Congressional oversight? Surely you jest

We’ve mentioned the unfortunate plight of former US intelligence analyst Richard Barlow before. But this October 19 Congressional Quarterly article highlights a different aspect of his story; namely, is Congress really interested in trying to prevent nuclear proliferation or does it just grandstand? No, no, really, that is a serious question.

Anyway, the following excerpts nicely illustrate the black box that is congressional interest in nonproliferation issues:

Say you’re a member of Congress, and a Pentagon expert tells you that top officials are secretly letting Taiwan go nuclear, to contain China’s emerging threat.

Do you: (1) start an investigation, with an eye toward hearings to grill officials on the facts, or (2) drop it and stand aside as officials run your whistleblower out of town?

In the real-life case of Pakistan and nuclear weapons, the answer from Congress has been (2). Twenty years ago, the House Foreign Affairs Committee learned that officials in the Reagan and Bush administrations were looking the other way while Pakistan acquired US technology for its clandestine nuclear weapons program. Later, the United States allowed Pakistan to tweak its US-supplied F-16s to carry nuclear bombs over India.

Okay, that has been obvious for a long time now. But shouldn’t Congress be the slightest bit outraged when executive branch officials openly acknowledge that it is administration policy to treat members of Congress like mushrooms, ie, keep them in the dark? Apparently not.

The closest Congress came to airing Barlow’s charges came in the 2001 Senate Armed Services Committee confirmation hearing of Paul D Wolfowitz to be deputy secretary of Defense. According to Barlow, Wolfowitz knew what Pakistan was doing in the 1980s when he was undersecretary of State and later deputy secretary of Defense for policy in the Reagan and Bush administrations.

Barlow’s name was never mentioned, but Sen Carl Levin, D-Mich, briefly summarized what happened after Barlow told Congress the truth and asked Wolfowitz if whistleblowers should be retaliated against if they provided Congress classified information.

My answer is, absolutely not, Wolfowitz said. He added that he was aware of the issue in the 1980s, and sought to distance himself from the decisions of Reagan and Bush administration officials not to tell Congress what was going on.

I specifically sensed that people thought we could somehow construct a policy on a house of cards that Congress wouldn’t know what the Pakistanis were doing. I’ve always thought policies based on withholding information from Congress are going fail in the long run, and in that case there was a clear legal obligation to keep the Congress informed, Wolfowitz told Levin in 2001.

And apparently, despite previous hearings on the issue, Congress is not all that interested in whether the Khan network is really closed down.

Six and a half years later, the House Subcommittee on Terrorism, Nonproliferation and Trade was trying to find out if the Khan network had been closed down or was simply under new management. Pakistan has prohibited US intelligence from asking Khan or other officials if they made nuclear materials available to al Qaeda.

Barlow’s name never came up.

And there are no firm plans to explore his allegations in the near future, said Brad Sherman, D-Calif, who chairs the subcommittee.

The committee does not have plans to hold any hearings on this topic before the end of the year, Sherman said through a spokesman. We most recently discussed the issue of Pakistan and nuclear weapons in July. We are carefully following the issue, gathering information and if new information warrants we will hold a hearing.

Rep. Ellen O Tauscher, D-Calif, whom an aide described as the foremost expert on nonproliferation in Congress, did not respond to a request or comment over three days last week.

So what is the moral of this congressional display of indifference? As that great American nonproliferation specialist WC Fields famously said, Go away boy, you bother me. Or, put another way, no good deed goes unpunished.

A few senators, in particular, Jeff Bingaman of New Mexico, where Barlow used to live, have spent years trying to get the erstwhile nuclear smuggling expert some compensation for his pain and sorrow. Bingaman offered an amendment to the fiscal 2008 Defense spending bill that would consider compensation for wrongful termination.

According to multiple sources, Republicans close to the Pentagon have blocked it.

There have been holds on it since day one, sighed Beth Pellet Levine, a spokeswoman for Iowa Republican Charles E Grassley, a supporter of the provision. Day one was a decade ago.

Barlow’s supporters in the Senate thought they could help him by referring his case to the US Court of Federal Claims, which would sort out the merits of Barlow’s quest for compensation.

It backfired.

CIA and Pentagon officials threw a cloak over the proceedings, declaring the supportive documents and depositions by top officials – including from CIA Deputy Director Richard Kerr and senior State Department arms negotiator Robert Galluc state secrets. The Reagan-appointed judge ruled not only that the government had the right to muzzle Barlow, but could withhold classified information from Congress.

Lou Fisher, the Congressional Research Service’s senior specialist on the separation of powers, called the court’s decision repugnant.

It is my personal judgment that the manner in which the Court of Federal Claims handled the case failed to do what the Senate asked: to get the facts, Fisher wrote in a private letter to Jennifer Hemingway, who in 2005 was looking into the Barlow matter for the Senate Committee on Homeland Security and Governmental Affairs. The executive branch, by asserting the state secrets privilege, essentially told the court that it was not entitled to know the facts, and the court, in accepting that position, essentially told the Senate – and Congress – that it was not entitled to know the facts.

To me that is deeply repugnant, Fisher continued. In part, the Barlow case represents a matter of simple justice and fairness to an individual who dedicated his life to public service. More broadly, it ties directly to the institutional integrity of Congress and its right to be informed. Denied essential facts, it cannot perform its constitutional duties.

Today the committee has no interest in Barlow’s case, because it generally does not take up individual whistleblower cases in which the relevant agencies and subject matter fall under other committees’ jurisdictions, says Leslie Phillips, the committee’s communications director. ‘Instead the Committee focuses on enhancing protections for whistleblowers governmentwide.’

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