John Hockenberry, The Takeaway: This dispute between the administration and some lawyers on the release, under the Freedom of Information act, of photos, which showed alleged abuse of the detainees from Iraq and Afghanistan has caused a debate. That there was abuse in Iraq and Afghanistan is not a dispute, but the issue of transparency in the Obama administration is under debate now. Obama doesn’t want to release the photos. Well, here to talk about what this move represents on a variety of levels, from the involvement of torture and the treatment of detainees that has emerged since President Obama took office, it has been an issue really since the inauguration, is Vicki Divoll, a government teacher at the US Naval Academy. She’s also the former General Council of the Senate Intelligence Committee from 2001 and 2003, and she’s a former Assistant General Council for the Central Intelligence Agency as well. Vicki Divoll, thanks for joining us
Vicki Divoll, Government teacher at US Naval Academy: Thank you, John.
John Hockenberry: Let’s begin with this issue of transparency. Is there a legal standard for transparency or is this making political nice here?
Vicki Divoll: Well I think there are a variety of legal standards that speak to the issue of transparency. There’s no one standard. The Freedom of Information Act, for example, provides a legal basis for the general public and the media to ask our government questions and provide standards for when they must answer. There are other transparency type laws, for example the one that I was discussing in my op-ed, having to do with when, and how much, and to whom in Congress, the President, and it is the President’s responsibility, has to give Congress about intelligence activities.
John Hockenberry: Well, let’s talk about your op-ed here, because I think you raised an issue that occurred to me once it became clear that Nancy Pelosi had gotten briefed by the CIA about so-called enhanced interrogation techniques very early in the game, when she was part of the House Intelligence Committee. And the circumstances of that briefing are the CIA comes in, claims they’re going to talk about some very sensitive matters, classifies the material as part of the conditions of the briefing, and so Congress is officially notified but they’re also under orders not to tell anyone else in Congress. Is this a restraint of the separation of powers, in the sense that, in theory, Congress can stop the administration from doing anything, but if it can’t tell other lawmakers about it there’s really no way legislatively that Congress can move forward?
Vicki Divoll: Well exactly. Congress is an entity. It’s made up of individuals but they act as a unit. And if you setup a structure which is setup in the law, but I think the law, although it can be improved, does anticipate that it will be a meaningful notification, but if you setup a system or use an approach that forces just a handful of members to be the custodian of this information on behalf of the whole Congress, you have essentially limited the ability of the Congress to act.
John Hockenberry: Now there’s no evidence that people like Jay Rockefeller who apparently was briefed, Nancy Pelosi, she of course there’s some debate over what she was told or what she knew, there’s no evidence that any of these people save perhaps one, raised an objection. But let’s talk in theory about something that Congress might have been briefed on where the members of the committee say “This is outrageous! Forget it. We want you to stop this tomorrow.” There’s almost nothing Congress can do to actually put any wheels in motion, right?
Vicki Divoll: Well, the law requires them to be “notified.” And we can debate whether they were or are normally notified in an effective way, or even a lawful way. And you’re right, it’s a notification. It’s not a mother-may-I. It’s not a ‘we’re going to do this, is this ok?’ That’s not how separation of powers works.
John Hockenberry: But isn’t that implied by the constitution?
Vicki Divoll: Well, certainly. And it would go into play, they just can’t object at that moment. They would have the power of persuasion to say we are going to take action, we are going to cut off you’re funding, we are going to pass a law that says don’t do this and they can do all of those things or try to. But at the moment of the notification, you’re right, there’s nothing they can do, the executive branch can moved forward. But if the notification has been given broadly enough and effectively enough, and one of the issues here is that normally in a closed briefing, and in a very small briefing, such as these were as far as we know, the members don’t take notes. They’re discouraged from taking any kind of notes. There probably is absolutely no record in the legislation branch about what these briefings involved and the only record we will have is the one kept by the CIA briefers themselves. Not that I’m saying they wouldn’t keep accurate records, but it’s still unfortunate that when history looks back on this we will only know what the executive branch says happened, we will never know what the legislators say happened.
John Hockenberry: Well where do you think this is headed? Is new legislation being drafted would create more of a process like you describe in your op-ed or is this dispute over what Pelosi knew and when likely to result in an actual Supreme Court test of the restraint potential of classifying information in briefings?
Vicki Divoll: That’s an interesting question. It’s very hard to get cases up to the Supreme Court. You need to meet certain standards of case and controversy to move forward with that, so I would doubt that that would happen. I think that, more likely, the attention that this situation is getting, and the fact that the speaker and others have been put in a very difficult position of people saying what they knew, and they don’t have the same recollection of what they were told, will result in a look again at these notification procedures. Not just what the law says, but how the law has been followed or not followed, and I don’t believe it’s been followed.
John Hockenberry: Well the irony here is that, while the initiatives in Congress were initially argued to hold potential Bush officials accountable for some of these behaviors, it may end up and that you write eloquently in your op-ed, that it’s Congress that’s hold accountable: what they knew, what they did and what maybe they should be doing in the future. That will be more of a central issue.
Vicki Divoll: Exactly. That is, I suppose, ironic. I think both angles of it will be looked at very closely. I know Senator Feinstein said yesterday, the now Chairman of the Senate Intelligence Committee, that she’s going to look at all aspects of this and I trust that she will. She’s an excellent senator and will look deeply into all of this and then at the end of the day they’ll decide if the laws are good enough and they just weren’t followed or whether they need to be at least clarified so they will be followed in the future.
John Hockenberry: Well you can find the op-ed from my guest, Vicki Divoll, who’s a government teacher at the US Naval Academy, on our website. It’s also on nytimes.com. She’s a former General Council of the Senate Intelligence Committee. She’s also a former Assistant General Council for the Central Intelligence Agency.