March 18

For the Central Intelligence Agency’s covert warriors, disdain for the law comes with their mandate. From its drone attacks to its destabilization efforts, the CIA is tasked with operating, as former vice president Dick Cheney put it, “ in the shadows,” trampling international law.

The CIA, shielded by secrecy, armored by its national security mandate, pursues its mission with far too little accountability. The agency’s warriors operate on the president’s writ, but presidents generally seek deniability. After Sept. 11, the agency was given a virtually limitless charter to do things that presidents would rather not know about.

Congress set up intelligence committees to provide oversight of the agency, but senators, while generally happy to get a peek behind the curtain of secrecy, know better than to probe too far.

The peril is apparent. The covert warriors who trample laws abroad in the name of national security are likely to scorn legal limits at home. That is what is at stake in the deepening scandal of the CIA’s subversion of the Senate intelligence committee’s investigation of its shameful and unlawful program of torture during the Bush administration.

Amid the charges and countercharges, the truth is clear. The CIA ran these barbarous programs for several years. An agency report later concluded that torture was ineffective. The agency not only suppressed that conclusion; its leaders lied to the Congress about it, while its agents destroyed tapes of the torture sessions. Faced with a serious Senate investigation, the CIA withheld documents and wasted years demanding that outside contractors read and reread an astonishing 6.2 million documents before providing some of them to professional Senate staffers with appropriate security clearances.

When the Senate staffers finally produced a 6,000-page report that allegedly documented the program’s brutality as well as its ineffectiveness, the CIA blocked its publication, dissenting from its conclusion. When it was discovered that the Senate staffers had possession of the CIA’s own internal review that reaffirms the report’s conclusions, the agency didn’t go after those who lied to the Congress, it went after the Senate staffers, snooping on their computerized work product and threatening them with investigation and prosecution.

The wanton obstruction finally outraged Senate intelligence committee Chairman Dianne Feinstein, who has been a staunch defender of the agency and its covert programs. On matters of national security, like Hillary Clinton, Feinstein would rather be tough than smart. That the CIA’s actions have now outraged even Feinstein reveals that the CIA’s misbehavior has triggered a full-scale constitutional crisis.

Through all this, President Obama has been absent without leave. Upon taking office, the president chose to “look forward and not backwards” and declined to prosecute or even fully investigate the perpetrators of the torture operations, arguing that he didn’t want CIA employees “to suddenly feel like they’ve got to spend all their time looking over their shoulders.” Obama not only didn’t dismiss those involved, he named some to higher positions, from CIA Director John Brennan on down.

Feinstein is clearly dismayed that the CIA’s acting general counsel, involved with threatening Senate staffers, was previously the chief lawyer for the CIA unit that managed the torture program. The president says he wants the Senate report published but refuses to overrule the agency’s refusal to allow declassification. Brennan defends the CIA’s Senate committee abuses, but the president says he continues to have faith in him.

This showdown can’t be ignored. At stake is whether the CIA is accountable to the Congress and the law. At stake is also whether the secret activities of the national security state can in fact overrule the laws of the republic.

It is long past time for the president to assert authority over his own administration. Brennan astonishingly claims the CIA has done nothing wrong. But he correctly says the president “can ask me to stay or to go.”Obama should take him up on the latter option while ordering declassification of the Senate report.

Beyond that, the Justice Department should be ordered to initiate an investigation of the CIA’s subversion of a legitimate Senate investigation. The perpetrators should be prosecuted and dismissed. And the Senate should bestir itself to assert its constitutional prerogatives. It is long past time for an independent, bipartisan special committee — modeled on the Church Committee that investigated intelligence agency lawlessness in the 1970s — to be chartered to provide a comprehensive investigation of the activities of the intelligence agencies after Sept. 11, revealing the abuses, reviewing the claimed authority and strengthening the legal limits on the secret state.

Obama is wrong: We do want the CIA “looking over its shoulder” at the laws of the republic. If the scandals of torture, drones murdering innocents from the sky, kidnapping and rendition, innocents held without charges and without review for years, National Security Agency spying on U.S. citizens and more do not trigger a reassertion of law, then the national security state will grow ever more scornful of the Constitution it is supposed to defend.

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