By Ernest A. Canning on 4/3/2017, 8:35am PT  

In August of 1822, James Madison, one of this nation's Founding Fathers, famously argued: "Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

On the other hand, on January 6, 2017, a joint Intelligence Community Report ("IC Report"), entitled "Assessing Russian Activities and Intentions in Recent US Elections" explained: "The Intelligence Community rarely can publicly reveal the full extent of its knowledge or the precise bases for its assessments, as the release of such information would reveal sensitive sources or methods and imperil the ability to collect critical foreign intelligence in the future."

There is a core conflict seen in those two quotes. What we see proclaimed in the IC Report is a direct collision between self-proclaimed national security interests and the public's right to know.

There is no question that Congress has both the Constitutional right and obligation to investigate "Russia-gate". It does so in accordance with its exceedingly broad powers of oversight that include the ability to "provide new statutory controls over the executive," executive accountability and to exercise its exclusive power of impeachment.

It is really not controversial to suggest, as did The Chicago Tribune, Sen. John McCain (R-AZ), and Adam Schiff (D-CA), that Congressional hearings be conducted either by an independent or select committee. But even if a reasonable level of investigative objectivity and integrity is achieved, the thorny question remains as to the extent to which such hearings, and testimony from witnesses, should be carried out in public.

It is a difficult issue that pits the public's right to know against (a) avoiding disclosure of classified information, and (b) compromising the ability of federal prosecutors to secure criminal convictions in their own parallel investigations...

Secrecy

The "Intelligence Community" assures us that the conclusions presented in it's declassified IC report "are identical to the highly-classified assessment, but [the declassified] document does not include the full supporting information."

The IC Report proclaims, with "high confidence," that "Russian President Vladimir Putin ordered an influence campaign...to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and...to help...[Donald] Trump's election chances." This, they assert, entailed "messaging strategy that blend covert intelligence operations --- such as cyber activity --- with overt efforts by Russian Government agencies, state-funded media, third-party intermediaries and paid social media users or 'trolls'." The IC Report proclaims "with high confidence that Russian military intelligence…used the Guccifer 2.0 persons and DCLeaks.com to release victim data obtained in cyber operations publicly and in exclusives to media outlets and relayed material to WikiLeaks."

This may or may not all be true. There is some publicly available evidence to support aspects of the IC Report assessment. For example, referring to the first dump of purloined emails by DCLeaks, Glenn Caplin, former Clinton Campaign National Spokesperson, suggested that the hackers had been "sloppy" because they left "Russian metadata" on it. However, an individual claiming to be Guccifer 2.0, who boasted that he'd had access to the DNC server until June 12, 2016 when the DNC "rebooted their system," told Lorenzo Francchierai of Motherboard that he was Romanian. He denied he was connected to the Russians and claimed that he left the Russian metadata in the leaked documents as his personal "watermark."

These representations were disputed by the IC Report, which states:

Guccifer 2.0, who claimed to be an independent Romanian hacker, made multiple contradictory statements, and false claims about his likely Russian entity throughout the election. Press reporting suggests more than one person claiming to be Guccifer 2.0 interacted with journalists.

The IC Report's assessment that it was the Russians who hacked the DNC was independently supported by CrowdStrike, the security firm that had been hired by the DNC to investigate the original intrusion. CrowdStrike linked malware tools used in the DNC hack to Russia's Federal Security Services (FSB) and to Russia's foreign military intelligence agency, the GRU.

These conclusions were questioned by Jeffrey Carr, who noted that others, including an anti-Russian Ukranian hacker, had access to one of the malware applications. However, Carr's critique centers on CrowStrike's contention that the Russian military had previously used one of the same malware applications against Ukrainian artillery, an event Carr claims may never have occurred.

But Carr does not directly link the Ukranian hacker to the DNC hack. He offers no explanation as to how or why --- despite Hillary Clinton's pro-Ukrainian positions --- a Ukrainian hacker would have targeted the DNC. Indeed, it seems illogical, perhaps even ludicrous, to assume that an anti-Russian Ukrainian would seek to harm Clinton's chances to prevail against Trump by not only hacking into the DNC server but also by then releasing emails harmful to her campaign to DCLeaks or, later, to WikiLeaks.

The "Intelligence Community" may well have access to information beyond what Dmetri Alperovitch of CrowdStrike refers to as the DNA match in malicious code that he says ties Russia to the hack, but that evidence is not set forth in the IC Report. Moreover, while CrowdStrike's forensic examination, especially when combined with the Guccifer 2.0 claim that it had accessed the DNC site, may warrant a conclusion that Russian intelligence was behind the hack, it remains troubling that the FBI failed to conduct its own forensic examination of the DNC server. That failure has caused others in the cybersecurity industry to question whether the allegation of a direct Russian hack has been adequately substantiated.

To the extent that journalists and the public are denied access to that type of supporting data, they are deprived of the ability to verify or refute the accuracy of the IC Report assessment. Instead, access outside the "Intelligence Community" is confined to the privileged few who possess both the required security clearance and need to know, such as the members of House and Senate Intelligence Committees and the Congressional Gang of Eight.

It is somewhat helpful that Sen. Angus King (I-ME), a member of the Senate Intelligence Committee, after spending several hours reviewing documents at CIA headquarters, said that the documents provided "substantial backup" to the declassified report. It is also helpful that FBI Director James Comey, in his sworn Congressional testimony, presented Russia's involvement --- as opposed to suspected Trump campaign collusion --- as an established fact. However, their assurances still leave journalists and the public in the untenable position of having to, for the most part, accept the Intelligence Community assertions based upon nothing more than public reliance on the integrity of those select few members of Congress who have access to but cannot disclose the details of the classified information.

The core problem can be found in the Latin phrase Scienter est Potentia (Knowledge is Power). In a democracy, ultimate power is supposed to reside with the people. Yet, to the extent that the decision whether to classify information rests with insiders of the "Surveillance-State", knowledge and the power it provides is concentrated at the top.

In addition to the unfair advantage possessed by those with exclusive access to classified information, both the press and the public must be wary of the internal bias of Surveillance-State insiders. For example, the allegation is made in the IC Report --- oft repeated by commentators in the corporate-owned media --- that RT is simply a propaganda arm of the Russian government. In support of this view, the authors of the IC Report complain that "RT's reports often characterize the United States as a 'surveillance state' and allege widespread infringements of civil liberties [and] police brutality." "RT," the Intelligence Community complains, "focused on criticism of the US economic system, US currency policy, alleged Wall Street greed, and on the US national debt."

The truth is that Sen. Bernie Sanders (I-VT), presently this nation's most popular politician, according to at least one recent poll, has leveled many of these same criticisms. Sanders critiques could hardly be characterized as pro-Russian propaganda.

The effort to label RT as a mere propaganda arm of the Russian government amounts to nothing less than a smear of solid, evidence-based journalism like that offered by Thom Hartmann, anchor of The Big Picture RT, whose reporting has never burnished the image of, or policies advocated by, either candidate or President Trump.

If ultimate power truly rests with the people, any such hearings on this matter should, to the extent possible, be public.

During their March 29, 2017 joint news conference, the Chair and Ranking Member of the Senate Intelligence Committee, Senators Richard Burr (R-NC) and Mark Warner (D-VA) appeared to have adhered to that principle in promising to eventually question witnesses they deem relevant to their bi-partisan inquiry. However, both suggested they and the public would do well not to jump to premature conclusions. There are, according to Sen. Burr, literally thousands of classified documents that they and committee staff will have to review even before they can gain the information needed to conduct meaningful interviews of what will likely turn out to be scores of witnesses.

It is not entirely clear whether or not the Senate Intelligence Committee interviews will follow the format that occurred during Watergate, in which witnesses underwent sworn deposition testimony in closed session, with depositions later relied upon during public questioning of those same witnesses. However, Sen. Burr made it clear that there would be public hearings in which the witnesses would be called to testify so as to get as much of the information as possible into the public domain. Both Senators say they want the public to be in a position to judge the validity of the bi-partisan report they hope to produce.

Criminal Justice

The public's right to know can also run afoul of the ability of either the Department of Justice or a special prosecutor to secure criminal accountability should the FBI's pending investigations produce evidence to support criminal prosecutions.

If they follow a similar pattern as those applied during Watergate, the Intelligence Committees will likely work their way up a list of witnesses, following the evidence to wherever --- and to whomever --- it leads. In the case of Watergate, that path ultimately led to President Richard Nixon, who resigned rather than face certain impeachment by the House and conviction in the Senate.

While the object of the current Intelligence Committee proceedings is to follow the evidence and produce a report, there is a distinct possibility that their findings, along with multiple apparent Emoluments Clause violations, could furnish grounds for impeachment of the President. If a partisan Congress refused to act on those grounds, impeachment could serve as a valid issue for voters to consider during the 2018 midterm election.

The problem arises if and when witnesses called by the committees invoke their 5th Amendment privilege against self-incrimination, or, as recently occurred when Trump's short-lived National Security Adviser, General Michael Flynn, whose attorney now claims he has "a story to tell," offered to testify in exchange for immunity from criminal prosecution.

The Committees have the power to compel a witness to testify by granting them "use immunity" pursuant to 18 U.S. Code § 6002. But, as we learned in the aftermath of the Iran-Contra hearings from the U.S. Court of Appeal, D.C. Circuit, in United States v. Poindexter (1992), compelled public Congressional testimony would likely prevent the successful prosecution of someone who may have conspired with the alleged Russian espionage. In such an instance, prosecutors would find themselves in the untenable position of having to prove that no witness's testimony was influenced either directly or indirectly by the compelled Congressional testimony. (Use immunity does not prevent subsequent prosecution for perjury, should the otherwise immunized witness knowingly give materially false testimony.)

There are a multitude of factors that must be weighed in determining when and whether a grant of Congressional immunity is appropriate. We saw one of those factors in the Senate Intelligence Community's prompt denial of what it saw as General Flynn's "wildly preliminary" request. Congress should weigh the scope and value of the information to be acquired from the anticipated testimony against its ability to acquire the same information without interfering with a potential federal prosecution. As observed by Schiff, the House Intel Committee's ranking Democrat: "While Mr. Flynn's testimony is of great interest to [the Committee], we are also deeply mindful of the interests of the Department of Justice in the matter."

If the Intelligence Committees feel it essential to compel testimony via a grant of use immunity but wish to avoid interfering with a subsequent criminal prosecution, the committees could minimize the adverse impact on a subsequent prosecution by receiving the testimony during a closed session, preventing access to both the public and federal prosecutors.

On the other hand, if evidence of complicity by Trump or a member of his campaign team were to be presented over the course of proceedings that dragged on beyond the 2018 election, one might reasonably argue that the right of the electorate to decide whether removing miscreants from office is more important than the ability to hold those miscreants criminally accountable.

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing