Federal News Radio seems to be the only journalistic enterprise in the nation to have picked up on this exchange, in which the nominees for the Department of Homeland Security Office of Intelligence and Analysis (Caryn A. Wagner) and the Assistant Secretary of State for Intelligence and Research (Philip Goldberg) attempt to reserve for the Obama Administration a right to refuse document requests by the security-cleared Senate Intelligence Committee. The basis of that claim: “executive privilege.” A transcription of the exchange, which occurred during Senate Intelligence Committee confirmation hearings for the pair on December 1, 2009:
Senator Dianne Feinstein: Do you agree to provide documents and any other material requested by the Committee in order for it to carry out its oversight and legislative responsibilities?
Caryn A. Wagner: To the best of my ability, yes.
Philip Goldberg: The same, to the best of my ability, yes.
Feinstein: What does that mean?
Goldberg: If it ever became, as far as the INR Bureau goes and as far as I am concerned I will share, uh, what we can. There are some issues that might come up from time to time about, uh, documents, um, executive privilege and, and the rest, that might be beyond my control.
Feinstein: Well, let me just say that this is the first time anybody has qualified their answer, and that’s going to have to be looked into more deeply, because this committee expects to get documents it requests. We are the oversight committee. And to have intelligence agencies without the ability to conduct oversight is not acceptable to us.
Senator Kit Bond: To be fair, I might add that the president has a right to declare things a higher security level, and uh, uh, we would, before we would accept that we would need to know from the White House that this was something over which they’re exercising their national security…
Feinstein: Well, that’s, Mr. Vice Chairman…
Bond: We would carry our argument with 1600 [Pennsylvania Avenue, the White House].
Feinstein: That’s right, and privilege can’t be a driftnet to pick up everything that people don’t want to have oversight about. And that’s where we become the guardian angels, so to speak. Just so you understand that.
Goldberg: Madam Chairman, I didn’t mean at all to say that. We, from our point of view, and from my point of view, would share any information requested by the committee. That qualification, it isn’t really a qualification from us. It’s something would really be something that would be beyond my control.
This whole “executive privilege” argument about keeping surveillance programs secret, even from the security-cleared Senate Intelligence Committee… I remember encountering it before. When was that, exactly? Help me here. It was…
… oh, right: during the Bush years. Didn’t the campaign posters say “Change” on them?
By the way, if you pay close attention, you’ll notice that neither Caryn Wagner (who, if you watch video of the hearing, seems to spend most of the hearing trying to remain as quiet as possible) nor Philip Goldberg actually promises to supply oversight documents to the Senate Intelligence Committee. Rather, they declare and then reiterate that they, personally, would just love to supply the Intelligence Committee with the documents needed for oversight of government surveillance programs, but that it’s really up to the Obama White House, which may claim executive privilege.
The issue of oversight is thrown into stark relief today with revelations of extensive covert domestic spying by the government on peaceful political and religious groups and deliberate lying to Congress regarding intelligence surrounding terrorism and war. The existence of these problems was not uncovered by the Senate Intelligence Committee. Instead, the scandals were revealed by a private non-profit, the Electronic Frontier Foundation.
Why did the Senate Intelligence Committee fail to uncover this malfeasance? It could be because the committee has been stonewalled by Bush and Obama “executive privilege” claims. It could be because the Senate Intelligence Committee has been lied to. But it might also be that the EFF simply cares more about civil liberties malfeasance than the Senate Intelligence Committee does. It might be that the members of the Senate Intelligence Committee are simply lazy.
Here’s a glimpse of the Senate Intelligence Committee gaveling to order for the confirmation hearing of Goldman and Wagner:
Your eyes do not deceive you: the only Senator in attendance at the beginning of this hearing was Dianne Feinstein. Senator Kit Bond of Missouri showed up five minutes later. With about 20 minutes to go to the end of the hearing, Senators Sheldon Whitehouse, Russell Feingold and Ron Wyden made appearances.
The following members of the Senate Intelligence Committee were wholly absent from the confirmation hearing that day:
It was a very light day on the floor of the Senate (if you don’t count the passage of a bill declaring December 12 to be “Wreaths Across America Day”), with no other Senate committee meetings held at that time, in case you were wondering. These 10 Senators just didn’t feel it important to show up and carry out the actual oversight with which they’re tasked. Keep that in mind the next time there’s a shocking revelation about the abuse of intelligence capabilities in the United States and one of these Senators steps up to a microphone declaring the need for hearings to determine how such a slip-up could have possibly occurred.
Postscript with Update, 11:54 AM: There was an additional possibility that I failed to consider regarding the Senate Intelligence Committee: that they knew about the malfeasance of the Department of Homeland Security Office of Intelligence and Analysis but failed to do anything to pressure the “I&A” office, as it’s called, to reform. Remarks by Senator Ron Wyden in this hearing show that this turns out to be the case. (Look here for a post on Senator Wyden’s remarks and Caryn Wagner’s responses to them.)
If the Senate Intelligence Committee knew about the extensive domestic spying malfeasance of the Homeland Security Office of Intelligence and Analysis, this makes the overwhelming absenteeism of the Intelligence Committee at the confirmation hearing of the Office’s new head even more inappropriate.