Congressional Oversight of the Intelligence Community Is Broken

Some cover-ups are more equal than other cover-ups.

That’s the lesson that might be gleaned from a series of dizzying events putting the intelligence community and its congressional overseers at odds this week. It began with a Republican report on Russia’s interference in the 2016 election, which led to an outcry from critics over how partisan lawmakers were participating in a cover-up. It was followed by President Donald Trump’s nomination of Gina Haspel, who oversaw the torture of terrorism suspects under the Bush administration, to lead the CIA—and suddenly those critics were singing a different tune, seemingly content to allow a different cover-up to go unaddressed.

These two incidents, coming back to back, aren’t just evidence of hypocrisy. They are symptoms of the same, longstanding problem, which is that congressional oversight of the intelligence community is thoroughly broken.

On Monday, Republicans on the House Intelligence Committee released what it claimed to be a summary of its investigation into Russia’s role in the election. Among its conclusions, it disagreed with the intelligence community’s 2017 assessment that Vladimir Putin and the Russian government “developed a clear preference” for candidate Trump.

The summary, presumably drafted by aides of Trump transition official and committee Chairman Devin Nunes, disputed that assessment even in the face of the recent indictment of Russian internet trolls, which laid out how they set up anti-Hillary and pro-Trump campaign rallies. The indictment also showed how their social media activity pursued the same anti-Hillary, pro-Trump line, launching hashtags like #TrumpTrain and #Hillary4Prison, the Twitter account March for Trump, and the Facebook accounts Clinton FRAUDation and Trumpsters United.

Even some Republicans on the committee have delicately distanced themselves from the report. Trey Gowdy of South Carolina affirmed that Russia was “motivated in whole or in part by a desire to harm [Hillary Clinton’s] candidacy or undermine her Presidency had she prevailed.” Florida’s Tom Rooney, like Gowdy retiring after this term, said, “I absolutely think there was evidence they were trying to help Trump at some points.”

The report also garnered criticism from former spooks and top officials. John McLaughlin, CIA’s deputy director during the first years of the George W. Bush administration, complained on Twitter about the partisan nature of the stunt.

So did Obama-era Attorney General Eric Holder:

Only, McLaughlin has seen such partisanship in congressional oversight before—when he benefited from it. In 2003, after Republicans regained the majority in the Senate, Senate Intelligence Committee Chair Pat Roberts agreed with the CIA to shut down initial efforts by his Democratic predecessor, Bob Graham, to oversee Bush’s torture program. The CIA memorandum of his briefing recorded, “[T]he Senator interjected that he saw no reason for the Committee to pursue such a request and could think of ‘ten reasons right off why it is a terrible idea’ for the Committee to do any such thing,” like observing interrogation as practiced in person. In the same period, Jane Harmon, then the ranking member of House Intelligence Committee, asked the CIA general counsel, “Have enhanced techniques been authorized and approved by the president?” In response, he gave her an evasive answer.

If partisanship drives a stake through effective oversight of the intelligence community, then the efforts to bypass Democratic concerns about torture killed that vampire long ago.

Furthermore, for much of the period that Holder is describing, between 2011 and 2015, Republicans were obsessed with turning the tragedy of the Benghazi assault into a circus. The House Intelligence Committee did its own report on the incident, replete with “additional views” from Rogers offering a sharper attack on the Obama administration, especially Susan Rice. Democrats were left offering “minority views” from Ruppersberger reminding lawmakers that blame for the attack should lie with the attackers.

Like McLaughlin and Holder, John Sipher, a longtime CIA officer and one of the most forceful critics of Russia’s meddling in the election, insisted that the American people deserve more from Congress. He also blamed partisanship for the House Intelligence Committee’s absurd take on Russian interference:

But Sipher had to change his position when Trump announced that Haspel, a lifelong CIA clandestine officer who currently serves as the agency’s deputy director, would be taking over the CIA. Her nomination will be controversial for two roles she played in the CIA’s torture program. First, as chief of base in Thailand in 2002, she oversaw the torture, including waterboarding, of Abd al Rahim al-Nashiri. Second, she ordered the destruction of tapes showing that torture.

The response to her role in carrying out torture has been chilling, with multiple people, including Sipher, claiming Haspel was just following orders.

“She was doing her job as asked by the president, her director and approved by the Justice Department with Congressional oversight,” Sipher said. In fact, it’s not clear whether the torture, as Haspel oversaw it, was approved by the Justice Department and Congress. The department imposed limits on waterboarding and refused to approve mock burial; the record is unclear whether Nashiri’s waterboarding complied with its limits, or if the CIA broke the department’s rules when it stashed him in mock coffins. Moreover, the CIA did not fully brief Congress on Nashiri’s torture until after he had begun treatment and the worst part had been concluded.

And yet even Senator Dianne Feinstein, who, among members of Congress, knows more about the torture regime than anyone, did not categorically oppose Haspel’s nomination. “It’s no secret I’ve had concerns in the past with her connection to the CIA torture program,” said Feinstein, who oversaw the production of the Senate Intelligence Committee’s seminal report on CIA torture, which laid bare some of Haspel’s past actions. “[I] have spent time with her discussing [her role in torture].” But then Feinstein said Haspel’s successful tenure as deputy director may win her support. “To the best of my knowledge she has been a good deputy director and I look forward to the opportunity to speak with her again.”

A reposted column from Mike Morell, who like Haspel served as deputy director, made the same argument. “Some of the assignments that she took on have later come under political fire, but in each case she was following the lawful orders of the president.”  

None of this, however, addresses Haspel’s other role in torture: the cover-up. In 2005, at a time when both members of Congress and terrorism defendants were asking for evidentiary materials relating to torture, she drafted the cable ordering the destruction of videos of the treatment of Nashiri and still more incendiary ones depicting Abu Zubaydah’s torture. “The cable left nothing to chance,” her boss Jose Rodriguez described in his memoirs. “It even told them how to get rid of the tapes. They were to use an industrial-strength shredder to do the deed.”

While it’s possible that Pete Hoekstra, then the chair of House Intelligence Committee and currently Trump’s ambassador to the Netherlands, was briefed on and signed off on this action, Democrats had been advising the CIA not to destroy the tapes since 2003. “The fact of destruction would reflect badly on the Agency,” Harman wrote that year. And there were other legal obligations on CIA not to do so.

While CIA cover-ups of nasty operations is a fairly banal event, they go to the heart of democratic accountability for such operations, particularly if the cover-up comes in defiance of congressional input. Moreover, the Republican-approved cover-up of torture has the same goal as the Republican cover-up of the Trump campaign’s dalliance with the Kremlin: to protect the president from necessary accountability.

Even in this matter, Haspel’s defenders say she was just following orders. Sipher, for example, emphasized, “She merely released the correspondence” in sending the cable. However, The New York Times cites former officers describing Haspel as “a strong advocate for getting rid of the tapes.”  

Haspel is a symbol of cover-up in one more way. She was made deputy director last year without first declassifying the references to her in the Senate Intelligence Committee’s torture report, based on the claim that her identity still needed protection. Democratic Senators Ron Wyden and Martin Heinrich prepared a classified summary of her actions, but the government refused to declassify it, even while other former officers made public comments about Haspel’s background.

Amid threats that Trump will appoint someone worse to head the CIA, like Senator Tom Cotton, Haspel is likely to be confirmed by the Senate. The lesson, one that has been consistent across issues ranging from torture and Russian interference in the election, is that congressional oversight of the intelligence community has become a farce.