CIA General Counsel: If the President Authorizes It, It’s Legal

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I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

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Data Mining Adoptive Parents along with Suspected Terrorists

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I’m a sucker for groups of adoptive kids. Like the time when a group of Michigan families with adopted Ethiopian kids had a rambunctious reunion at my favorite Ethiopian restaurant, with the owner catering to the kids like a grandparent. Or the time I shared a restaurant in Guangzhou with a bunch of French families who had just picked up their baby daughters; they somehow expected these girls who had lived in Chinese orphanages to immediately understand how to act like proper French kids.

There’s a lot that can be abusive in international adoptions, but when I see joyful gatherings like these, I’m awestruck by the faith such parents have in our common humanity.

Which is why I’ve been obsessing by one of the implications of this post. As I noted, DHS’s Inspector General helpfully explained that among all the other people in DHS’ IDENT database are the American citizens who had adopted internationally.

Individuals with fingerprints in IDENT include persons with an immigration history, such as aliens who have been removed but have reentered the country, immigration visa applicants, legal permanent residents, naturalized citizens, and some U.S. citizens.
IDENT includes two categories of U.S. citizens:

  • Citizens who have adopted a child from abroad (which involves U.S. Citizenship and Immigration Services), participated in a trusted traveler program, or may have been fingerprinted by immigration officials for smuggling aliens or drugs across U.S. borders;
  • Individuals who were not citizens at the time that their fingerprints were collected, but subsequently became citizens through naturalization, legal permanent residency, or immigration.[my emphasis]

Now, we can be pretty sure that when NCTC decided it needed to acquire US agency databases and data mine them with their existing terrorism databases, complete with the US person data they included, the IDENT database–the primary purpose of which is to track people who’ve come through the immigration system–was one of the first databases they went after.

Which is another way of saying the US persons in the IDENT database should assume they’ll also be in NCTC’s databases for five years. Including those parents who adopted children from China or Ethiopia or Guatemala or Romania.

“Well, if they’ve done nothing wrong they don’t have anything to be worried about.”

Perhaps. Except that the kind of people who adopt kids internationally may also tend to have reason for a significant number of international connections, whether because of religious faith, an effort to establish some tie to their child’s native country, or a comfort with international travel.

There are a lot of people whose biometric data shouldn’t be mined along with a bunch of terrorist suspects. At the top of that list, though, are families whose primary interaction with Bureau of Customs and Immigration Services entailed adopting a baby from another country.

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Gareth Williams Inquest to be Secret Tribunal

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I’ve been blogging about British efforts to expands the use of closed material proceedings so it won’t reveal embarrassing details about its cooperation in American torture in the future.

Which makes it interesting that Britain’s Foreign Secretary, William Hague, has ordered that the inquest into the death of GCHQ scientist Gareth Williams will be secret. Williams is the GCHQ-on-loan-to-MI6 sometimes-on-loan-to-NSA scientist whose body was found in a gym duffel in his flat a few years ago.

All sorts of cover stories have been leaked about his death: that it was some sort of gay bondage gone bad, that the Russian mafia took him out.

I’ve been most intrigued by the detail that Williams was working with NSA at the time when the US blew up the British planes investigation.

Whatever the reason, we’re not likely to find out, at least not immediately, because of the secrecy surrounding the inquest.

I’m not surprised the Brits don’t want their spy stories told in public, mind you.

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Is Obama Threatening the “Special Relationship” to Hide Torture?

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I noted, when David Cameron was in town, that his Justice Secretary, Kenneth Clarke, was pushing to expand “closed material proceedings” as a way to better protect secret information. The effort was a response, Clarke claimed, to courts forcing the government to release information about Binyam Mohamed’s torture, which ended up revealing the US was using some torture techniques before the Bybee Memo purportedly approved torture.

Now, Cameron’s government is ratcheting up the fear-mongering, claiming that the US withheld information about a terrorist threat 18 months ago because of the the Mohamed release.

The CIA warned MI6 that al-Qaeda was planning an attack 18 months ago, but withheld detailed information because of concerns it would be released by British courts.

British intelligence agencies were subsequently forced to carry out their own investigations, according to Whitehall sources.

Several potential terrorists were identified with links to a wider European plot, but it is still not known whether the British authorities have uncovered the full extent of the threat.

I flew through London 18 months ago during what I suspect was this terror threat. It was the kind of threat where one airline–American–had rolled out the full heightened security theater, but another–Delta–had nothing special, both on the same day.

That kind of terrorist threat.

If it is true the CIA is withholding such information (I’m not saying I buy that the US withheld information from a serious threat), then consider what this means. Back in August 2006, the US (specifically, Dick Cheney and Jose Rodriguez) betrayed the “Special Relationship” by asking the Pakistanis to arrest one of the plotters in the liquid planes plot, which in turn forced the Brits to roll up their own investigation before they had solidified the case against the plotters. Several of the plotters had to be tried two times to get a conviction. The Bush Administration did all this as an election stunt.

And yet we’re the ones purportedly complaining about information sharing?

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Who Brought Key Al Qaeda Forums Down?

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A number of al Qaeda’s online jihadist forums have gone down for extended periods.

Al-Qaeda’s main Internet forums have been offline for more than a week in what experts say is the longest sustained outage of the Web sites since they began operating eight years ago.

No one has publicly asserted responsibility for disabling the sites, but the breadth and the duration of the outages have prompted some experts to conclude that the forums have been taken down in a cyberattack — launched perhaps by a government, a government-backed organization or a hackers’ group.

US Cyber Command denied to the WaPo that it–or other US government agencies–were responsible.

There is still some uncertainty about whether a cyberattack caused the recent outages, and skeptics note that some prominent al-Qaeda forums remain online. U.S. government agencies, including U.S. Cyber Command, had no role in the outages, according to officials who would speak about the issue only on the condition of anonymity.

Still, Will McCants, a former State Department

Whereas government sources CNN contacted (Barbara Starr, CNN’s resident DOD mouthpiece, is bylined) declined to comment.

No entity has claimed responsibility and U.S. officials contacted by CNN would not comment.

Ssort of.

A U.S. official said the United States has been aware of the al Qaeda websites being down and finds it “of interest to us.”

But the WaPo also describes our government using foreign government assistance in the past.

In the past, U.S. officials have also relied on diplomatic channels to dismantle extremist sites that are viewed as a threat to American personnel or interests, according to former U.S. officials familiar with the episodes.

The approach has worked in more than a dozen cases and in each instance was backed by at least the implicit threat of a cyberattack by the U.S. military if the Web site’s host country failed to act, the officials said. The countries that cooperated were in Europe, the Persian Gulf and the Pacific, they said.

“We’ve never had a country refuse us,” said James Cartwright, the former vice chairman of the Joint Chiefs of Staff, speaking at a U.S. China Economic and Security Review Commission hearing at George Mason University last week. “But if they did, then you can invoke the right of self-defense.”

It reports the sites in question are hosted in Malaysia, Costa Rica and Gaza.

Meanwhile, Will McCants suggests to CNN that the outage may be related to Spain’s arrest of alleged Al Qaeda propagandist Mudhar Hussein Almalki

Zelin speculated the outage could be tied to the recent arrest of Mudhar Hussein Almalki in Spain. Almalki maintained the Ansar al-Mujahidin Forum, according to a Spanish police document provided to CNN. The police document alleges Almalki ran the site and oversaw who could access it, spread information to jihadists and maintained private chat rooms to “carry out meetings with others to give out instructions,” according to a translation of the document.

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Big Brother Works Both Sides of the Atlantic

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I was rather surprised that there seemed to be more outrage Sunday about the UK’s announced plan to roll out the same ability to monitor everyone’s online activity that the US set up after 9/11 then over Eric Lichtblau’s report–based on the ACLU’s FOIA efforts–revealing that cops all over the country are using our smart phones to spy on us.

At least from the published reports, it sounds like the Brits want to be able to do through GCHQ what NSA and FBI have been doing with hoovered telecom records for years.

A new law – which may be announced in the forthcoming Queen’s Speech in May – would not allow GCHQ to access the content of emails, calls or messages without a warrant.

But it would enable intelligence officers to identify who an individual or group is in contact with, how often and for how long. They would also be able to see which websites someone had visited.

[snip]

“What this is talking about doing is not focusing on terrorists or criminals, it’s absolutely everybody’s emails, phone calls, web access…” he told the BBC.

“All that’s got to be recorded for two years and the government will be able to get at it with no by your leave from anybody.”

He said that until now anyone wishing to monitor communications had been required to gain permission from a magistrate.

Plus, such plans will likely face more of a hurdle in Parliament than such schemes to expand surveillance face in Congress.

Meanwhile, the materials collected from all over the country via ACLU’s state affiliates show that local police are using some of the same approaches–things like communities of interest–that our massive data collection supports.

And as ACLU’s summary makes clear that not just the Feds using Secret PATRIOT, but local cops, are using cell phones to track people with no warrants.

Most law enforcement agencies do not obtain a warrant to track cell phones, but some do, and the legal standards used vary widely. Some police departments protect privacy by obtaining a warrant based upon probable cause when tracking cell phones. For example, police in the County of Hawaii, Wichita, and Lexington, Ky. demonstrate probable cause and obtain a warrant when tracking cell phones. If these police departments can protect both public safety and privacy by meeting the warrant and probable cause requirements, then surely other agencies can as well.

Unfortunately, other departments do not always demonstrate probable cause and obtain a warrant when tracking cell phones. For example, police in Lincoln, Neb. obtain even GPS location data, which is more precise than cell tower location information, on telephones without demonstrating probable cause. Police in Wilson County, N.C. obtain historical cell tracking data where it is “relevant and material” to an ongoing investigation, a standard lower than probable cause.

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SCOTUS Limits Privacy Act Just as NCTC Expands Access to US Person Data

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Well, this is rather inauspicious timing.

The conservatives on SCOTUS have sharply limited the teeth of the Privacy Act–limiting damages to out-of-pocket damages.

The Supreme Court has dealt privacy advocates a huge setback. By a 5-3 majority, the court ruled that people who sue the government for invading their privacy can only recover out-of-pocket damages. And whistle-blower lawyers say that leaves victims who suffer emotional trouble and smeared reputations with few if any options.

Justice Samuel Alito and all four of his conservative colleagues turned back a challenge from a pilot named Stan Cooper. (Justice Elena Kagan did not participate in the case.)

Cooper said the Social Security Administration, which was sending him disability benefits, had improperly shared his HIV status with transportation officials.

In 1974, while the abuses of Watergate were fresh in people’s minds, Congress made that kind of unauthorized information-sharing illegal under the Privacy Act. The law said the U.S. had to pay actual damages to victims.

But in Wednesday’s ruling, Alito said actual damages represent monetary harm, not mental or emotional distress.

That’s absurd, according to the dissent by Justice Sonia Sotomayor. Sotomayor said that means people who suffer severe emotional distress can’t get any money — but people with minor out-of-pocket expenses can.

The whole point of the Privacy Act was to impose some kind of real penalty on the government for using the damage it collects on you in a way that ends up hurting you. Without pain or suffering damages, it will make it very difficult for aggrieved people to find legal representation to sue the government for violations. And without pain and suffering damages, the penalties would generally be so small, in any case, as to make violating your privacy the cost of doing business.

And of course, this happens just as the government decided to make its agency databases accessible to the National Counterterrorism Center for data mining to find terrorists. The Privacy Act would have been one of the few limits on what the government can do with this data. For example, the Guidelines on this new access warns that “All disseminations under these Guidelines must be … permissible under the Privacy Act,” which would normally limit dissemination (in this context) to law enforcement purposes. But now that Alito has gutted the protections of the Privacy Act, there is less to prevent some gung ho counterterrorism professional to leak information about who looks like a terrorist when you data mine their personal data. Or to use the now-collated information (the Privacy Act protections allowing you to see your own data reside with the originator here, which I suspect will mean you don’t get to see what your data gets collated with) for more personal, nefarious purpose.

These two events are unrelated. SCOTUS didn’t do this because of the government’s new power grab at NCTC. But SCOTUS’ decision does make that power grab still more dangerous.

Note: For those of you interested in these issues, I urge you to stop by FDL’s Book Salon on Saturday at 5. Tim Weiner will speak about his generally very good book, Enemies. The salon will be particularly interesting, though, because the ACLU’s Mike German will host. Not only does German’s FBI background make him an ideal reviewer of this history of the FBI’s abuses, but he’s probably the best person to address the book’s most glaring fault: inaccurate and wildly over-optimistic treatment of the FBI’s Domestic Investigations and Operations Guide.

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What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
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Abdulelah Haider Shaye and Anwar al-Awlaki’s Emails

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Al-Jazeera did another long piece on the imprisonment of Abdulelah Haider Shaye, whose story Jeremy Scahill first covered here. There are two details worth note. First, just after 15:40, AJE describes the White House’s non-denial denial of their involvement with Shaye’s continued imprisonment.

Well, we got in touch with the White House on this last week, and this is what we were told: “The President’s comments have absolutely nothing to do with Shaye’s reporting or his criticism of Yemen or the United States. A Yemeni court, not a US court, convicted him.”

It’s an odd comment because if, as alleged, Shaye’s imprisonment has something to do with being an AQAP propagandist, then it would have to do with his journalism. Furthermore, given the language the White House itself included in its readout of the February 2, 2011 conversation between President Obama and Ali Abdullah Saleh…

President Obama called President Ali Abdullah Saleh of Yemen on February 2 to welcome the significant reform measures that President Saleh had announced earlier that day, and to stress that President Saleh now needs to follow-up his pledge with concrete actions.  President Obama asked that Yemeni security forces show restraint and refrain from violence against Yemeni demonstrators who are exercising their right to free association, assembly, and speech.  The President also told President Saleh that it is imperative that Yemen take forceful action against Al Qaida in the Arabian Peninsula (AQAP) to protect innocent lives in Yemen as well as abroad.  Finally, President Obama expressed concern over the release of Abd-Ilah al-Shai, who had been sentenced to five years in prison for his association with AQAP.  President Saleh thanked the President for U.S. support and committed to continuing and strengthening relations with the United States. [my emphasis]

… It’s quite clear that regardless of whose courts convicted Shaye, Obama’s comments played a key role in his continued imprisonment.

The irony? In the same conversation Obama pressured Saleh to show restraint with Yemenis exercising their right to speech. So now the White House is issuing non-denial denials about a conversation in which they criticized Saleh for his violent repression by attributing responsibility to Yemen’s legal system?

Nevertheless, I find it significant that, rather than offer some explanation for Obama’s pressure to keep Shaye imprisoned, the White House is now dodging the issue.

Particularly given this detail Scahill reveals just after 20:00.

What I’m going to say right now about it is the extent of what I can say about any specific media organization. My understanding from sources within one of those media organizations [ABC, WaPo, and NYT] that you cited, and a major American media organization, was that they were approached by the US government earlier on, before Shaye was actually locked up and put in prison and sentenced by this court, that a major US media organization that had done work with him was approached and told that they should stop working with him, suggesting that his relationship to Al Qaeda was more than just journalist source relationship and that organization stopped working with Abdulelah Haider. To my knowledge, none of those organizations have take an editorial stance calling for his release or even or even condemning the sham nature of his trial.

That is, presumably around the time ABC and WaPo and NYT were all relying on Shaye to get reporting from Yemen, the government approached at least one of them and told them to stop, which they did.

I find that particularly interesting given some reporting I reviewed yesterday while working on posts assessing whether the new NCTC data-sharing guidelines would have prevented the Nidal Hasan and Undiebomber attacks.

On November 16, 2009, 11 days after Nidal Hasan’s attack and about a week after Pete Hoekstra revealed the email exchanges, the WaPo published a story based on a Shaye interview with Anwar al-Awlaki which provides far more information about the emails Awlaki exchanged with Hasan before the attack.

Shaea allowed a Post reporter to view a video recording of a man who closely resembles pictures of Aulaqi sitting in front of his laptop computer reading the e-mails, and to hear an audiotape in which a man, who like Aulaqi speaks English with an American accent, discusses his e-mail correspondence with Hasan.

The quotes in this article are based on Shaea’s handwritten notes. Shaea said he was allowed to review the e-mails between Hasan and Aulaqi, but they were not provided to The Post.

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Michael Leiter Went Skiing … And All We Got Were Vast Expansions of Data-Sharing and No T-Shirt

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In its short summary of the new NCTC data sharing guidelines, Lawfare said this:

The White House has passed new ”Guidelines for Access, Retention, Use, and Dissemination. . . of Information in Datasets Containing Non-Terrorism Information.” Read the new guidelines here. The Times tells us that the National Counterterrorism Center can now ”retain private information about Americans when there is no suspicion that they are tied to terrorism” for 5 years, instead of the previous 6 months. You can thank Umar Farouk Abdulmutallab for that. The Wall Street Journal and the Post also have the story. [my emphasis]

Actually, no.

I guess you can’t blame Michael Leiter for going skiing right after the UndieBomber attack. But when the report on the 14 failures that led us to miss the attack was released, it was pretty clear the National Counterterrorism Center–Leiter’s unit–deserved most of the blame.

Leiter wasn’t fired. He served over a year longer.

We didn’t do the most basic thing we could have done in response to the UndieBomber attack–hold those who failed accountable.

Instead, we’re now rolling back Americans’ privacy yet again, because those in charge would prefer to trade citizens’ civil liberties for actual accountability for failure.

It’s easy for folks like Lawfare to blame all this on the terrorist and none of it on the people who failed to defend against terrorism. And ultimately, that means the rest of us pay because Michael Leither chose to ski instead of ensuring we found terrorists.

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