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As Congress fumes over CIA secrets, whither Cheney?

With reports that the former vice president kept Congress in the dark, Democrats call for an official probe of a mysterious CIA program.

By Cheryl SullivanStaff writer / July 12, 2009

Former Vice President Dick Cheney defended the Bush administration’s antiterrorism policies – including warrantless domestic surveillance, ‘enhanced’ interrogation techniques for terrorism suspects, and the US Guantánamo prison camp – during a speech in May at the American Enterprise Institute in Washington.

Joshua Roberts/Reuters

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Now what will Dick Cheney have to say?

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The former vice president, self-appointed defender-in-chief of the Bush administration's anti-terrorism policies, is again the man of the hour amid news reports that he concealed from Congress information about the development of a top-secret CIA counterterrorism program.

In the days since members of the House and Senate intelligence panels learned of the still-unspecified CIA program on June 24, and in the hours since The New York Times reported July 11 that Congress was kept out of the loop for eight years on Mr. Cheney's "direct orders," America's former No. 2 has been mum.

Allegations of illegal action

Cheney may well opt to remain silent – on this particular matter, at least – given that some Democratic lawmakers on Sunday implied or flat-out stated that such a failure to inform Congress is illegal. Intelligence panel members from both the House and the Senate say Congress should investigate.

Rep. Jan Schakowsky (D) of Illinois, chairwoman of the House Intelligence Oversight and Investigations Subcommittee, said a formal probe is needed of the CIA's practices and the Bush administration's decision to keep Congress in the dark.

"What it does is really propel a prompt investigation," she said over the weekend in an interview with Politico. "An explicit decision was made at the highest levels not to report this program."

GOP rebuttals

With media outlets reporting that efforts to reach Cheney are so far futile, Republican lawmakers were left to supply the counterpoint to Democratic indignation. During Sunday morning's TV news shows, they agreed that Congress should have been informed but sought to slow the fast march to a congressional investigation, suggesting that Democrats' motives are mainly to score political points and to make the Central Intelligence Agency into a "whipping child."

The failure to disclose "isn't reason to disassemble the CIA and make them a whipping child in the middle of the public opinion, which basically undermines the morale of the whole agency," said Sen. Judd Gregg (R) of New Hampshire, on CNN's "State of the Union." "This national attempt by some of our colleagues on the other side of the aisle to basically undermine the capacity to collect and develop intelligence is, I think, going to harm us in the long run."

The arc of the story is that current CIA Director Leon Panetta himself did not know of the still-classified program until June 23, canceled it immediately, and then briefed the full intelligence committees in both houses of Congress on June 24. Senate Intelligence Committee chair Dianne Feinstein (D) of California said July 12 that Mr. Panetta said "he had been told the vice president had ordered that the program not be briefed to the Congress.”

What the law says

The National Security Act of 1947 does require Congress to be briefed about CIA operations. Section 501 states unequivocally that "the President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity...."

But there may be a little wiggle room in the reporting requirement. Section 502 says the CIA director and other US officials must fulfill that obligation "to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters."

The secret CIA program is said to be unrelated to two other controversial counterterrorism programs instituted by the Bush administration after the 9/11 attacks: domestic surveillance without judicial oversight, and harsh interrogation methods used on suspected terrorists. Cheney has staunchly defended both.