaction as well. But the most important point is that Senator Feinstein is accusing the CIA of being such a rogue agency that it cannot be trusted to avoid even the reckless and unlawful step of destroying evidence specifically known to and demanded by its oversight committee.

So the question I would raise is whether Feinstein’s charge should be viewed as merely the sort of hyperbole we have come to expect in the back and forth of Washington bickering, or whether it should be taken seriously. And if the latter, what is the proper mechanism for adjudicating such an extraordinary charge?

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But Other Than That, the CIA Has Been Very Cooperative With SSCI’s Investigation

Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning:

Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program.

In 2007 the CIA destroyed videotapes, over the objections of White House Counsel and the DNI, of certain enhanced interrogations.

In early 2009, SSCI staffers provided an initial report indicating that “[t]he interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”

After SSCI initiated a full investigation, SSCI agreed, at the request of then- CIA Director Panetta, that it would review CIA documents relevant to its investigation at a secure CIA facility in Northern Virginia. A process was agreed to under which SSCI would be provided with a “stand-alone computer system” that would not be accessed by CIA personnel, other than IT, without SSCI’s permission.

The CIA sent up a laborious and expensive document review process under which every responsive document was reviewed by outside contractors to make sure that SSCI did not receive documents that were either beyond the scope of its requests or potentially subject to a claim of executive privilege.

Beginning in mid-2009, the CIA began producing documents, eventually running into millions of pages, without index or organizational structure, a “document dump.”

SSCI asked the CIA to provide an electronic search tool so it could sort through these documents.  The CIA provided this tool, and SSCI staff used it to identify important documents, which they would then print out or copy to a separate folder on the computer. Eventually the staff identified thousands of such documents in the committee’s secure space at the CIA facility.

In May 2010, SSCI staff noticed that certain documents that had previously been made available for their review were no longer accessible on the SSCI computer at the CIA facility. It later turned out that CIA personnel, without the knowledge or approval of SSCI, had removed 870 documents or pages of documents in February 2010 and another 50 in May 2010. These actions violated the written agreements between SSCI and the CIA and represented the exact sort of CIA interference in the investigation that SSCI had sought to avoid at the outset.

When confronted by SSCI staff, CIA personnel first blamed IT contractors. Then the CIA stated that the removal of the documents was ordered by the White House. This claim was denied by the White House.

The White House Counsel and the CIA gave Senator Feinstein a renewed commitment that there would no further unauthorized access to the committee’s network or removal of CIA documents already provided to the committee. On May 17, 2010, the CIA director of congressional affairs apologized on behalf of the CIA for the removal of the documents.

Sometime during 2010, SSCI staff located draft versions of the “Internal Panetta Review” among the documents made available to the committee at the CIA facility. These documents reached the same conclusions as the committee did with regard to certain “troubling matters” uncovered in its investigation. These documents were identified by SSCI staff as important and were printed out and electronically copied in accordance with their normal practice.

Some, though not all, of the IPR documents were marked as “deliberative” or “privileged.” This was not considered noteworthy because many documents provided to SSCI by the CIA have such markings. Senate Legal Counsel has also advised that these claims of privilege are not recognized by Congress.

Sometime after SSCI staff identified and reviewed the IPR documents, most likely in 2010, the CIA removed access to the vast majority of them. This violated both the CIA’s initial agreements and later assurances by the White House and the CIA that there would be no further removal of documents.

In December 2012, SSCI produced a 6,300 page study of the CIA’s Detention and Interrogation Program and sent it to the CIA for comment.

On July 27, 2013, the CIA provided SSCI with its response. Although the CIA agreed with some parts of the SSCI study, it disagrees with and disputes important parts of it. Importantly, “[s]ome of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.”

After noting the disparity between the official CIA response and the draft IPR, SSCI staff “securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.” This complied with the spirit (if not the letter) of SSCI’s agreements with the CIA because SSCI redacted from these documents the kind of information (names of CIA non-supervisory personnel and names of specific countries in which CIA detention sites were operated) that the CIA was trying to protect. There is no legal prohibition against what SSCI staff did.

Given the CIA’s past practice of removing or destroying information related to the detention and interrogation program, “there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.”

In late 2013, Senator Feinstein requested a final and complete version of the IPR be provided to the committee. In early 2014, the CIA refused this request, citing the deliberative nature of the document.

On January 15, 2014, CIA Director Brennan informed Chairman Feinstein and Vice Chairman Chambliss that, without prior notification or approval, the CIA had conducted a search of the SSCI computers at the CIA facility. This search was conducted in response to indications that SSCI staff had already obtained access to the IPR. The CIA did not, either prior to the search or thereafter, ask SSCI how it acquired information regarding the IPR. Despite this, someone has made anonymous allegations 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.”

On January 17, 2014, Senator Feinstein wrote to Director Brennan objecting to any further CIA investigation regarding the activities of SSCI staff due to separation of powers concerns about the search and any further investigation. She followed up with a letter on January 23 asking 12 specific questions about the CIA’s actions. The CIA has refused to answer these questions.

Senator Feinstein believes that the CIA’s search may well have violated basic separation of powers principles, the Speech or Debate Clause and the Fourth Amendment, as well as the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance. Senator Feinstein has demanded an apology from the CIA and a recognition that the search was inappropriate. She has received neither.

The CIA Inspector General has initiated an investigation of the CIA search and has referred the matter to the Department of Justice for possible criminal investigation.

Senator Feinstein has also learned that the CIA’s acting General Counsel has “filed a crimes report with the Department of Justice concerning the committee’s staff actions.” This apparently took place after the IG made his referral to the Justice Department. Senator Feinstein believes that there is no legitimate reason for the acting General Counsel (who she notes was heavily involved in the activities covered by the committee’s study of the detention and interrogation program) to have taken this action. She “view[s] the acting general counsel’s referral as a potential effort to intimidate this staff.”

She says “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.”