By John Solomon
Washington Post Staff Writer
Sunday, July 15, 2007
An independent oversight board created to identify intelligence abuses after the CIA scandals of the 1970s did not send any reports to the attorney general of legal violations during the first 5 1/2 years of the Bush administration's counterterrorism effort, the Justice Department has told Congress.
Although the FBI told the board of a few hundred legal or rules violations by its agents after the Sept. 11, 2001, attacks, the board did not identify which of them were indeed legal violations. This spring, it forwarded reports of violations in 2006, officials said.
The President's Intelligence Oversight Board -- the principal civilian watchdog of the intelligence community -- is obligated under a 26-year-old executive order to tell the attorney general and the president about any intelligence activities it believes "may be unlawful." The board was vacant for the first two years of the Bush administration.
The FBI sent copies of its violation reports directly to Attorney General Alberto R. Gonzales. But the board's mandate is to provide independent oversight, so the absence of such communications has prompted critics to question whether the board was doing its job.
"It's now apparent that the IOB was not actively employed in the early part of the administration. And it was a crucial period when its counsel would seem to have been needed the most," said Anthony Harrington, who served as the board's chairman for most of the Clinton administration.
"The White House counsel's office and the attorney general should have known and been concerned if they did not detect an active and effective IOB," Harrington said.
Senate Judiciary Committee chairman Patrick J. Leahy (D-Vt.) added: "It is deeply disturbing that this administration seems to spend so much of its energy and resources trying to find ways to ignore any check and balance on its authority and avoid accountability to Congress and the American public."
White House spokeswoman Dana Perino said Friday that "the president expects every single person working in counterterrorism and intelligence strictly to follow the law -- and if there are instances where that has not occurred, either intentionally or non-intentionally, he expects it promptly to be corrected." She said the White House relies on the presidentially appointed director of national intelligence to monitor problems.
Through five previous administrations, members of the board -- all civilians not employed by the government -- have been privy to some of America's most secret intelligence operations and have served as a private watchdog against unpublicized abuses. The subjects of their investigations and the resulting reports are nearly all classified.
The Bush administration first appointed board members in 2003. Since then, the CIA and the National Security Agency have been caught up in controversy over interrogation tactics at secret prisons, the transfer of prisoners to countries that use torture, and domestic wiretapping not reviewed by federal courts.
Until recently, the board had not told the attorney general about any wrongdoing. "The Attorney General has no record of receiving reports from the IOB regarding intelligence activities alleged to be potentially unlawful or contrary to Executive Order or Presidential directive," the Justice Department told the House Judiciary Committee in a May 9 letter.
White House officials said the board began forwarding reports of problems shortly thereafter. The officials declined to discuss the board's interactions with President Bush and said its members could not be interviewed for this report.
President Gerald R. Ford created the board in the mid-1970s after the Church Committee identified numerous abuses by U.S. intelligence agencies. President Ronald Reagan made the board permanent with an executive order in 1981 and gave it the mission to identify legal violations.
Harrington said that under President Bill Clinton, the board promptly sent reports of legal violations by intelligence agencies to the attorney general. Officials said the panel concluded that the administration showed poor judgment in supporting Iranian arms shipments to Bosnia, and it complained about the CIA's policy of employing known torturers or killers as informants in Latin America.
Perino said that during the first two years of the Bush administration, a career intelligence officer at the White House collected and reviewed reports in which the FBI and other intelligence agencies self-disclosed violations of civil liberties and privacy safeguards.
The board's three or four members -- the number has alternated over the years -- are usually drawn from the larger President's Foreign Intelligence Advisory Board, which advises the commander in chief on U.S. intelligence policy and performance. The oversight board has been a mix of intelligence experts, such as George H.W. Bush's choice of former Air Force Gen. Lew Allen, and civilians from other walks of life, such as Clinton's choice of Philadelphia investment banker Harold Pote.
The board now in place is led by former Bush economic adviser Stephen Friedman. It includes Don Evans, a friend of the president and a former commerce secretary; former Adm. David Jeremiah; and lawyer Arthur B. Culvahouse.
Perino said the board's "original unique mission and primary oversight role has been supplemented" in recent years by new layers of government. To watch for abuses, the administration now relies on the director of national intelligence -- a job created in 2005 -- along with presidentially appointed inspector generals. As a result, Bush is considering changes to Reagan's executive order, Perino said.
A Clinton-era deputy national security adviser, James B. Steinberg, said, however, that "you have to have a civilian proxy who on one hand can be trusted with these secrets and can still call the operator on the carpet when they go astray. If you neuter these internal mechanisms, then you are basically saying there is no one watching the henhouse."
On Friday, the FBI and the Justice Department announced several changes meant to strengthen internal oversight, including the creation of a legal "compliance office" inside the bureau and a review office inside the department that will regularly examine all violations.
Separately, Gonzales wrote the top Republican on the Senate Judiciary Committee, Sen. Arlen Specter (Pa.), on Friday to defend his 2005 testimony that there had been no verified civil liberties abuses during the first three years of the efforts against terrorism. The Washington Post reported last week that the FBI had sent Gonzales a half-dozen reports of violations of civil liberties and privacy safeguards before his testimony.
Gonzales wrote that he did not consider the conduct in those reports to be abuses because the violations involved mistakes, not deliberate misconduct. "My testimony was completely truthful, and I stand by that testimony," he wrote.
Leahy scoffed at Gonzales's explanation. "The American people deserve an attorney general who will fully and accurately inform the Senate and the public about violations of civil liberties. Instead, they have one who misleads Congress and then hides behind dictionary definitions," he said.