Consensus, Not Oversight

Earlier this week, CIA director Leon Panetta advised us that we all need to stop worrying about war crimes of the past (our past), put CIA black sites and “ ‘enhanced’ interrogation techniques” behind us, and move on. (After all, the CIA was just following orders only “implements presidential decisions”; it “does not make them.”)

So, in Mr. Panetta’s honor, here are two blog posts — also from earlier this week — written by Glenn Greenwald. The first, dated July 30, concerns repeated threats made by the Obama administration to “cut off intelligence-sharing programs with the U.K. if the British High Court discloses information which British intelligence officials learned from the CIA about how [Binyam] Mohamed [a former Gitmo detainee and a British citizen] was tortured.” (Emphasis is Glenn’s.)

In August 2008, the British High Court ruled in Mohamed’s favor, concluding in a 75-page ruling (.pdf) that there was credible evidence in Britain’s possession that Mohamed was brutally tortured and was therefore entitled to disclosure of that evidence under long-standing principles of British common law, international law (as established by the Nuremberg Trials and the war crimes trials of Yugoslav leaders, among others), and Britain’s treaty obligations (under the Convention Against Torture).  But as part of that ruling, the Court redacted from its public decision seven paragraphs which detailed the facts of Mohamed’s torture — facts which British intelligence agents learned from the CIA — based on the British Government’s representations that both the Bush and Obama administrations had threatened to cut off intelligence-sharing with Britain if those facts were disclosed, even as part of a court proceeding.

The British government’s claims about these threats led the British High Court to conclude that it could not disclose those facts in good conscience because the U.S. was, in essence, threatening to put the lives of British citizens at risk by terminating intelligence-sharing over terrorist threats. …

The second, from the next day, July 31, is about two more Gitmo detainees who have been ordered released by federal judges following habeus review of their cases:

This week, two more Guantanamo detainees — Khaled Al-Mutairi from Kuwait and Mohamed Jawad of Afghanistan — were ordered released by federal judges on the ground that there was insufficient evidence to justify their detention.  The Washington Independent’s Daphne Eviatar notes this amazing fact: ”In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison.”  Virtually all of those detainees were held for many years without charges and with no opportunity for judicial review.  Once they finally got into a court, federal judges (including Bush-43 appointed judges) in the vast majority of cases concluded there was virtually no credible evidence ever to justify their detention. …

Finally, Marcy Wheeler has a direct response to Panetta’s op-ed that is well-worth your time:

Remember when the Obama Administration appealed to a “fundamental compact” between Congress and the Executive Branch when arguing the intelligence community didn’t need more oversight? (”Fundamental compact, my ass,” I thought was the best response.)

Well, Leon Panetta’s out with a similar appeal to inflated, but totally bogus, language in an attempt to avoid increased Congressional oversight. This time, he appeals to “consensus” as the core of congressional oversight.
[...]
The last eight years have proven that Congress is utterly impotent to stop covert actions the Executive Branch wants to do. Congress’ unsuccessful attempt to stop the data-mining of American citizens by defunding it proves that point. And other tactics used by the Bush Administration–such as funding covert activities in supplemental appropriations or having JSOC carry out those activities instead of CIA, both to completely side-step the intelligence committees’ oversight–further proves Congress’ utter impotence to influence Executive Branch activities.

So when Panetta appeals to consensus as a cornerstone of oversight, when he says “we need broad agreement,” he’s basically saying, “Congress must agree with the Executive Branch.” “Deteriorating consensus,” in this context, is just a pretty way of saying “blowing off Congress” in the face of opposition. When Panetta suggests there needs to be a “balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused,” he’s basically arguing that oversight must stop short of actually criticizing CIA, however merited.