[From the diaries by susanhu. Most important issue of our nation’s history, imho.]
The “unitary executive” theory, that the President has nearly absolute authority as Commander-in-Chief in “wartime” goes much, much further than has previously been reported.
Movies and books refer to “black operations” or “black programs”, referring to top secret military projects. The Pentagon however refers to them as Special Access Programs (SAP) to avoid any negative connotation or association with the word “black”.
Obviously the military sometimes has legitimate reasons to conduct secret operations, secret from the public that is.
There are 3 kinds of SAP’s:
- Acknowledged SAP’s – Those which can be spoken about in public, often declassified. This includes the SAP project to build the F-117 stealth fighter.
- Unacknowledged SAP’s – The existence, name and details of these programs is classified to the public. These are however revealed to 2 House subcommittees and 2 Senate subcommittees (see below)
- Waived SAP’s – Actually a subset of “unacknowledged” SAP’s. Only a handful of members of Congress are informed about these projects, known as the “Big 8”. They are the chairperson and ranking member of the 2 House Subcommittees and 2 Senate subcommittees
While “unacknowledged” and “waived” SAP’s are not disclosed to the public, the law requires that Congress be notified of and approve all SAP’s.
U.S. Code Title 10, Subtitle A, Part I, Chapter 2, § 119 specifically deals with this:
(f) A special access program may not be initiated until–
(1) the defense committees are notified of the program; and
(2) a period of 30 days elapses after such notification is received.
(g) In this section, the term “defense committees” means–
(1) the Committee on Armed Services and the Committee on Appropriations, and the Defense Subcommittee of the Committee on Appropriations, of the Senate; and
(2) the Committee on Armed Services and the Committee on Appropriations, and the Subcommittee on Defense of the Committee on Appropriations, of the House of Representatives.
So far, so good. The Pentagon established SAP’s and a select group of Congress reviews this top-secret material. If Congress approves, the SAP can begin after 30 days.
Army Regulations (380-381) list in great detail exactly how SAP’s can be conceived, submitted for approval and put into action. This is consistent with the law cited above.
Again, the public is not informed about the details or budget for these secret projects. But elected members of Congress have oversight, right?
Well the law says they do. But President Bush has disagreed since 2002.
Speaking of that year’s Defense budget:
Section 8007 of the Act prohibits use of funds to initiate a special access program until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program.
The U.S. Supreme Court has stated that the President’s authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority.
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 plain English, this means that the President will tell Congress about black op programs whenever he feels like it. Screw the law!
Was the NSA wiretapping program one of those SAP’s that the President used to bypass Congress? It looks like it might have been a “waived SAP”. Senator Rockefeller said he had raised concerns on the NSA wiretapping project when he was briefed in 2003, which was hotly denied by Pat Roberts.
The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.
Back in 2004, Seymour Hersh was on the trail of another SAP:
The Abu Ghraib story began, in a sense, just weeks after the September 11, 2001, attacks, with the American bombing of Afghanistan. Almost from the start, the Administration’s search for Al Qaeda members in the war zone, and its worldwide search for terrorists, came up against major command-and-control problems. For example, combat forces that had Al Qaeda targets in sight had to obtain legal clearance before firing on them. On October 7th, the night the bombing began, an unmanned Predator aircraft tracked an automobile convoy that, American intelligence believed, contained Mullah Muhammad Omar, the Taliban leader. A lawyer on duty at the United States Central Command headquarters, in Tampa, Florida, refused to authorize a strike. By the time an attack was approved, the target was out of reach. Rumsfeld was apoplectic over what he saw as a self-defeating hesitation to attack that was due to political correctness.
Of course it wasn’t “political correctness”, it was the military following its own rules. If the chain of command rules were too slow, then they could be changed. But Rumsfeld (and Stephen Cambone) decided to bypass all that:
Rumsfeld reacted in his usual direct fashion: he authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate “high value” targets in the Bush Administration’s war on terror. A special-access program, or sap–subject to the Defense Department’s most stringent level of security–was set up, with an office in a secure area of the Pentagon. The program would recruit operatives and acquire the necessary equipment, including aircraft, and would keep its activities under wraps.
They created code words, and recruited, after careful screening, highly trained commandos and operatives from America’s élite forces–Navy seals, the Army’s Delta Force, and the C.I.A.’s paramilitary experts. They also asked some basic questions: “Do the people working the problem have to use aliases? Yes. Do we need dead drops for the mail? Yes. No traceability and no budget. And some special-access programs are never fully briefed to Congress.”
They carried out instant interrogations–using force if necessary–at secret C.I.A. detention centers scattered around the world. The intelligence would be relayed to the sap command center in the Pentagon in real time, and sifted for those pieces of information critical to the “white,” or overt, world.
Sound familiar? Remember that was written in 2004. Secret detention centers scattered around the world? I’ve already written a 20-part series on those secret CIA jails and there’s a lot more information to come out.
Back to Hersh:
The solution, endorsed by Rumsfeld and carried out by Stephen Cambone, was to get tough with those Iraqis in the Army prison system who were suspected of being insurgents.
Rumsfeld and Cambone went a step further, however: they expanded the scope of the SAP, bringing its unconventional methods to Abu Ghraib. The commandos were to operate in Iraq as they had in Afghanistan. The male prisoners could be treated roughly, and exposed to sexual humiliation.
Cambone then made another crucial decision, the former intelligence official told me: not only would he bring the sap’s rules into the prisons; he would bring some of the Army military-intelligence officers working inside the Iraqi prisons under the sap’s auspices. “So here are fundamentally good soldiers–military-intelligence guys–being told that no rules apply,” the former official, who has extensive knowledge of the special-access programs, added. “And, as far as they’re concerned, this is a covert operation, and it’s to be kept within Defense Department channels.”
We already know that there are photos and videos of what occurred (still occuring?) at Abu Ghraib that have yet to be released to the public. We already know that Bush has annually stated that he will bypass notification of even senior Congress members on the existence of SAP’s, one of which was in operation at Abu Ghraib.
And at the end of 2005, we learned that he bypassed the FISA law and “authorized” secret NSA wiretapping and eavesdropping in Americans.
In that same “addendum” to his signing the Defense Bill on December 2005, Bush also added a paragraph denying prisoners’ rights to habeas corpus as well. A few blogs picked that story up but not the traditional media.
On January 2, 2006, the WaPo discussed Bush’s regular practice of adding those “interpretive signing statements” when he signed bills into law:
President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush’s statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.
The Bush administration “has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress,” Cooper wrote in the September issue. “This tour d’ force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.”
And guess who was one of the original backers of this idea? None other than Samuel A. Alito, Jr., currently on his way to being confirmed as a Supreme Court Justice.
In 1986, as an attorney in Reagan’s Office of Legal Counsel, he put forth the idea of adding “interpretations” when the President signed a bill into law, to “help curb some of the prevalent abuses of legislative history”.
Let’s connect the dots. Bush authorized NSA wiretaps, bypassing the law that Congress wrote. Bush authorized an SAP to conduct interrogations (torture) of inmates at Abu Ghraib. Was Congress bypassed as well? And now we know he has unilaterally declared he and Rumsfeld can bypass Congress whenever they want to when creating and managing black ops.
The law requires that the House Armed Services Committee be informed of and approve all SAP’s. The subcommittee on “Terrorism, Unconventional Threats and Capabilities” handles this.
It’s even on the official website. List of current members of this subcommittee:
Jim Saxton, CA (Chairman) (R)
Robin Hayes, NC (R)
W. Todd Akin, MO (R)
Joe Wilson, SC (R)
John Kline, MN (R)
Bill Shuster, PA (R)
Geoff Davis, KY (R)
Joel Hefley, CO (R)
Mac Thornberry, TX (R)
Jim Gibbons, NV (R)
Jeff Miller, FL (R)
Frank LoBiondo, NJ (R)
Marty Meehan, MA (Ranking member) (D)
Adam Smith, WA (D)
Mike McIntyre, NC (D)
Ellen Tauscher, CA (D)
Robert Andrews, NJ (D)
James R. Langevin, RI (D)
Rick Larsen, WA (D)
Jim Cooper, TN (D)
Jim Marshall, GA (D)
Cynthia McKinney, GA (D)
If these are your representatives, might be a good time to ask them if they know the President feels he can bypass the law and not get their approval for SAP’s.
The law also states that the Committee on Appropriations, Defense Subcommittee be informed and give approval to SAP’s.
C.W. Bill Young, FL – Chairman (R)
David L. Hobson, OH (R)
Henry Bonilla, TX (R)
Randy “Duke” Cunningham, CA (R)
Rodney Frelinghuysen, NJ (R)
Todd Tiahrt, KS (R)
Roger Wicker, MS (R)
Jack Kingston, GA (R)
Kay Granger, TX (R)
The same committees also need to be informed on the Senate side. Appropriations, Subcommittee on Defense. Members:
Senator Ted Stevens, AK (Chairman) (R)
Senator Thad Cochran, MS (R)
Senator Arlen Specter, PA (R)
Senator Pete Domenici, NM (R)
Senator Christopher Bond, MO (R)
Senator Mitch McConnell, KY (R)
Senator Richard Shelby, AL (R)
Senator Judd Gregg, NH (R)
Senator Kay Bailey Hutchison, TX (R)
Senator Conrad Burns, MT (R)
Senator Daniel Inouye, HI (Ranking Member) (D)
Senator Robert C. Byrd, WV (D)
Senator Patrick Leahy, VT (D)
Senator Tom Harkin, IA (D)
Senator Byron Dorgan, ND (D)
Senator Richard Durbin, IL (D)
Senator Harry Reid, NV (D)
Senator Dianne Feinstein, CA (D)
Senator Barbara Milkulski, MD (D)
The Senate Armed Services Committee must also give approval to SAP’s. Unfortunately I don’t know which subcommittee handles that.
WaPo blogger William Arkin has been on this case:
All of these rules have been in place since Watergate, when Congress began to routinely get security clearances and access to classified executive branch information. Over the years, the number of SAPs has grown, and though there was a flurry of effort during the Clinton administration to reduce the number of SAPs, since 9/11, there has been an explosion.
Ask any intelligence or national security professional with real clearances why SAPs exist and what is the purpose of covert or clandestine operations and they will tell you that they exist as much to cover illegal and unpalatable activity as to “protect” intelligence sources and methods.
Then last week Arkin discovered the Pentagon is evading even the SAP’s by calling them ACCMs:
ACCMs are on top of the existing system of “special access programs,” which I have previously written about. SAPs, as they are called, are often applied to protect classified information on acquisition programs where a technology such as “stealth” is shielded during research and development and even procurement. Since acquisition SAPs can often run in the hundreds of millions of dollars or even the billions, Congress has established laws and procedures for special oversight of them.
There are SAPs that apply to intelligence activities and operations, but the establishment of an SAP requires high-level Defense Department approval and extremely expensive security practices that cover everything from the contracts to internal communications. Everyone accessing SAP information must be “read into” a program formally, be specially cleared, and sign a non-disclosure agreement. Their very restricted nature to some degree limits their promiscuous application.
So enter ACCMs. According to the Navy directive
“When an Original Classification Authority (OCA) determines that other security measures … are insufficient for establishing “need-to-know” for classified information and where Special Access Program (SAP) controls are not warranted, Alternative or Compensatory Control Measures (ACCM) may be employed. The purpose of ACCM is to strictly enforce the “need-to-know” principle. Personnel requiring access to ACCM protected information shall receive specialized training regarding the procedures for access, control, transmission, storage, marking, etc.”
“… Each request for the establishment of ACCM shall consider the criticality, sensitivity, and value of the information; analysis of the threats both known and anticipated; vulnerability to exploitation; and countermeasures benefits versus cost when assessing the need to establish an ACCM.”
But there is no special clearance required, no non-disclosure agreement, no separate communication system needed to transmit ACCM information.
To cut through the bureaucratic gobbledy-gook, here’s how I interpret the invention and application of the ACCM: A formal special access program requires high-level approval and oppressive practices to maintain internally, but formal SAPs also must be briefed to Congress. (Even the NSA domestic surveillance program, called a “waived” SAP, was briefed to the Congressional leadership.)
So here is a program for compartmentalizing information where the security standards internally are the same as an SAP, but the compartment is easier to establish and the program doesn’t have to be reported to Congress!
Arkin reports that there have been hundreds of ACCMs since 9/11. These are “black ops” which not even the 8 Senators and Representatives in charge of overseeing (and funding) the nation’s intelligence budget are informed about.
It seems like we are falling down the rabbit hole towards an absolute ruler…
This is cross-posted from Flogging the Simian