Pruning Shears

No Associated Press content was harmed in the writing of this post

A couple of weeks ago Dick Cheney made headlines for accusing the Obama administration of “dithering” on its policy goals for Afghanistan. At this point Cheney does not deserve to be thought of as anything other than a crazy and potentially senile old coot, so the substance of what he said is irrelevant. Its subtext may be revealing, though.

The decision on the war should be viewed in the context of the shadowy activities that are taking place in Afghanistan, far away from any battlefields. The prison at Bagram seems particularly important; in Amy Davidson’s jaded but apparently accurate view “closing Guantánamo increases the need for a new Guantánamo.” Andy Worthington fleshed out her point by making the persuasive case that the Obama administration is keenly interested in having a place to stash inconvenient human beings that is completely outside judicial or congressional jurisdiction. It appears the CIA is handing suspects over to the military, and they exist completely within the military’s chain of command.

During the Bush years the administration favored use of the Gang of Eight briefing process, approved in 1980, in which “the executive branch is permitted by statute to limit notification to the chairmen and ranking minority members of the two congressional intelligence committees, the Speaker and minority leader of the House, and Senate majority and minority leaders, rather than to notify the full intelligence committees.” Unfortunately, there appears to be confusion over what is permitted with the briefing process; Jane Harman complained she was not allowed to take notes during the ones she attended or even discuss it with her colleagues.

Harman’s dissatisfaction shows what makes the Gang of Eight process a charade: The president decides when to use it and can bring enormous pressure to bear on those being briefed. Human nature is to err on the side of caution and to give the benefit of the doubt to those we work with. If the president says, “I’m going to tell you this, but it’s extremely sensitive and a leak could have grave consequences,” how defiant do you think any of those eight will be? Harman could have flatly said, I’m taking notes - try to stop me. She did not, though. Yes it was a failure of courage on her part, but no formula for effective oversight can have courage as a prerequisite. Interestingly, the FAS article points out there is officially no restriction to members of the Gang of Eight sharing details of the briefing with the full membership of the intelligence committees. It still seems designed to strongly discourage sharing and disclosure, though.

Presidents will not willingly give that up that power. Barack Obama has threatened to veto the Intelligence Authorization Act of 2010 over its repeal of the Gang of Eight provision. When it was initially revealed a number of bloggers, including Spencer Ackerman, Matt Yglesias and Marcy Wheeler, noted its significance. It did not make much of a splash in the larger outlets, though, and unfortunately has never become a topic for discussion among political or media elites.

Allowing the House and Senate Permanent Select Committees on Intelligence set their own briefing rules is a greatly needed reform. As long as the president can in effect keep Congress in the dark - and make no mistake that is exactly what the Gang of Eight process does - the CIA also has reason to lightly regard it. Silvestre Reyes can furrow his brow at the CIA all he wants, but he must understand that the Agency feels it can lie to Congress as needed because the oversight process is so anemic. (By the way, the SpacePolicyOnline.com article claims “no intelligence authorization bill has cleared Congress in four years.” If true that strikes me as noteworthy; failure to pass one presumably does not de-fund intelligence agencies. What kind of institutional inertia or perverse incentives are in play that makes failure to properly authorize a budget so attractive?)

Which leads back to Dick Cheney and Bagram. So far Afghanistan has been an executive branch playground. It is home for not just military adventure but a lawless netherworld into which all the unpleasant consequences of our aggrandized, arrogant and short sighted foreign policies can be hidden away. The courts don’t get to have a say and Congress doesn’t even have to be told. But if we pull out all our soldiers that situation will have to end. No wonder the former vice president wants lots of extra troops sent there, and the current president is so eager to keep news from there bottled up. America has heavily invested in a very dark project in Afghanistan. Transparency can only bring trouble.