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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.”

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Andrew Johnson, the New York Times and the Public Debt Clause

After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”

This seemed to me to be a pretty narrow request and, as it turns out, Treasury identified a mere 755 pages responsive to my request. It released 432 pages, some of which were redacted, mostly consisting of printouts of public materials like newspaper articles and transcripts of news programs or congressional hearings. You can peruse the whole thing here.

The remaining 323 pages (aka the good stuff) were withheld in their entirety.

Despite its best efforts, though, Treasury did provide a few interesting tidbits. It produced a number of pages consisting of materials (cases, law review articles, etc.) that were apparently considered relevant to the legal analysis of the Public Debt Clause. Today I want to focus on one of these documents (found at page 386 of the production), which is a New York Times editorial dated December 11, 1868.

The NYT was very upset by a proposal made by outgoing President Andrew Johnson that would have altered the terms on which the large national debt incurred during the Civil War would be repaid. Johnson was apparently proposing that the interest payments (at six percent) required on the bonds be used instead to reduce the principal. The NYT responded:

Coleridge says “a knave is only a roundabout fool.” Mr. Johnson illustrates the doctrine. What does he think he gains by his talk about using the interest to pay the principal? Why does he not propose, openly and without circumlocution, to repudiate the debt wholly and completely? Applying the interest to reduce the principal is simply confiscating the interest and using the amount of which the creditor is thus robbed toward paying the debt. The interest is as much due the creditor as the principal; and to talk about withholding the one, to pay the other, is to talk nonsense, and very dishonest nonsense at that.

Ah, the good old days of civility in politics. But what does this have to do with the Public Debt Clause? Well, despite the NYT’s virulent opposition to Johnson’s idea, there is no suggestion in the editorial that the proposal would be unconstitutional or, more specifically, that it would violate Section Four of the Fourteenth Amendment, which had been ratified mere months earlier (July 9, 1868).

Of course, an omission in a NYT editorial will bear only so much weight. But if there is no evidence that anyone at the time thought Johnson’s proposal, which appears to amount to a partial repudiation of the debt, violated the Public Debt Clause, it is hard to to give credence to the far more aggressive reading of the Clause now advanced by Professor Epps and others in connection with the statutory debt limit.

Good catch, nameless Treasury Department lawyer. Too bad your department’s penchant for secrecy prevents you from receiving your due.

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The Debt Limit and the Paradox of the Post-Nuclear Senate

The Senate is set to vote on cloture for the debt ceiling bill that passed the House on Monday. If the cloture vote should fail (i.e., if there are not 60 votes to end debate and advance the measure to final passage), we will have an interesting illustration of the paradox of the post-nuclear Senate. As Professor Seth Barrett Tillman has observed, since the Senate Majority Leader has already asserted the power to change/suspend/reinterpret(depending on how you want to look at it) the Senate rules by simple majority vote,  it is not clear in what sense the minority still has the power to prevent the bill from passing. It has the power only so long as the majority allows it to do so, which seems a lot like not having the power at all.

For ordinary legislation, one might argue that the filibuster rule, while not truly binding on the majority (or not recognized by the majority as binding, anyway), reflects a Senate norm that significant legislation should not be passed with narrow majorities. But the President and his congressional allies have advanced a theory that the debt limit is different than ordinary legislative matters. Raising the debt ceiling, it is claimed, is a technical necessity to prevent default on existing debt and potentially catastrophic economic consequences. For that reason the President has declared the debt limit exempt from the normal give and take of the legislative process and has decreed that he will only accept a “clean” debt limit bill.

The House leadership bowed to the President’s unwillingness to negotiate and allowed a clean debt limit measure to come before the House. The vast majority of Republicans voted against the bill, but there were enough Republicans voting for it, including the Speaker and House Majority Leader, to allow the bill to pass.

The argument will be made that Senate Republicans, even though they may prefer to vote against the debt limit bill for symbolic/political/ideological reasons (as Senator Obama did a number of years ago), have an obligation to produce enough votes to allow cloture to be invoked. But this argument loses much of its force in a post-nuclear Senate. If the Senate majority believes that the debt limit is so important, how could it justify not invoking the nuclear option to move the bill to final passage? Clearly there is no legal argument against doing so other than those which would have been equally applicable to the majority’s previous invocation of the nuclear option.

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What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

Continue reading “What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much”

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Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

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Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

Continue reading “Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation”

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The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

Continue reading “The Fast and Furious Litigation: High Stakes for Congressional Oversight?”

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Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).