Blair certainly thinks it should be him. In May, Blair issued a directive saying that the CIA station chief is will be dual-hatted as his representative, and in “rare circumstances” the DNI reserves the right to appoint someone from a different intelligence agency as necessary. Panetta took issue with it. The issue is current under review by the National Security Council. (Marc Ambinder reported recently that Vice President Biden may be the deciding factor.)

The Senate Select Committee on Intelligence has sided with Blair. In the unclassified summary of its 2010 intelligence authorization bill is this language unambiguously backing Blair’s directive, known as ICD-402:

The directive recognizes the value of turning to the CIA Chief of Station to be the DNI’s representative in foreign countries, but also recognizes that some locations may give rise to circumstances where that responsibility is best met by an official with expertise derived from another Intelligence Community element, which in fact is already current practice and is not disputed by anyone.

In any event, the DNI, exercising his authority under the law, has made the decision that that the directive is the right choice for the Intelligence Community.  The Committee supports the DNI in that choice and looks forward to the CIA’s prompt adherence to his decision.

This wouldn’t have the force of law if the bill passes, as it’s assumed it will. But it’s an unambiguous indication of congressional support for the DNI over the CIA. And it’s already not going over well in some corners of the community. A U.S. intelligence official who would only speak anonymously said that the Senate intelligence committee was actually fuzzy on the implications of what its language entails. For instance: what happens to the CIA chief of station if the DNI puts a different intelligence official over him or her?

“If there are stations chiefs and DNI reps in the same place overseas, who will the American ambassador turn to?” the official said. “Having two top dogs in overseas stations isn’t the way to do business. We need a clear chain of command, not an exported Beltway bureaucracy that causes confusion within our own government and with foreign partners. Liaison services need to know which number to dial.” (”Exported Beltway bureaucracy” won’t go over well at the DNI’s office…)

The official referenced the fact that question of station-chief-authority predates either Blair or Panetta’s appointments, even stretching back to the first DNI, John Negroponte, and noted that the Senate didn’t take a position on the necessity of switching the authority over to the DNI. “It’s almost as if [Senators] want to say they can do this rather than they need to do this,” the official. “What’s the outcome they’re trying to achieve? That’s not at all clear.” What’s crystal clear is that the Senate panel thinks that whatever the outcome, Dennis Blair should be in charge of it.

Update: That’ll teach me not to update my headline from my scratch copy. Apologies.

Rice took the question in stride. First, she said she was reluctant to criticize Obama. “I will not agree with everything they do, and I won’t agree with everything they say,” she said. “But the worst thing about being in government is that people outside government who don’t have to deal with the daily struggles you do, and aren’t trying to solve really difficult problems, are just sitting out there commenting and criticizing, particularly people who’ve just been in government. That’s really unfair. So for the time being, if I disagree, I will keep it to myself.”

I know, I know. The real victims here are the former Bush officials who have to endure an endless litany of bad-faith criticism from, like, citizens. Remember: they whipped the Savior up the hill that morning. Draw strength from the example, Ms. Rice. (Sorry, Doctor Rice.)

Then she got to the heart of the question. “Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After Sept. 11, [2001,] we wanted to protect the country,” she said. “But he was also very clear that we would do nothing, nothing that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.”

She added: “I hope you understand that it was a very difficult time. We were all so terrified of another attack on the country. Sept. 11 was the worst day of my life in government, watching 3,000 Americans die. . . . Even under those most difficult circumstances, the president was not prepared to do something illegal, and I hope people understand that we were trying to protect the country.”

And I was trying to drive safely home, officer, and never intended to plow my car into that schoolyard full of fourth-graders. We can debate whether I should have had those drinks before getting behind the wheel, but my lawyers informed me that there were interpretations of the law under which everything I did was legal, and in any event my trusted friend told me that even before my lawyers gave me that advice I should go warm up the car. This is a time to look forward and not backward. And I might add that you weren’t even at the bar when we were making these plans.

So recall that the CIA asked for the memo because in June 2007 President Bush issued an executive order, known as 13440, that sought to update the basis for the CIA’s interrogation program to accommodate the Supreme Court decision in Hamdan v. Rumsfeld and subsequent acts of Congress that specified, as the Senate intelligence committee put it, “particular violations of Common Article 3 [of the Geneva Conventions] subject to criminal prosecution under the War Crimes Act.” CIA wanted to be super-duper sure that it had full legal approval for, uh, things that might be war crimes unless they were sprinkled in the OLC’s magic legal pixie dust. So its lawyers went to OLC and got a memo produced. What did it say?

The July 2007 opinion includes extensive legal analysis of the war crimes added by the MCA [2006 Military Commissions Act], U.S. constitutional law, the treaty obligations of the United States, and the legal decisions of foreign and international tribunals.  The July 2007 opinion does not include analysis of the anti-torture statute but rather incorporates by reference the analysis of the May 2005 opinions that certain proposed techniques do not violate the anti-torture statute, either individually or combined.

In considering “traditional executive behavior and contemporary practices” under the substantive due process standard embodied in the Detainee Treatment Act, OLC considered similar sources to those considered in the May 2005 opinion on Article 16.  In addition, OLC examined the legislative history of the MCA, which the President had sought, in part, to ensure that the CIA program could go forward following Hamdan, consistent with Common Article 3 and the War Crimes Act.  OLC observed that, in considering the MCA, Congress was confronted with the question of whether the CIA should operate an interrogation program for high value detainees that employed techniques exceeding those used by the U.S. military but that remained lawful under the anti-torture statute and the War Crimes Act.  OLC concluded that while the passage of the MCA was not conclusive on the constitutional question as to whether the program “shocked the conscience,” the legislation did provide a “relevant measure of contemporary standards” concerning the CIA program and suggested that Congress had endorsed the view that the CIA’s interrogation program was consistent with contemporary practice.

To make a long story short, since the Military Commissions Act showed that Congress implicitly said there should be a CIA interrogation program — hey, its “conscience” wasn’t “shocked” –  it was perfectly acceptable for OLC to bless the contours of a CIA interrogation program that was forged before a host of Supreme Court decisions and acts of Congress introduced additional-but-not-so-specific protections of basic detainee rights. Unless I’m misunderstanding something, the Senate narrative essentially says that the OLC considers nothing in the legislative and judicial record in the two years since it issued its last opinions on the CIA program to have warranted any material changes to the legal basis for it.

And, remember, OLC has a point: the 2006 Military Commissions Act, like the 2005 Detainee Treatment Act before it, carved out exemptions for the CIA. Here’s CIA Director Michael Hayden’s statement the day Bush signed the 2006 act:

It gives CIA the legal clarity and legislative support necessary to continue a program that has been one of our country’s most effective tools in the fight against terrorism. The Act ensures that we can detain and interrogate key terrorist figures in the future, if and when the need arises. We can be confident that our program remains – as it always has been – fully compliant with U.S. law, the Constitution, and our international treaty obligations.

Thanks, John “this legislation ensures that we respect our obligations under Geneva” McCain!

In July 2007, the President issued Executive Order 13440, which interpreted the additional obligations of the United States imposed by Common Article 3 of the Geneva Conventions.  In conjunction with release of that Executive Order, OLC issued a legal opinion analyzing the legality of the interrogation techniques currently authorized for use in the CIA program under Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and the War Crimes Act.

The Washington Independent broke the story of the existence of that memo yesterday. This is the first clear, declarative public acknowledgement by any government authority that the 2007 OLC memo exists. Here’s an interesting omission that the Senate intelligence panel found within it:

Because waterboarding was not among the authorized list of techniques, the 2007 OLC opinion did not address the legality of waterboarding.  OLC therefore has not considered the legality of waterboarding under either of the two provisions that have been applied to the CIA’s treatment of detainees since the passage of the Detainee Treatment Act in December of 2005: Common Article 3 of the Geneva Conventions and the War Crimes Act, as amended by the MCA.

The panel ends its narrative by reiterating that the Obama administration has said “the United States Government may not rely on interpretations of the law governing interrogations issued by the Department of Justice between September 11, 2001, and January 20, 2009.”

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In County of Sacramento v. Lewis, the Supreme Court said that what “shocks the conscience” and therefore violates the right to substantive due process is conduct that lies beyond the “decencies of civilized conduct”; is “so ‘brutal’ and ‘offensive’ that it does not comport with traditional ideas of fair play and decency”; or “interferes with rights ‘implicit in the concept of ordered liberty’ ”.

It’s hard to imagine how slamming a prisoner’s head repeatedly against a wall, drowning him on a waterboard, depriving him of sleep (and adequate food) for more than five days straight or cramming him into a “confinement box” with insects he believed were deadly could possibly comport with anybody’s notion of “civilized conduct,” “fair play and decency” or “ordered liberty.”

So how did former OLC head Steven Bradbury and his team of lawyers who wrote the memos reach that conclusion?

They assumed that the government interest at stake – preventing another terrorist attack – justified the conduct, even if, on its face, that conduct looked clearly uncivilized, indecent, and, well, conscience-shocking. And, they assumed that torture and abusive interrogation tactics would be effective at preventing another terror attack.

In fact, according to the May 30, 2005 memo, the lawyers were told just that by John Rizzo, senior deputy General Counsel for the CIA, to whom the memo was addressed:

Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States.

But where did that belief come from, and was it reasonable?

Expert studies have shown repeatedly that there is no evidence to support the claim that torture and other abuse of detainees will actually lead interrogators to obtain reliable and valuable information. In fact, as Human Rights First has pointed out, the U.S. Army’s own field manual on interrogation, published in September 2006, states that torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear.” As veteran FBI interrogator Joe Navarro has said repeatedly: “the only thing torture guarantees you is pain.”

The Bush administration has never proven anything to the contrary. Just two weeks ago, former Bush Administration officials who monitored the interrogation of high-level terror suspect Abu Zubaydah told reporters for The Washington Post that “not a single significant plot was foiled” as a result.

The May 30 Bradbury memo even acknowledges the tenuousness of its own assumption. In footnote 28, for example, it says:

This is not to say that the interrogation program has worked perfectly. According to the IG report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information….On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques.

In short, the OLC lawyers reached their legal conclusions that these torture techniques did not violate the law by making assumptions that appears to have been wholly unsubstantiated – that the techniques would be effective.

Because the assumption is invalid, the legal conclusion is unsupported. And it provides strong evidence that the legal memos were not written “in good faith”, as the law requires, and the senior officials who relied upon them likely knew that. If that’s the case, then the memos don’t provide the absolute defense – or “golden shield” – that Bush officials have claimed.

Clearly, further investigation is warranted.

Just the other day, when I was writing about the case of Jewel v. NSA (and responding to the Columbia Journalism Review’s criticism that no one was covering this important case about warrantless wiretapping), I remarked that while everyone’s been up in arms about the Obama administration’s claiming the case should be dismissed because it would reveal “state secrets” — the same argument the Justice Department has made repeatedly in previous cases alleging illegal wiretapping and abusive interrogation programs — no one seemed to notice that the Jewel case charges that the wiretapping program is still going on.

Here’s a quote from the government’s brief asking the federal court to dismiss the case:

Plaintiffs in this action allege that the Government, through the National Security Agency (“NSA”), is undertaking an “illegal and unconstitutional dragnet communications surveillance in concert with major telecommunications companies,” and that NSA has indiscriminately intercepted the content of communications, as well as the communications records, of millions of ordinary Americans.

Interestingly, nowhere in its brief does the government deny that.  It just argues vehemently that the court should dismiss the case.

So should we really be all that surprised that, as James Risen and Eric Lichtblau report in The New York Times today, the charges may turn out to be true?

As Spencer’s already mentioned, Sen. Dianne Feinstein (D-Calif) and the Senate Intelligence Committee today promised to investigate. They might want to call the Electronic Frontier Foundation and their clients in the Jewel case as witnesses.

That’s welcome news for all of us who’ve been eager to learn more about just what went on in the CIA and how it could have led to policies like “extraordinary rendition” — i.e., transfer to torture — and the now-notorious interrogation abuses at Abu Ghraib, Bagram and Guantanamo Bay.

So now that there’s been a thorough review of Pentagon policies by the Senate Armed Services Committee (though its final report was never released publicly), and now there will be a critical review of what happened in the intelligence agencies.  So where’s the Senate Judiciary Committee?

As I reported earlier today and yesterday, Sen. Patrick Leahy (D-Vt.) has been going around talking and holding hearings about the possibility of creating a broad bipartisan truth commission, one reminiscent of South Africa’s Truth and Reconciliation Commission, or here in the United States, the 9/11 Commission. But as Leahy is rapidly learning, he’s facing mighty opposition — not only among Republicans but even among Democrats, few of whom bothered to even show up to his hearing yesterday to lend their support.

So why not just pull his own committee together to conduct an investigation of what happened at the Justice Department: who wrote what memos, at whose request, and what did they say? (Although as I’ve written before, some Office of Legal Counsel memos have been released, but many critical documents concerning detainee treatment have not.)

While the Bush administration was apparently misusing the Justice Department to carry out unlawful policies, Leahy — who chairs the Judiciary Committee — didn’t do very much to investigate. Sure, some questions came up during various confirmation hearings and when the committee questioned Inspector General Glenn Fine about his reports of politicized hiring at the Justice Department or the role of the FBI. But why no comprehensive hearings hauling in the former attorneys general and their staff, and OLC lawyers like John Yoo, Jay Bybee and Stephen Bradbury, to reconstruct how the torture and other abuse of detainees came to be legally-authorized U.S. policy?

Leahy presumably would have the power to obtain all those OLC memos still being withheld, and to get some concrete answers.  Combine the outcome of that process with what Sen. Carl Levin (D-Mich.) did with the Armed Services Committee and Sen. Dianne Feinstein (D-Calif) is now pursuing with the intelligence committee, and we could have some real answers — even if the far-reaching “truth commission” that Leahy proposed never wins enough support to get off the ground.

As it happens, a Senate Democratic aide hoped Panetta’s nomination hearings could proceed next week, and the White House shares that goal.

“I was not informed about the selection of Leon Panetta to be the CIA Director.  I know nothing about this, other than what I’ve read,” said Senator Feinstein, who will chair the Senate Select Committee on Intelligence in the 111^th Congress.

“My position has consistently been that I believe the Agency is best-served by having an intelligence professional in charge at this time.”

Not an auspicious sign for Panetta’s confirmation hearings.