Months after Intelligence Community IG Accepts Budget Cut, He Pleads Resource Limitations on Oversight Request

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Back when Ron Wyden was trying to get the Intelligence Committee and NSA Inspectors General to reveal how many Americans had been surveilled under the FISA Amendments Act, they stalled long enough to prevent Wyden from requiring such a review statutorily. Then IC IG Charles McCullough came back and said, in addition to privacy laws, resource limitations prevented such a review.

On June 15, the IC IGs finally got back to Wyden and Udall. (h/t Wired) Note the dates cited in the response.

On 21 May 2012, I informed you that the NSA Inspector General, George Ellard, would be taking the lead on the requested feasibility assessment, as his office could provide an expedited response to this important inquiry.

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

As I stated in my confirmation hearing and as we have specifically discussed, I firmly believe that oversight of intelligence collection is a proper function of an Inspector General. I will continue to work with you and the Committee to identify ways that we can enhance our ability to conduct effective oversight. [my emphasis]

So IC IG Charles McCullough waited 17 days to even tell Wyden what he was going to do with the request, at which point–the eve of the bill markup–he told Wyden that Ellard would prospectively conduct the inquiry. So when the Committee decided not to mandate an IG review based on the “pending” review, it had not started yet. The NSA IG provided Wyden with a classified response the day before the bill report was released, making it impossible to get any hint of the results of the review into the report. And now this letter basically says that the IG purportedly able to answer these questions neither has the resources to do so nor the legal authority to do so (presumably under the Privacy Act).

Granted, while IC IG McCullough responded to Wyden, it was NSA IG George Ellard who claimed “such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission”–basically saying too much oversight would get in the way of NSA’s mission.

Nevertheless, having pleaded resource limitations on what these two IGs could do, I find these two bullets of the Director of National Intelligence’s 2013 Budget Justification (h/t Secrecy News; see page 46) particularly troubling.

(U) The [half line redacted] The IC IG certifies that this amount is sufficient to [several words redacted]

for the Office of Inspector General at the current authorized staffing level.

(U) The IC IG does not believe the FY 2013 budget request will substantially inhibit his ability to perform

his statutory function.

Bullets like these appear for none of the other DNI functions. It seems almost certain they refer to a budget cut, with McCullough certifying that he can fulfill the duties laid out by statute.

This budget justification was submitted in February; the budget would have gone into effect October 1. Thus, just months after McCullough certified he could do what he needed to–or at least what he is required to do by law–with the budget described, he was telling Wyden that he and another IG couldn’t give him very basic information about a spy program, in part, because of resource limitations.

And of course, that seems to be precisely the way Director of National Intelligence James Clapper likes it.

Lisa Monaco Moves On without Fulfilling Promise to Reveal FISA Court Opinions

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In response to Chuck Grassley’s question whether the government has struck the right balance between national security and civil liberties leading up to her confirmation as Assistant Attorney General for National Security, Lisa Monaco claimed the right balance had indeed been found.

Do you believe that an appropriate balance has been struck between national security concerns and civil liberties?

Agents, analysts and prosecutors who work every day to protect us from national security threats do so pursuant to the authorities Congress has given them under the Constitution. I believe these authorities reflect an effort to strike a balance between the imperative of protecting national security interests of the United States on the one hand and the importance of doing so consistent with the fundamental rights guaranteed under the Constitution. Through carefully crafted authorities, compliance efforts within the Executive Branch and robust Congressional oversight of those compliance efforts, I believe we have been able to strike the right balance over time.  As the threat continues to evolve, and technology develops that better enables us to detect and disrupt threats while at the same time providing new tactics and capabilities to those who would do us harm, we must be constantly vigilant in our efforts to maintain that balance.

In her other answers, she emphasized the importance of having “relevance” standard access to call data and other records so as to provide the probable cause to investigate people.

As noted above, NSLs (some of which are issued under ECPA) form the building blocks of national security investigations under a relevance standard. This is vital to the ability of national security investigators to obtain information that forms the basis for probable cause and to further national security investigations.

In utterly related news, Jeff Merkley recalled last month that during her confirmation process in 2011, Monaco supported the idea of releasing FISA Court opinions that–it appears–would reveal how these “relevant to” laws have been used to substantiate probable cause.

Congress never intended the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we do not have the details of exactly how this proceeds and we cannot debate in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of protections and efforts to close loopholes that Senator Wyden has put forward.

What we do know is that this past summer, the Director of National Intelligence said in a public forum that on at least one occasion the FISA Court has ruled that a data collection carried out by the government did violate the fourth amendment. We also know that the FISA Court has ruled that the Federal Government has circumvented the spirit of the law as well as the letter of the law. But too much else of what we should know about this law remains secret. In fact, we have extremely few details about how the courts have interpreted the statutes that have been declassified and released to the public.

[snip]

In 2010, due to concerns that were raised by a number of Senators about the problem of classified FISA Court opinions, the Department of Justice and the Office of the Director of National Intelligence said they would establish a process to declassify opinions of the FISA Court that contained important rulings of law. In 2011, prior to her confirmation hearing, Lisa Monaco, who is our Assistant Attorney General for National Security, expressed support for declassifying FISA opinions that include “significant instructions or interpretations of FISA.”

Yet here were are, two years later, and Lisa Monaco is moving on to replace John Brennan at the White House. Yet we still haven’t seen the memos that describe how the government uses massive databases of information collected using this “relevance” standard to then access the private communications of Americans (which are probably the same databases).

Mind you, Monaco is not the person most responsible for refusing to declassify documents that describe the shreds of the Fourth Amendment in this country–she’s not the Original Classification Authority.

Nevertheless, we’ve got another fan of massive data mining moving into an oversight free position in the White House without having fulfilled her commitment to tell the American people what they’re doing with that data mining.

Jack Goldsmith, Open Source OLC Lawyer, to Obama: You’re Breaking the Law

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Eleven days ago, Senate Intelligence Committee member Ron Wyden sent a publicly released letter to John Brennan making two things clear:

  • The Administration has refused to tell grunt (that is, non-Gang of Four) members of the Senate Intelligence Committee whether its targeted killing program–extending even to the killing of US citizens–is authorized under Article II or AUMF power.
  • The Administration has refused to tell grunt members of the Senate Intelligence Committee which countries it uses “lethal counterterrorism authorities” in.

Nine days later, Jack Goldsmith, a man best known for going to some length to force a President to have credible legal justifications for his counterterrorism programs, wrote this column, offering his advice about “What to do about growing extra-AUMF threats?”

Mind you, Goldsmith is addressing the legal problem presented by (and explaining his column by pointing to) our fight against AQIM in North Africa and al-Nusra in Syria. He is not pointing–at least not explicitly–to the troubling revelations of Wyden’s letter.

But Goldsmith’s advice is directly relevant to the topics on which the Administration refuses to brief the grunt Senate Intelligence Committee members. Goldsmith warns that Article II power–on which it increasingly appears the Administration is relying–doesn’t extend as far as AUMF authority would.

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower. [my emphasis]

And Goldsmith describes the importance of telling Congress–and he’s talking about telling all of Congress, not just grunt Senate Intelligence Committee members–what groups are actually included among legal counterterrorism targets.

Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach. [my emphasis]

Now, let me be clear: Goldsmith never comes out and directly says that the Obama Administration is, currently, breaking the law (and he makes no comment on whether the Administration is violating National Security Act requirements on briefing Congress). And if he did, he’d probably couch it in language about needing the cover of Congressional sanction–more language about Congress “sniping, or worse.” Nevertheless, the clear implication if you take Wyden’s letter in conjunction with Goldsmith’s Office of Legal Counsel-type advice is that the Obama Administration is conducting counterterrorism ops without legal sanction.

But consider what it means that this solidly conservative lawyer is telling the Obama Administration the same thing he had to tell George Bush when the latter relied on John Yoo’s crappy legal advice.

This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.

When Jim Comey, in response Goldsmith’s advice, dramatically stood up to Andy Card and Alberto Gonzales’ bullying in a DC Intensive Care Unit, he did so to convey to them that an “expansive interpretation” of Article II power was not good enough (though according to Tom Daschle’s read of the AUMF discussions, Goldsmith replaced John Yoo’s expansive interpretation of Article II authority with an expansive interpretation of the AUMF).

Goldsmith’s advice, writing without the authority he once had as the confirmed OLC head, and lacking the leverage of an expiring wiretapping authorization or the imposing figure of a 6’8″ Acting Attorney General to deliver his message, may not carry the weight it once did.

But he is offering fundamentally the same warning he did 9 years ago.

Update: This post has been updated for clarity.

Crowd of Unilateral Lawyers Applaud Unilateral Operator

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Sarah Cleveland? Not a judge. Greg Craig? Not a judge. William Dodge? Not a judge. Jeh Johnson? Not a judge. David Kris? Not a judge. David Martin? Not a judge. Daniel Meltzer? Not a judge. And Trevor Morrison?

Also not a judge.

Nevertheless, these eight lawyers–all of whom served the function of interpreting the law for the Executive Branch within the Executive Branch for Obama (and, in Kris’ case, for Bush)–assure you that John Brennan will uphold our laws.

Throughout his tenure as Assistant to the President for Homeland Security and Counterterrorism in the Obama Administration, John Brennan has been a persistent and determined leader in support of adherence to the rule of law, a principled commitment to civil liberties and humanitarian protection, and transparency. On a broad range of issues, he has endeavored to ensure that the national security practices of the United States Government are based on sound long-term policy goals and are consistent with our domestic and international legal obligations, as well as with broader principles of democratic accountability. John Brennan has been a steadfast champion of the President’s commitment to closing the detention facility at Guantánamo, and has urged that our Article III courts remain a vital tool in our counterterrorism toolbox. He has stood firmly with the President’s efforts to ensure that interrogations are conducted in accord with the law and our values. And he has worked to ensure that the responsible and effective pursuit of our counterterrorism objectives will not depend simply on the good instincts of officials, but will instead be institutionalized in durable frameworks with a sound legal basis and broad interagency oversight.

[snip]

John Brennan understands that adherence to the Constitution and the rule of law serve, rather than undermine, our national security interests. Time and again, he has demonstrated seasoned wisdom and judgment in responding to our nation’s greatest national security threats, and he has consistently reaffirmed his core commitment to conducting our national security and counterterrorism policy in a fashion that comports with our deepest values. [my emphasis]

Sure, there are a few tells–such as the boast that his pursuit of counterterrorism objectives will be institutionalized in a broad interagency–not interbranch–oversight. Or, on the reverse, the claim that John Brennan–whose solution to the National Counterterrorism Center’s failure to fulfill minimization requirements was just to open up all Federal databses to NCTC without that minimization–has a “principled commitment to civil liberties.”

But mostly, it’s the structural problem here. Regardless of what John Brennan himself believes–and all the public evidence suggests these lawyers are too close to judge and perhaps just a little seduced by the old spook–this Administration doesn’t stand for any of these things.

More importantly, this Administration has refused just about every opportunity to have someone else–lawyers and judges who hadn’t counseled these policies from the start–weigh these issues. The Administration has shown great disdain for both democratic accountability and Article III courts. It has ensured that interrogations–both those conducted under Bush and those conducted in dark prisons under Obama–never be tested for whether they accord with the law. Indeed, Obama’s Administration has gone to great lengths to hide our torture from international oversight and even from litigants in our own courts.

So even assuming John Brennan is the nice guy these lawyers say he is–an assumption that defies the evidence–they’re still damning Brennan with the same illegitimate argument the Obama Administration has always relied on:

Trust us.

They are emphasizing precisely why John Brennan’s success in an Administration that has refused even basic oversight should not be sufficient for confirmation to lead a secretive agency.

And while in any other week I might be inclined to grant David Kris’ word great weight, not this week. After all, Kris warned we might get into trouble with Hamdan’s material support for terrorism conviction years ago. Nevertheless, the Obama Administration is treating Gitmo with the same Kangaroo arrogance that Bush did, refusing to take the DC Circuit’s ruling on Hamdan as law, overriding their own prosecutor at Gitmo. This Administration–Brennan’s Administration–is defiant of even the warnings Kris offered years ago. So when Kris and other lawyers boast that Brennan will be a great leader consistent with Obama’s policies…

He is also exceptionally qualified to provide leadership and direction to the Agency, consistent with President Obama’s national security objectives.

… It’s shouldn’t exactly count as a glowing endorsement.

Sure, this letter to Dianne Feinstein in support of Brennan’s nomination will work. It’ll provide cover for all the evidence that Brennan is none of these things. At the very least, it’ll force a few Democrats on the Senate Intelligence Committee to consider whether they’re prepared to admit that Obama’s policies exhibit none of this respect for rule of law. Which they aren’t, yet. So it’ll serve its purpose.

The last actual judge who got a glimpse at the Obama Administration’s claim to abide by the rule of law had this to say:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping reasons for their conclusion a secret.

John Brennan is the knave of this Alice in Wonderland system of legal justice.

I take that as a far better read of Brennan’s fitness to be CIA Director than the word of the Queen of Hearts’ other cards up her sleeve.

Update: Conor Friedersdorf does more fact-checking of the claims in the letter.

Our Government’s UnPATRIOTic Investigation of Aaron Swartz

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As I noted back in December 2010, as soon as Eric Holder declared WikiLeaks’ purported crime to be Espionage, it opened up a whole slew of investigative methods associated with the PATRIOT Act. It allowed the government to use National Security Letters to get financial and call records. It allowed them to use Section 215 orders to get “any tangible thing.” And all that’s after FISA Amendments Act, which permits the government to bulk collect “foreign intelligence” on a target overseas–whether or not that foreign target is suspected of Espionage–that includes that target’s communications with Americans. The government may well be using Section 215 to later access the US person communications that have been collected under an FAA order, though that detail is one the government refuses to share with the American people.

At no point would a judge have the opportunity to challenge Holder’s assertion that a website publishing documents offered up anonymously is engaged in Espionage. All it would take is Holder’s assertion that it was, and those investigative powers would become available.

No matter how many Americans got sucked up into that investigation.

Which is why I find it interesting that Aaron Swartz’ lawyers were asking, last summer–but got only indirect answers–about how the government had collected some of the evidence, particularly emails, turned over to the grand jury.

This paragraph asked the government to “identify the origin of any and all statements of Aaron Swartz including but not limited to emails, text messages, chats, documents, memoranda or letters, i.e., to identify the source from which each statement was received and the legal procedure used to obtain each such statement of the defendant.” Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

The government offered this explanation.

In Paragraph 15, the defendant would require the government to identify the origin of any and all statements of Aaron Swartz in its possession and the legal procedure used to obtain the statements. All of the emails, text messages, chat sessions, and documents containing statements provided by the defendant relevant to this case were obtained either from individuals with whom the defendant communicated or from publicly available websites stored on the Internet. No emails, texts messages, chat logs, or documents were obtained from Internet service providers using orders under 18 U.S.C. 2703(d). As previously represented to defense counsel, there was no court-authorized electronic surveillance in this case. [my emphasis]

The government admits the defense has asked for the content and origin of all Aaron’s statement in its possession. In response, it described how it had gotten Aaron’s statements relevant to this case–which may well be just a subset of Aaron’s statements in their possession. It also says that it did not obtain any of his statements (presumably referring to the larger potential universe) using 18 USC 2703(d), which is how DOJ demanded Twitter information on four WikiLeaks figures in late 2010 to early 2011. It suggests everything it got relevant to this case was either willingly from people involved in private conversations with him–though it didn’t say whether it asked for them specifically or not–or from publicly available places. And it alludes to an earlier representation to the defense about whether or not it had intercepted Aaron’s communications in this case.

I believe these are the representations in question, which comes from early discovery discussions in August 2011.

C. Electronic Surveillance under Local Rule 1 16.1 (C)(l)(c)

No oral, wire, or electronic communications of the defendant as defined in 18 U.S.C. § 2510 were intercepted relating to the charges in the indictment.

D. Consensual Interceptions under Local Rule 1 16.1 (C)(l)(d)

There were no interceptions (as the term “intercept” is defined in 18 U.S.C. § 2510(4)) of wire, oral, or electronic communications relating to the charges contained in the indictment, made with the consent of one of the parties to the communication in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.

As you can see, in this statement the government made in August 2011 anticipated some of the same dodges the government was making in June 2012.

But in the earlier statement, the limitation on its assertions are even narrower than the later one. Whereas by June 2012 they were making assertions about “this case” in general, when they first discussed the issue, they discussed only the communications related to “the charges contained in the indictment” (though presumably they may have still been considering other charges).

Also, the second paragraph makes it very clear it is discussing intercepts only as defined under the Title III definition for intercept, which pertains to communications collected in transit. I’m not sure what the government considers communications collected under FISA and stored, though I would not be surprised, given all the discussions about the government yoking Section 215 onto FAA if they had some creative treatment of those US person communications.

None of that is proof that they had accessed Swartz’ communications via other means or, indeed, that they have any communications outside those pertaining directly to JSTOR downloads.

But their very careful hedges sure seem to leave that possibility open.

 

It’s Hard to Summarize Opinions Pertaining to Two Purportedly Unrelated Laws

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Steven Aftergood relays the explanation of a senior intelligence official as to why the intelligence community can’t release even a teensy little bit of the FISA Court’s classified opinions.

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Aftergood’s source goes on to explain that they can’t just summarize the Court’s decisions, because … well, I don’t really understand this objection, but I suspect it has to do with some disagreement between the FISC and DOJ about the opinions that currently exist.

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

Aftergood holds out hope that a letter from Dianne Feinstein will provide sufficient independent direction to convince the Court to write their own summary.

Now, I’m interested in this for two reasons. First, consider what it means that the Administration and their complacent-overseer DiFi refused to let Jeff Merkley’s amendment–which would have called for summaries in some cases–pass. For starters, it would have shortened the time frame (two years have already passed since Lisa Monaco assured Senators she’d declassify opinions if only they confirmed her) it’d take to ask the Courts for a summary and get it. Additionally, it would have required the government admit if they could not, would not, declassify any teensy bit of the opinions on this secret law. That is, they’d have to finally admit there is secret law, which they’re denying right now.

I’m officially predicting that all this will be wrapped up a few short months after after the PATRIOT Act gets extended in 2015, forestalling the moment yet again when we confirm that the government is conducting massive surveillance on innocent Americans.

But then there’s the claim that they cannot summarize this themselves (suggesting, as I said, that there was no way DOJ could write a summary that the FISC would buy off on).

Frankly, I don’t buy that. Even John Yoo’s November 2, 2001 opinion authorizing the illegal wiretap program–a 21 page document redacted down to 183 words–communicates the main gist of the opinion:

FISA only provides a safe harbor for electronic surveillance and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

FISA purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence.

[snip]

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.

[snip\

Thus, unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

…we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence to defend the nation from direct attacks.

[snip]

…intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

[snip]

…no governmental interest is more compelling than the security of the Nation.” Haig v. Agee. 453 US 280. 307 (1981)

Of course, in this case, the government is hiding the current interpretation of law. So rather than displaying the ugly shreds of our Constitution as it existed when Dick Cheney roamed the halls (though some of these opinions were written under the Bush Administration), the government is faced with revealing the ugly shreds of our Constitution as it exists. And 183 words, even in an opinion written by FISC, is probably sufficient to get some complacent people rather worried.

Then there’s the matter I noted the other day. In Merkley’s speech supporting his amendment, he focused on how Section 215 plays–apparently in conjunction with FAA (that’s why the government doesn’t want FAA debated at the same time as Section 215; because we might get “confused”)–particularly the passage that allows the government to get business records relevant to an investigation.

Let me show an example of a passage. Here is a passage about what information can be collected: “ ….. reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),” and so on.

Let me stress these words: “relevant to an authorized investigation.”

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what “relevant to an authorized investigation” means or what “tangible things” means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

As I noted, Merkley professes not to know whether the “relevant to” provision of Section 215 has been used to gut probable cause in a way far more thorough than even John Yoo accomplished. But most of the co-sponsors of his Amendment do know.

And while I still think you’d be able to summarize even that, if the thing they’re trying to hide is that Section 215 has been grafted onto FAA so as to permit the government to access any tangible thing from anyone for whatever shoddy reason the government invents, I do get why it’d be hard to summarize that and still hide the fact that that’s what is now going on.

I guess they think it’d be confusing for us if their claims that there isn’t a massive program of government surveillance were proven to be utterly false.

Blabby Brennan to Replace Publicity Petraeus at CIA?

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“He is a horrendously political animal, and there will be a tendency to politicize information to put the best spin for the administration on it.”

–An anonymous CIA officer, speaking of John Brennan, with whom he worked at CIA during the Bush Administration

As predicted, John Brennan’s past support for torture has generated only limited concern from John McCain and Dianne Feinstein, but no real threat that it will hold up his confirmation. No one, as far as I know, seems to care that Brennan was involved in Dick Cheney’s illegal wiretap program, nor that he decided to give NCTC access to the federal data of completely innocent Americans, nor his “intimate familiarity” with the genesis of NYPD’s abusive domestic spying program. And while there has been much discussion of his role in drone strikes–much of it credulously insisting Brennan wants to put order to drone strikes with an effort stalled after Mitt lost–even drone skeptics like Ron Wyden have not yet raised it as a confirmation issue.

John Cornyn’s warning that Brennan won’t be approved until the leak investigations finish is much more interesting, however.

“John Brennan has not been absolved of responsibility for the slew of high-level security leaks that have characterized this White House,” Sen. John Cornyn (R-Texas) told POLITICO in a statement Monday. “This investigation needs to be resolved before his nomination can move forward.”

An aide to Sen. John McCain (R-Ariz.), speaking on condition of anonymity, said: “The questions about national security leaks by this administration have not yet been answered, and that will obviously be an issue as the Senate considers his nomination.”

Sure, to some degree Cornyn’s professed concern just reflects Cornyn being not only a partisan asshole, but a hypocrite about leaks.

But there seems good reason to inquire into what John Brennan’s sieve-like qualities will have on national security.

Consider his role in the exposure of the sources and methods used to set up a sting entrapping AQAP in an UndieBomb plot and with it sustaining the claim that AQAP wants to–and has the ability to–strike in the US. After the AP revealed there had been a plot (having held off at the request of the Administration), Brennan called his predecessors to spin the plot and in doing so made it clear that it was a sting, thereby exposing the British passport holder who set up the sting as an infiltrator.

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.

A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the ClintonWhite House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”

A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC’s Nightline that there was a Western spy or double-agent in on the plot: “The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn’t going to let it happen.”

The White House made it clear they would have revealed the plot anyway. Indeed, they did so in an analogous situation two years earlier. And our Saudi and Yemeni partners tend to boast about such things anyway. Much of the outrage over this so-called leak served only to beat up on the AP that had exposed the aforementioned abusive NYPD program.

Nevertheless, revelations about how Brennan briefs his predecessors who then run to their respective networks to officially leak this information show that he is an enthusiastic participant in the asymmetric spread of information in DC.

But hey. We knew that.

Nevertheless, the asymmetry is key. As I’ve noted, Brennan has an interesting closeness to half of the Administration’s whistleblower prosecutions. Yet one of those prosecuted whistleblowers–John Kiriakou, whose book someone who looks exactly like Brennan helped to get published—suggested today that Brennan is “the most prolific leaker in this administration.” A former senior Administration official seems to agree.

“It’s not on people’s radar, but this could be an issue,” said the former administration official, who asked not to be named discussing a potential downside of Brennan’s nomination. “He’s a guy who comes across as a strong, silent type who never speaks, [but] he actually does a lot of talking both internally with the president and externally with select, influential reporters. … I’m not saying the guy seeks it, but [other White House officials] view him as the most credible internal mouthpiece on national security matters.”

Which brings me back to this point. It’s not just that Brennan exposes sources and methods while seemingly supporting the unprecedented prosecution of whistleblowers who do the same. But it’s also that he does so for political gain. This is not–contra Brennan’s many boosters–transparency. It’s about enforcing an official version of events that often contradicts markedly from the truth.

Mind you, it is not at all unprecedented to have a skilled leaker madly spinning Administration policies rather than leveling with the American people at CIA. That doesn’t make it good for national security, but it happens a lot.

All that said, one of yesterday’s jokes is that Brennan–a man with ties to torture and illegal wiretapping–is replacing a guy purportedly ousted for a consensual affair. There are reasons why such affairs on the part of the Director of CIA raise more concerns in the nuclear era than they might have in the past. And that nuclear tie may be the related complications cited to explain why Petraeus had to resign.

Or maybe not. In Rajiv Chandrasekaran’s recent report on Petraeus’ habit of giving the pundits who advanced his career Top Secret clearance and access to materials that might be used to oppose Administration policies, he suggested this practice was receiving new scrutiny at DOD, the kind of scrutiny that might necessitate retirement.

John Cornyn is largely being an asshole in raising Brennan’s blabby mouth in respect to his nomination. But in doing so, he may just expose the deep hypocrisy underlying this Administration’s asymmetric leaks. That may be the price Cornyn demands to rubberstamp Brennan’s CIA appointment.

Al-Haramain Will Not Appeal 9th Circuit Decision Immunizing Illegal Wiretapping

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The single best chance to hold the government accountable for its illegal wiretapping, the al-Haramain suit, is over.

Our goal was for the judiciary to rule that the president may not disregard an act of Congress in the name of national security.

[snip]

Ironically, although we had sought a judicial pronouncement that the president may not violate FISA, the 9th Circuit instead proclaimed that he can get away with it.

[snip]

We have decided not to challenge the 9th Circuit’s ruling in the U.S. Supreme Court. We feel that, given the Supreme Court’s current ideological tilt, it is better to leave other courts free to disagree with the 9th Circuit than to risk a bad ruling by the current Supreme Court.

The Al-Haramain case is over. Perhaps someday another court will adjudicate the scope of the president’s domestic wiretapping powers in a national climate less charged by post-9/11 fears.

With these words, Jon Eisenberg, the lawyer representing al-Haramain in its suit against the government for violating FISA, publicly described his decision not to appeal the 9th Circuit’s finding that the government is immune from penalties for violating FISA.

The resolution of the al-Haramain case has been little noted in the halls of DC. But it really underlies the entire debate about the FISA Amendments Act extension.

Because as shitty as the law just renewed is, the government also now knows that they don’t even have to follow that law. They are effectively immune from the law.

Company that Engaged in Criminal Wiretapping Hails Obama’s Wiretap Extension

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The Wall Street Journal–owned by the same guy whose company and son are in trouble in the UK for criminally wiretapping those they wanted to collect information on–has found something to love in the Obama Administration.

Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

In addition to applauding Obama’s “fairly ruthless antiterror prosecut[ions] and unapologetic assert[ions] of Presidential powers,” the WSJ revels in this opportunity to mock those who thought illegal wiretapping was wrong.

This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic. Democrats spent years pretending that Mr. Bush’s eavesdropping program was “wrong” and “destructive,” as Attorney General Eric Holder put it at the time, lamenting that “I never thought I would see a President act in direct defiance of federal law.”

Maybe this mutual love of abusive wiretapping is why–as Elliot Spitzer has pointed out–DOJ has thus far failed to pursue News Corp under Foreign Corrupt Practices Act.

And finally, where is the inept U.S. Department of Justice in all this?

The DOJ has brought many irrelevant and tiny cases against companies for violating the Foreign Corrupt Practices Act, which makes it illegal to bribe either individuals or government officials, even in a company’s overseas operations. The DOJ loves to use the statute to show just how tough it is.

Yet now they have the most important case sitting right there in front of them. It’s easy. Even a rookie could field this one.

But what are they doing? It’s not clear.

If they fail to make this case against News Corp., Eric Holder is a failure as attorney general.

After all, Eric Holder’s DOJ successfully fought to give legal sanction to Cheney’s illegal wiretapping. It would look rather silly, after having extended warrantless wiretapping past the end of the Obama Administration, for them to prosecute Rupert Murdoch for doing the same thing Cheney did.