The U.S. Constitution, redacted and nullified (graphic: Mike Licht-Notions Capital via Flickr)

Every once in a while, a news story crops up about yet another lie or omission regarding the briefings the CIA gave to Congressional intelligence committees on their interrogation aka torture program during the Bush years. Marcy Wheeler has been assiduously covering this for months, even years now, gathering together the disparate reports from a mostly disinterested mainstream press.

A few examples will suffice.

There was the time in July 2009 when House Intelligence Chairman Silvestre Reyes complained that his committee “has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to.” Only months before, in a well-publicized press conference, House Speaker Nancy Pelosi accused the CIA of lying to Congress. “They didn’t tell us everything,” Pelosi complained. The Speaker’s complaints followed CIA’s release of a list (PDF) that purported to show how it had briefed Congress over the years on the interrogations program. The list, in Marcy Wheeler’s words, was illustrative of CIA “playing around with its obligation to inform the intelligence committees.” Her deconstruction of the list is juicy reading.

Sometimes, as Wheeler also recently reported, the efforts to sabotage Congressional oversight came from within, as in early 2003 when then-new Senate Intelligence Committee chair Pat Roberts scotched all plans to send a committee staffer to review CIA interrogation sites on behalf of the committee.

What isn’t often mentioned was how the CIA was given the green light to lie and obfuscate by their superiors in the Executive Branch. It’s well known that former President Bush used an unprecedented amount of signing statements during his administration, nullifying dozens, if not hundred of provisions in the bills he signed. A Pulitzer Prize winning account of this was written up by Charlie Savage in the Boston Globe in 2006. One should read the entire article (as well as others on the subject by Dahlia Lithwick and John Dean), but I’m only going to mainly concentrate on the signing statements that targeted Congressional oversight demands.

Bush Tells GOP-ruled Congress Back Off

Not long after 9/11, Congress sent President Bush the “Intelligence Authorization Act for Fiscal Year 2002” (PDF) for signing into law. In a signing statement dated December 23, 2001, Bush brushed aside the first of many attempts to get Congressional notification and oversight over Bush military and intelligence policies. As is well-known, he used justifications of executive power to dismiss what he didn’t like.

Section 305 of the Act amends section 502 of the National Security Act of 1947, which relates to executive branch reports to the Congress under the intelligence oversight provisions of the National Security Act. Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure.

Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President’s constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties. [Emphasis added]

This was not a one-time protest by the President, nor the end of Congressional attempts, under both Democrats and Republicans, to obtain factual material from the military and intelligence agencies whereby to conduct oversight. There were many of these, at least sixteen by my count, over the eight years of the Bush administration. This does not count how many times signing statements were used to nullify other policies and laws passed by Congress. For a list of pertinent signing statements, with some examples of the provisions Bush wished to cancel, see here. For a full reference to all the signing statements see the Georgetown Law Library’s Presidential Signing Statements Research Guide and the listing of all signing statements by George W. Bush, as well as Barack Obama, to date, here.

More Denials for Congressional Notification

As the U.S. veered to “the dark side,” and began expanding its gulag of secret prisons, rendition kidnappings to torture, and the construction of new CIA torture prisons, even the GOP-led Congress asked for fig leafs of oversight. Many of these programs were undertaken as Special Access Programs (SAPs), which are highly compartmentalized and secretive. When Congress passed a law in January 2002 that all funding to initiate special access programs be prohibited “until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program,” Bush balked.

Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces.

The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the President.

In other words, the President could establish his super-secret intelligence and torture programs anytime he wanted, “especially” though not only “in wartime”, and there was nothing Congress could do about it. Though what Congress did do was try again, and again, and again, like a modern version of Oliver Twist asking the master for more gruel.

Year after year Congress passed laws as part of different defense appropriations bills and intelligence authorization acts, calling for notification, limiting of defense funds, attachment of requirements to spending money, etc., and year after year, Bush effectively nullified those laws by executive fiat. It’s no wonder CIA saw no reason they had to give briefings to Congress, as they answered only to a President who ruled, not by comity, but by “executive power and authority as Commander in Chief of the Armed Forces.” In essence, during the Bush years, there was a military dictatorship.

In 2004, Congress passed the “Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005” (HTML link). In it, they tried to limit the U.S. intervention into Colombia to a maximum of 800 military personnel and 600 contractors. Moreover, no military personnel were to engage in combat operations. A Bush signing statement declared that that law would only be construed “in a manner consistent with the President’s constitutional authority as Commander in Chief and to supervise the unitary executive branch.”

While policies were shredded by executive fiat, Congressional oversight was almost entirely eviscerated, particularly on intelligence matters. In his December 17, 2004 signing statement for the “Intelligence Reform and Terrorism Prevention Act of 2004” (P.L. 108-458), Bush’s cancellation of Congressional powers of oversight was in full throttle.

The executive branch shall construe provisions in the Act that mandate submission of information to the Congress, entities within or outside the executive branch, or the public, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties. [Emphasis added]

Bush found — or rather David Addington, who is widely believed to have drafted many of these signing statements — fifteen different laws that called for such mandated submissions to Congress referenced in this single bill, and identified them all as subject only to his will and decision regarding compliance. No wonder he fashioned himself, “The Great Decider.”

DoJ and DTA: Two Notable Instances of Presidential Nullification

It wasn’t always reporting about defense or intelligence matters that was removed from Congressional scrutiny. In late 2002, Congress passed the “21st Century Department of Justice Appropriations Authorization Act” (P.L. 107-273). This new law included provisions to provide “substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution.” Bush called it an imposition upon the Executive and that he would, “in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch… withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties” (emphasis added).

The biggest flap over the signing statements came on December 30, 2005, when the president issued his statement H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006” (P.L. 109-148), a law which contained within it the provisions of the much-fought-over Detainee Treatment Act (DTA). The DTA was supposed to prohibit all inhumane treatment of prisoners, including those at Guantanamo, and limit techniques used in interrogations to those allowed in the Army Field Manual (AFM). (Note: The version of the Army Field Manual then in use did not include the special techniques allocated to in the version implemented nine months later in the revised AFM, primarily in its Appendix M.)

The legislation that implemented the DTA had some serious problems, including stark limitations on prisoner habeas rights and the allowance of use of evidence by torture. (See this analysis by Tom Malinowski at Human Rights Watch.) But even what limitations upon prisoner treatment and interrogation rules as it did have, Bush nullified with his typical legalistic appeal to the unitary executive.

The executive branch shall construe Title X in Division A of the Act [Detainee Treatment Act of 2005], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

One could go on and on documenting and listing the ways in which the Bush administration attempted to block Congressional intent, and hence the nation’s intent, when it came to the passage of laws and the conduct of oversight over Executive Branch affairs. Over and over again, Congress came back with attempts in the next set of appropriations or other laws to try and establish some provisions where oversight and Congressional mandate had some effect, and did this even under GOP leadership. Where they failed was in their inability to communicate what was happening to the American people. Not until 2006 was there a press conference called to complain about Executive Branch obfuscation and lies to Congress, and that came only have CIA tweaked Nancy Pelosi’s nose.

President Barack Obama has kept his word, when he indicated he would not rule by presidential signing statement, or de facto line-item veto. But there are a lot of promises he has not kept — on the FISA law, on transparency in government, on providing real reform of government, or even on cutting back entirely on torture (see this excellent article, or this New York Times op-ed). Most distressingly, he has indicated he will not pursue those who implemented torture as a policy within the Bush administration.

We have seen in the most recent historical period that Constitutional guarantees are paper-thin in 21st century America. Recent court rulings that have blatantly called out the use of torture by the CIA in its prisons and rendition sites, have gone practically ignored by the mainstream press. (See this latest excellent article by Andy Worthington on Judge Kennedy’s amazing opinion in the Uthman habeas case.) Presidential/Executive power, even under Obama, is one of the most greatest dangers to Americans today. This is most notable in the Obama administration’s contention that it can assassinate American citizens without due process.

The Bush signing statements are not, unfortunately, an aberrant chapter in modern American history. They were the excrescence of a process of executive expansion of power that continues even today.

Jeff Kaye

Jeff Kaye

Jeffrey Kaye is a retired psychologist who has worked professionally with torture victims and asylum applicants. Active in the anti-torture movement since 2006, he has his own blog, Invictus, previously wrote regularly for Firedoglake’s The Dissenter, as well as at The Guardian, Truthout, Alternet, and The Public Record. He is the author of Cover-Up at Guantanamo, a new book examining declassified files on treatment of prisoners at the Guantanamo detention camp.