In a previous post, I discussed the Senate Intelligence Committee report on the attack against U.S. facilities and personnel in Benghazi, Libya.  That post contemplated bias by congressional committees in favor of their oversight subject agencies.  On Monday, Ryan addressed Seymour Hersh’s latest article advancing a theory that Turkey was responsible for a false flag operation in Syria in which the rebels were the real perpetrators of the sarin gas attacks in Ghouta.  Others have been withering in their criticism of the theory and sourcing.

Ryan alerted me to the following additional allegation by Hersh that related to the Senate Intelligence Committee’s report:

A highly classified annex to the report, not made public, described a secret agreement reached in early 2012 between the Obama and Erdoğan administrations. It pertained to the rat line. By the terms of the agreement, funding came from Turkey, as well as Saudi Arabia and Qatar; the CIA, with the support of MI6, was responsible for getting arms from Gaddafi’s arsenals into Syria. A number of front companies were set up in Libya, some under the cover of Australian entities. Retired American soldiers, who didn’t always know who was really employing them, were hired to manage procurement and shipping. The operation was run by David Petraeus, the CIA director who would soon resign when it became known he was having an affair with his biographer. (A spokesperson for Petraeus denied the operation ever took place.)

The operation had not been disclosed at the time it was set up to the congressional intelligence committees and the congressional leadership, as required by law since the 1970s. The involvement of MI6 enabled the CIA to evade the law by classifying the mission as a liaison operation. The former intelligence official explained that for years there has been a recognised exception in the law that permits the CIA not to report liaison activity to Congress, which would otherwise be owed a finding. (All proposed CIA covert operations must be described in a written document, known as a ‘finding’, submitted to the senior leadership of Congress for approval.) Distribution of the annex was limited to the staff aides who wrote the report and to the eight ranking members of Congress – the Democratic and Republican leaders of the House and Senate, and the Democratic and Republicans leaders on the House and Senate intelligence committees. This hardly constituted a genuine attempt at oversight: the eight leaders are not known to gather together to raise questions or discuss the secret information they receive.

I had a couple of reactions to this passage on the subject of congressional oversight.

First, Hersh’s language seems calculated to imply illegal behavior on the part of the CIA without reporting facts to support such an inference.  While congressional oversight obligations can be contested by the Executive Branch as a matter of competing institutional interests, the governing law enacted by Congress either requires disclosure to Congress of this alleged operation or it does not.  Thus, this excerpt from Hersh’s article strikes me as particularly unfair:  “The operation had not been disclosed at the time it was set up to the congressional intelligence committees and the congressional leadership, as required by law since the 1970s.  The involvement of MI6 enabled the CIA to evade the law by classifying the mission as a liaison operation.”  The first sentence makes it sound as if the CIA failed to disclose a mission in violation of law and the second sentence asserts the CIA was able to “evade the law” because it was classified as a liaison operation with MI6.  Again, the CIA was either under a legal obligation to report to Congress or it wasn’t.

To be sure, foreign liaison relationships do present concrete congressional oversight problems. Like operations executed by intelligence contractors, liaison operations risk outsourcing otherwise illegal behavior at the direction of, with the knowledge of, or with willful blindness by U.S. intelligence officials.  A Harvard research memorandum entitled Intelligence and International Cooperation observes that liaison operations with foreign intelligence services often involve moral hazards in which the United States benefits from unethical or illegal activities of foreign counterparts.  For example, intelligence liaison relationships are central to public allegations of torture related to the Rendition, Detention and Interrogation program.

A false flag chemical weapons operation calculated to ignite world condemnation of Syrian leadership would certainly raise imperative moral, ethical, and legal problems.  However, a U.S.-supported covert conventional arms “rat line” to Syrian opposition seems relatively unremarkable.  There have been other public reports that the United States has offered covert support for certain Syrian opposition groups.   As Marty has written, covert action is often as much about diplomatic consequences of official acknowledgement as it is about need for actual secrecy.  As the Harvard memorandum notes, liaison relationships help “obscur[e] otherwise obvious U.S. behavior in foreign countries.”

Second, Hersh’s suggestion that a “highly classified annex” to the committee’s report that was circulated to the staff authors of the report and the Gang of Eight raises its own questions.  Was the “annex” drafted by Senate staffers based on review of executive branch materials? Or, is the “annex” an underlying exhibit to the report itself?  Is it an intelligence community response to the report?  If the Senate staff drafted it, then there is a question of whether the intelligence community agrees with the congressional recitation of events.  It strikes me as odd that it would be an intelligence community product.

Third, whatever the annex is, according to Hersh it was distributed to the Gang of Eight.  One is certainly within their rights to believe, as Hersh asserts, that the Gang of Eight is “hardly…a genuine attempt at oversight.”  The ACLU offers a representative critique of the Gang of Eight as an ineffective oversight mechanism.  However, with respect to certain highly classified covert action efforts constituting “extraordinary circumstances,” the National Security Act of 1947, as amended, establishes the Gang of Eight as the proper congressional reporting channel (see also, here).  Further, it has been an executive branch practice for some time.  I agree that such limited disclosures to Congress do not promote searching oversight.  However, it is hardly suggestive of illegal conduct by CIA vis-à-vis Congress.