03/24/2014 11:34 am ET Updated May 24, 2014

Obama, the CIA, Congress, and the Constitution

The President of the United States has one overriding obligation: to uphold the Constitution and to enforce the laws of the land. That is the oath he swears on Inauguration Day. Failure to meet fully that obligation breaks the contract between him and the citizenry from whom he derives his authority and on whose behalf he acts. The consequence is to jeopardize the well-being of the Republic.

There are substantial grounds for judging Barack Obama to have violated his oath. At issue is the President's complicity in the Central Intelligence Agency's violation of its Constitutionally prescribed duty to respect the Congress' oversight of its activities. This duty is reinforced by explicit stipulations of the CIA's enabling statutes. There is no exemption or qualification. Responsibility for the conduct of the CIA lies with the Office of the President as head of the Executive Branch of which the CIA is a constituent part. Its Director, currently John Brennan, is appointed by the President and accountable to him. On March 10 of this year, Senator Dianne Feinstein, Chair of the Senate Intelligence Committee, spoke on the floor of the Senate to condemn the CIA for undertaking extensive electronic spying on the Committee and its staff by hacking its computers. The motive for doing so was to determine when and how the Committee had read a report prepared three years earlier during the tenure of then Director Leon Panetta that critically examined the Agency's record in conducting interrogations as part of the Global War On Terror (GWOT). That report has been concealed from the Committee in violation of law and practice.

The episodes encompass several phases; its main features can be summarized as follows. In 2009, the Intelligence Committee undertook a review of the CIA's interrogation methods so as to determine exactly what techniques were used, whether they constituted prohibited torture under American and international law, and the value of the intelligence obtained. Their task was complicated by the Agency's willful destruction of video tapes and recordings made at the time those questionable actions were occurring. Upon entering office, President Barack Obama refused to investigate who had ordered and carried out that violation of the law. John Brennan was making the transition from a long career at the CIA (and briefly in the security business) to being appointed as Obama's Homeland Security and Counter Terrorism advisor (after having been considered for appointment as CIA Director). He previously had been George Tenet's Chief of Staff

Independently, a parallel investigation had been undertaken at the CIA involving the Inspector General's office. The conclusions of the report, known as the "Panetta Report" and completed in 2010, apparently contradicts the official CIA position as to the kind of interrogation methods employed, their value, and the legal authority under which they were conducted. That is the report which has been requested by the Senate Intelligence Committee - the request repeatedly denied by John Brennan and his predecessors David Petraeus and Michael Morrell. This obstruction has resulted in the delayed release of the Senate's own report which was completed and scheduled to be officially deposited in December of 2012 with an abridged, sanitized summary to be made public.

The Senate Committee has continuously made known to the CIA the progress of its investigation and has shown Brennan and his colleagues drafts. Brennan wrote a 122 page rebuttal to what was designated the final draft, but he claimed not to have consulted the long completed internal Panetta review. Senate Committee staff did gain access to the "Panetta" report when it appeared among the CIA materials they were reviewing while working at secure Agency premises near Langley. They recognized that its conclusions and those in the Senate Committee draft coincided and that they directly contradicted most of what Brennan's rebuttal had asserted. But CIA officials breached the committee's network in 2010 to remove documents the Agency had included in the files seen by Committee staffers. They included the "Panetta Review" that, according to Feinstein, found "significant CIA wrongdoing," and corroborated the still-classified Senate report.

It was that exposure that led Brennan to hack the Committee staff computers. His later decision to charge the Committee with purloining classified CIA internal documents seems aimed at diverting attention from those embarrassing contradictions, and his own suppression of the internal Agency report, by charging the Senate Committee with having illegally obtained the document. In other words, his illegal and unconstitutional denial of the Committee's access to a critical document to which they should be entitled, was to be masked by accusing the Senate staff of criminal behavior. The CIA's acting General Counsel, Robert Eatinger, made a formal submission to Attorney General Holder that the Department of Justice investigate the matter - an action that Feinstein calls "a potential effort to intimidate this staff." The formal "crimes report" he filed suggested that Congressional staffers had stolen the "Panetta" review.

Eatinger, who previously had been the Agency's chief legal adviser and who had signed off on the supposed questionable practices that are at the heart of the Senate's probe. He was the top lawyer for the CIA's Detention and Interrogation Unit from mid-2004 until January 2009, when Obama shuttered the CIA's black sites abroad - and it was Eatinger who counseled that it was legal to destroy the video tapes of what was done at those black sites. That is why he reportedly is cited 1,600 times in the Committee draft report. In another incident, Eatinger was among CIA lawyers and officers chastised by a senior federal judge in 2009 for withholding critical information in court proceedings about the status of an Agency operative who was accused of bugging a former federal narcotics agent's home.

White House complicity centers on three issues. First is its role in removing the "Panetta" documents from the CIA materials made accessible to the Senate Committee. Second is its knowledge of the CIA's breaking into the Senate Committee computers. The third is its role in Brennan's request to the DOJ for an investigation of possible criminal behavior by Committee staff.

As to disappearance of Agency documents, Senator Feinstein, in her Senate speech, asserted that she had been told by the CIA at one point that "the removal of the documents was ordered by the White House." Subsequently, the "Panetta" report too was removed by the CIA hackers. In the first instance, the White House denied giving the order. Since then neither the President nor his Press Secretary Jay Carney has denied Feinstein's assertion.* If Obama ordered their removal, it would accord with the draconian measures that his administration has taken to enforce absolute secrecy on the questionable practices of the United States' intelligence agencies past, present and future.

As to the White House's prior knowledge of the CIA's hacking of Senate Committee computers, evidence of White House complicity comes from a letter that Senator Mark Udall (D - Colorado) to president Obama on March 4 protesting the CIA's behavior. In it, Udall wrote: "As you are aware, the CIA has recently taken unprecedented action against the committee in relation to the internal CIA review and I find these actions to be incredibly troubling for the Committee's oversight powers and for our democracy." This declaration that Obama knew of the hacking has not been questioned by the White House. Brennan's readiness to spy on the Senate staff doubtless was encouraged by his having received at least tacit approval from the President. Indeed, he went so far as to tell Senator Feinstein personally, by her testimony, that the surveillance of Committee staff computers will continue.

As to the President's approval of the CIA's "crimes report" to the Attorney General, White House spokesman Carney said that Brennan and Eatinger informed the White House before making the referral. He went on to say that the President has "great confidence" in John Brennan."** It is inconceivable that Brennan, however choleric and aggressive his manner, would be so rash as to suggest that Senate staffers committed a crime unless he had a green light from the White House and understood that Barack Obama, to whom he was a long-time close advisor, "had his back."

It follows that Obama's statements that he is neutral about the issue are not to be credited. The President told reporters that "with respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it." (March 11) He went on to distance himself from the matter: "that's not something that is an appropriate role for me and the White House to wade into at this point." Against the backdrop of the White House's previous actions, this is disingenuous. It is vintage Obama casting himself as above the fray when in fact he has been personally involved in controversial decisions. First, he takes an illegal and/or illiberal initiative - behind the scenes; then when a ruckus erupts it's the pious "we're all well-intentioned; let's try to get along."

Moreover, the claim that the referral is "appropriate" is itself a defense of the CIA in its campaign to undercut the Senate Committee's performance of its constitutional function. In other words, on the constitutional issue the President's position is that one Department of the Executive Branch, headed by his close friend and handpicked appointee, will judge the actions of another Executive Agency also headed by handpicked Obama appointee who worked in the White House for four years - those actions having been taken with the President's prior knowledge and apparent approval.

It also is noteworthy that, independent of the above, President Obama's team has been withholding about 9,400 documents that the Intelligence Committee requested as part of its review of the CIA's detention and interrogation program. Since 2009, the White House has ignored or rejected multiple requests from the committee to review the documents. (McClatchy News March 12).

Conclusion. In respect to all three issues, the CIA under John Brennan's direction did not act as a rogue organization. The removal of the "Panetta" report and other documents from the Senate Committee computers, the hacking of the staff files, and the sending of a "crime report" to the Department of Justice occurred with the knowledge and approval of President Barack Obama.

The issue of the CIA's spying on the Senate Intelligence Committee stands out from other abuses by the United States' intelligence agencies directed at private citizens and groups insofar as the core Constitutional principle of separation of powers is at stake. The Executive's disingenuous legal arguments used to justify mass surveillance and spying cannot apply in this case. Therefore, the President's approval of the CIA's behavior constitutes a defiance of the Constitution itself.


* Here are Senator Feinstein's remarks on the matter: "In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee's review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House."

** John Brennan is a person who lacks credibility. He has a long record of playing fast and loose and with the truth. To cite the most egregious examples: this is the man who testified in March 2012 that there has not been a single civilian death in Afghanistan due to American airstrikes. Brennan denied that drone strikes result in civilian deaths, in part by relying on a metric that considers every military-age male to be a combatant unless definitively proven otherwise. "Fortunately, for more than a year, due to our discretion and precision, the U.S. government has not found credible evidence of collateral deaths resulting from U.S. counterterrorism operations outside of Afghanistan or Iraq," Brennan told The New York Times in 2011, in response to a story about the drone program.

This is the same man who, the day after Osama bin-Laden's killing, recounted to the press a lurid story of OBL shooting it out with the SEALS - implying even that he was holding his youngest wife as a shield while firing a pistol. (May 2, 2011 White House Press Conference). This total fabrication suggests someone with a tenuous grip on reality. It should not be forgotten that, during the George Tenet era at CIA, Brennan was his Chief of Staff and Deputy Executive Director. He was a main player in the decisions to conduct torture and abuse of suspected terrorists, and to render suspected individuals to foreign intelligence services that conducted their own torture and abuse.