JIM LEHRER: And still to come on the NewsHour tonight: how the economic downturn is affecting the price of milk; and making it easier to organize unions.
That all follows new concerns about Bush administration-era intelligence practices. Gwen Ifill has that story.
GWEN IFILL: Democrats are demanding fresh investigation into whether the Bush administration failed to brief Congress on the existence of a secret program to target, capture, or kill al-Qaida operatives.
SEN. DICK DURBIN (D), Illinois: To have a massive program that is concealed from the leaders in Congress is not only inappropriate, it could be illegal.
GWEN IFILL: News reports suggest the program, constructed shortly after the September 11th attacks, was never operational. Nevertheless, CIA Director Leon Panetta told lawmakers he shut the program down after he learned about it just last month. This has not mollified many Intelligence Committee members.
Democrat Dianne Feinstein said Panetta told him that former Vice President Cheney had ordered the program kept secret.
SEN. DIANNE FEINSTEIN (D), California: And I think that, if the Intelligence Committees had been briefed, they could have watched the program. They could have asked for regular reports on the program. They could have made judgments about the program as it went along. That was not the case because we were kept in the dark. That’s something that should never, ever happen again.
GWEN IFILL: Republicans say such investigations would put the nation’s intelligence agencies at risk, and the Obama administration has resisted launching investigations into CIA practices and detainee interrogation.
ROBERT GIBBS, White House Press Secretary: The president believes that Congress should always be briefed fully and in a timely manner in accordance with the law.
GWEN IFILL: But as pressures have continued to build, Newsweek reported this weekend that Attorney General Eric Holder is close to appointing a special prosecutor to investigate whether CIA operatives tortured terror suspects.
Who knew what?
GWEN IFILL: For more on the debate over who knew what and who should have, we turn to two journalists with extensive experience covering intelligence issues. David Ignatius is a columnist for the Washington Post, and Jane Mayer is a staff writer for the New Yorker. Her latest book is "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals."
Welcome to you both.
So what do we know, Jane, about who knew what, what they should have known, and who didn't know?
JANE MAYER, The New Yorker: Well, I guess what we know now is, because the new director of the CIA, Panetta, has told the committee, what we know is that former Vice President Cheney specifically wanted the committee not to be briefed on a particular program in the war on terror.
And that's unusual. I mean, we knew that he really disliked the oversight part of Congress. He's always been against it. But to actually cut them out on purpose is -- you know, it's going to create an obvious huge fight, a big problem.
GWEN IFILL: David, what do we know, if anything, about what that program may have been?
DAVID IGNATIUS, The Washington Post: We don't know much. It appears that this was a program seeking to go after probably, assassinate senior al-Qaida leadership after September 11, but the details of that, the nature of the effort is unclear.
There's reporting that suggests -- this is reporting in the British press -- that suggests these may have been planned as attacks in friendly countries where the U.S. wouldn't notify the host government, but I can't confirm that with my own reporting.
GWEN IFILL: Was this -- depending on what it was that was at the heart of this, how unusual was it that this sort of information, that such a program was even under consideration, would not have been shared with Congress?
DAVID IGNATIUS: What's surprising about this, Gwen, is that I think most people, if you ask them, are we going after top al-Qaida leaders, would have said, yes, absolutely. We have a program today. We read about it in the papers every other week to assassinate al-Qaida leaders using Predator unmanned drones over the tribal areas in Pakistan. We've had other operations using these Predator drones to go after people in Yemen when we get targeting.
So it's clear that we've had a program to go after, to assassinate al-Qaida leaders where we have intelligence. What was different about this, why the agency regarded it as a separate program isn't clear. It's said that the program was never fully operationalized and that that's why it hadn't been briefed, in part because it hadn't actually been used. But, again, we don't know much about it.
JANE MAYER: But, Gwen, you know, there are a number of people on the committees who have said and argued that they really don't feel that they've been appropriately briefed throughout the Bush years. I mean, and you've had, for instance, Senator Whitehouse from Rhode Island who said that he felt that the Bush administration lied to them.
I talked to him at one point. And he said the kind of briefings they had, it was like looking through a porthole in an aquarium. Every now and then something would swim by, but you really couldn't tell what the beast was there.
And others have said to me it was like 20 questions. They'd have the CIA come down and sit with them and tell them -- only when they asked the right question would they get a full answer.
So this whole issue of congressional oversight is a raw one, and there's a lot of hard feeling about it, obviously.
Impact of congressional oversight
GWEN IFILL: Is congressional oversight something which is considered by people in the intelligence agencies to be a problem, something which could basically make it harder for them to do their jobs effectively?
DAVID IGNATIUS: Congressional oversight really dates from the late 1970s and the scandals that were investigated by the Church Committee. I think what bothers people is not informing Congress of what they're doing.
They accepted that, the need for that, but the increasing idea -- you can hear a little bit of this in Senator Feinstein's comments coming into this segment -- that Congress is co-managing our intelligence agencies.
I think there is a feeling certainly at the CIA that that's just wrong and that it's increasingly a problem if you feel that you're working not for the president, but to try to keep members of Congress comfortable.
GWEN IFILL: What's the distinction between co-managing and oversight?
DAVID IGNATIUS: Well, that's a good question. The CIA is an executive arm of the president and operates to do things that, you know, by their nature need to be hidden, need in some cases to be denied. If you can do it openly, you do it through another agency. We so often forget, the CIA exists really to systematically violate the laws of other countries.
JANE MAYER: But not our own laws. That's what the issue...
DAVID IGNATIUS: But not our own laws, but I do think that one question, as we think about the mistakes that the CIA made, and did they tell about this or that, an abiding question for me is, do we have the kind of intelligence agency we need in a world like this, that is dangerous? How is CIA performance being affected by these investigations, by the threats of prosecution? My sense is that this is a tough time for the CIA and that performance is suffering.
Investigating Bush-era policies
GWEN IFILL: The Obama administration has said they don't particularly want to look back at this or questions about detainee terror, torture, interrogations. Are they changing their minds now?
JANE MAYER: Well, it depends which part of the administration you're talking about. I mean, the political team around President Obama really does not want to open up this can of worms. They see this as a distraction that's going to get in the way of their own priorities, which are things like health care, and they just do not want this right now.
But Eric Holder, the new attorney general, has a very different mandate. He has to -- if he sees incredible allegations of torture under our own laws, he is obligated to investigate, because under the Convention Against Torture, that is the obligation of us as a signatory.
And he also, you know, needs to, if there's some egregious example of criminal behavior, he will feel, you know, conscientious need to investigate. So that's where he is. I mean, it seems that he's right on the edge of authorizing some kind of investigation, new investigation.
GWEN IFILL: Over the objections of the White House?
JANE MAYER: Well, in the past, they've certainly said that's not a direction they want to go in, but it hasn't come down to him saying, "I want to do this," and them saying no. So we will see. I mean, I think there's a showdown that will take place soon.
GWEN IFILL: Showdown, do you agree with that?
DAVID IGNATIUS: I think there is a showdown. I think this is one where President Obama really is going to have to make a very hard choice. He has said, "I want to look forward, not backward." He's said that to the CIA. He's gone out to CIA and told people that.
And he's getting pressure from people in Congress and now from his attorney general to launch a special investigation of some kind that would have us looking backwards.
GWEN IFILL: Is the a distinction, perhaps, about who gets to do the looking, whether it's a congressional hearing with all the klieg lights or whether it's a special prosecutor from the Justice Department?
DAVID IGNATIUS: What the Obama administration originally said made a lot of sense to me, which was that, to the extent that CIA officers were operating within what they understood to be the guidelines that they were given by Justice Department, the Office of Legal Counsel during the previous administration, they should, in effect, be held harmless.
It wasn't just cutting them a break. I mean, the truth is, to win a criminal case, you've got to prove criminal intent. And if somebody was relying on a memo, it's hard to show criminal intent.
They said -- and they were going to do prosecutions on a case-by-case basis if they found evidence that people were way outside of those rules. They seem to be -- Holder seems to be changing in that.
And, you know, again, talking to my sources today in the intelligence community, it really has people back on their heels. They're rocked. They thought they were promised that they were going to get -- you know, we were going to get through this and move on. And they feel like they're going to be caught in this basically for the rest of their careers.
GWEN IFILL: Are you hearing the same thing?
JANE MAYER: Not necessarily, because some of the people that they're thinking of targeting in this are contractors, as opposed to CIA officers. And I think what's changed is some of the information about whether they were way outside the rules.
I mean, in recent documents that have been released, for instance, we've seen that people were waterboarded, one person 183 times. That is according to the inspector general of the CIA, John Helgerson, way outside what he had expected to be the rules. So, you know, I think there's much more divided opinion than I'm getting, anyway, inside.
GWEN IFILL: So this debate sounds like it's just beginning. Jane Mayer, David Ignatius, thank you both very much.