Thomas Fingar on the Politics of NIE/NIAs

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Arms Control Wonk linked to this really fascinating Thomas Fingar speech at Stanford. Fingar, you’ll recall, was one of the people at State Department’s Bureau of Intelligence and Research who judged that Iraq wasn’t getting nukes. He went on to serve as Deputy Director of National Intelligence where, in 2007, he oversaw the Iran NIE that judged Iran had stopped its active nuclear weapons program in 2003.

It’s for Fingar’s comments about the latter that ACW links to his speech–to highlight Fingar’s revelation that the White House ordered declassification of that 2007 NIE.

This example is drawn from the highly contentious 2007 National Intelligence Estimate on Iran’s Nuclear Intentions and Capabilities. It became contentious, in part, because the White House instructed the Intelligence Community to release an unclassified version of the report’s key judgments but declined to take responsibility for ordering its release.

Remember, at the time Dick Cheney and Israel were both trying to force a military response to Iran’s nuclear program … but now we learn the White House ordered the NIE be released?

Was Bush (presumably with Condi’s help) playing Cheney’s games against him, releasing classified information without telling Cheney he ordered its release? As ACW notes, Fingar explains the logic behind the release–which was designed to show that there was time, but some urgency, to resolving the Iran situation diplomatically.

In other words, the message it was intended to send to policymakers was, “You do not have a lot of time but you appear to have a diplomatic or non-military option.” Prior to the publication of this Estimate, the judgment of the Intelligence Community—and of many pundits and policymakers—was that there was no chance of deterring Iran from pursuing a nuclear weapon and that the only use of force—military options—could prevent Tehran from acquiring the bomb. The estimate also judged, and stated clearly, that Iran at a minimum had retained the option to pursue a weapon and that whether to do so would be a political decision that could be made at any time.

The entire speech is worth reading. Fingar provides an explanation for the crappy 2002 Iraq NIE.

In my experience, most policymakers ask themselves, and often ask their intelligence support team, whether the reported or projected development requires immediate action on their part or can be deferred while they work on more pressing issues or more attractive parts of their policy agendas. That is a natural and rational approach. To compensate for this, intelligence has a built-in, and on some subjects, like terrorism, a recently reinforced propensity to underscore, overstate, or “hype” the findings in order to get people to pay attention, and to fireproof the IC against charges that it failed to provide adequate warning. I note in passing that this propensity was one of the reasons for the errors in the infamous 2002 Estimate on Iraq’s weapons of mass destruction.

While the explanation is not a surprise, there are several implications of it–not least that the former Number 2 in DNI is suggesting that estimates about terrorism are overstated, with the possible result that terrorism has remained a larger policy focus than other pressing issues. (Elsewhere, in his discussion about the Global Trends 2025 report, Fingar does note that the results of terrorism will be increasingly dangerous, largely due to bioterrorism.)

Read more →

Obama DOJ Continues To FlimFlam Judge Lamberth On State Secrets

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The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out Read more →

Still in the Rendition Business?

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Observers in the UK have reported a liaison between a known rendition flight plane and British SAS helicopters.

A U.S. plane that featured in a European Parliament report into the ‘extraordinary rendition’ of terror suspects was met by two SAS helicopters in a secret operation at one of Britain’s biggest airports.

The Gulfstream jet landed at Birmingham International Airport on Friday, October 2, having flown in from an undisclosed location, and was seen by a member of staff being met minutes later by the Special Forces regiment aircraft.

Records show that the jet is owned by a subsidiary of L-3 Communications, a multi-billion-dollar defence corporation based in New York, whose clients include several American government departments, among them the Department of Homeland Security.

[snip]

The Birmingham airport employee who saw it land said helicopters that he recognised as belonging to the SAS’s support flight, 8 Flight Army Air Corps, based at Credenhill, near Hereford, arrived shortly afterwards.

The witness, who did not want to be named, added that he saw another plane, a Boeing 757 operated by COMCO, land at the airport on October 1, and that this was also met by two SAS helicopters. He said: ‘People were seen transferring between all the aircraft.’

The aircraft’s presence at Birmingham airport was also confirmed by Ron Kosys, a member of the Birmingham Aviation Enthusiasts Group, who has posted pictures on the group’s website.

The planes were parked in an area mostly used by private aircraft and situated away from the main runways.

[snip]

A Ministry of Defence source confirmed that SAS helicopters did meet the two aircraft at Birmingham airport but said their presence could be explained by an organised meeting to discuss ‘routine business between two allies’. He denied it had anything to do with rendition.

Though maybe it isn’t a rendition. As Tim Shorrock pointed out via Twitter this morning, L-3 Communications “also holds $2.4b contract for Spec Ops (assassination) Command.” So maybe we’re still in some other nasty business, along with the Brits.

Torture Tape Destruction Accountability: How It Is Done

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images5thumbnail1.thumbnail1When the government possesses videotape evidence of the torture of subjects under its dominion and control, there is only one reason to destroy the tapes. That reason is not because they possess no evidentiary value; in fact it is the direct opposite, it is because they are smoking guns. Videotapes are definitive for one of the two sides; they either prove the subject was tortured, or they prove that he was not.

Either way, videotapes of detainee treatment are of paramount evidentiary value where there are allegations of torture. It would be insane to argue that such tapes have “no possible evidentiary value”; yet that is exactly what the United States government has officially claimed as their rationale with respect to the infamous destruction of the “torture tapes” depicting the treatment of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were wantonly destroyed by the CIA in 2005, news of the destruction became public via a December 6, 2007 article in the New York Times and the DOJ specially assigned a prosecutor, John Durham, at the end of December 2007.

In the nearly two years that have elapsed since the appointment of Durham, he and the crack US Department of Justice have apparently not been able to find anything wrong with the destruction of the torture tapes. But, once again, US Federal courts have demonstrated the dithering perfidy of the Executive Branch, whether it be that of George W. Bush or, in many key Constitutional respects, his clone, Barack Obama.

From the Kansas City Star:

A Missouri prison inmate claims he was restrained for 17 hours without breaks to get a drink of water or use the bathroom.

But videotape that could prove or disprove Darrin Scott Walker’s allegations of abuse cannot be found.

And a federal judge this week concluded that prison officials intentionally destroyed the tape “in a manner indicating a desire to suppress the truth.”

U.S. District Judge Richard Dorr made the ruling in a lawsuit Walker filed alleging that he was subjected to cruel and unusual punishment.

The case is Darrin Scott Walker v. Michael Bowersox, and is filed in the Western District of Missouri (WDMO) in Case No. 05-3001-CV-S-RED. Here is a copy of Judge Dorr’s Order.

First off, it should be noted that as bad as the alleged torture of Walker is, it is nowhere near the the sadistic and egregious conduct performed upon Zubayduh and al-Nashiri. Secondly, in Walker, the court was confronted with a tape that was “lost”, maybe taped over. In the cases of Zubayduh and al-Nashiri, the US government, with malice aforethought, wantonly and intentionally physically destroyed the evidence; light years worse conduct than that in Walker. Yet Judge Dorr blistered the state for its acts in destruction of evidence:

For all of the following reasons, this Court agrees with Walker that the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth. The prison had adopted a policy that required episodes on the restraint bench be videotaped. The Defendants offered no explanation of what happened to the tape, other than the fact the tape could have been taped over, which indicates intentional destruction. The videotape was delivered to a responsible person for safekeeping by people who believed the videotape should have been kept in case of litigation. The Defendants were on notice to keep the videotape because prison officials knew Walker was considering a lawsuit the night of the incident. Lastly, the loss or taping over of the videotape was not a first time incident.

You have to wonder what Judge Dorr would think of the acts of Jose Rodriquez, the CIA and the highest levels of authority in the Executive Branch in destroying the “torture tapes” if this was his opinion in Walker. Dorr went on to hold that there should be a presumption that the destroyed tape was negative to the interests of the government in Walker and cited strong authority for said holding.

The Walker v, Bowersox case, and the strong foundation it is based on, just adds to the curiosity of the lack of ability of John Durham to find addressable conduct in the case of the torture tapes. Granted, one is a civil rights lawsuit, and one is a criminal investigation for obstruction, but the theory of culpability is the same.

Hey John Durham, where are you and what say you? Or are we just going to be peddled a bunch of Bull by Durham?

Metadata Goes Public

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I’m waiting for my flight back to MI right now, so this will be fairly brief. But a court in AZ has ruled that the metadata on public records counts as part of that public record for record requests. (h/t Rayne)

The Arizona state Supreme Court has ruled that the metadata attached to public records is itself public, and cannot be withheld in response to a public records request.

[snip]

In the Arizona case, a police officer had been demoted in 2006 after reporting “serious police misconduct” to his superiors. He suspected that the demotion was done in retaliation for his blowing the whistle on his fellow officers, so he requested and obtained copies of his performance reports from the department. Thinking that perhaps the negative performance reports had been created after the fact and then backdated, he then demanded access to the file metadata for those reports, in order to find out who had written them and when.

The department refused to grant him access to the metadata, and the matter went to court. After working its way through the court system in a series of rulings and appeals, this past January an Arizona appeals ruled that even though the reports themselves were public records, the metadata was not. It turned out that Arizona state law doesn’t actually define “public record” anywhere, so the appeals court relied on various common law definitions to determine that the metadata, as a mere byproduct of the act of producing a public record on a computer, was not a public record itself.

The case was then appealed to the Arizona state Supreme Court, which has now ruled that the metadata is, in fact, a public record just like the document that it’s attached to.

This is just one state, of course, so it’s only going to help bmaz and his fellow Zoners. But it’s an important precedent.

For one, I think it’s only fair. After all, the government is snooping in our metadata with its massive surveillance program. So it’s only fair we get access to its metadata, along with the content considered public records.

And, as Ars Tecnica notes, there have been a number of embarrassing disclosures of lobbyist influence on public documents. In our own community, recall that William Ockham used the metadata of the MaxTax health reform proposal to show that Liz Fowler, the former VP of Wellpoint, was the author of that bill. And it’s routine for lobbyists (as opposed to nominal staffers, as in Fowler’s case) to submit white papers that are adopted in their entirety (it’s something Jack Abramoff did with the Bush Department of Interior, for example). So if this standard were to become the federal standard, we’d be able to show those connections more easily.

But there’s another reason I’d love to see this become the federal standard. We’d also get to see blind carbon copies–the people secretly copied on key emails, both within and outside of government. Heck, we might even get to see what happened to a key email from the Plame leak if we had the metadata.

Too bad this only works for AZ.

CNN Helps Mike Hayden Uncork A Fine Whine

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Michael Hayden is at it again. This time it is CNN that has donated the bandwidth to his continued petty whining about the release of the OLC Torture Memos. After acknowledging that the matter is over and now simply a matter of history, Hayden, in a “Special to CNN Comment” bearing today’s date, says:

I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the “first draft” of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.

And this footnote has to do with President Obama’s decision in April to release opinions drafted by the Department of Justice that detailed the CIA’s interrogation program for high-value al Qaeda detainees.
…
Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity.

This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless “the judge was going to make me do it” argument.

As I said, this is all now a footnote, and Hellerstein’s September decision was barely remarked in the public discourse.

But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.

“Make no mistake”, just as the decision to release the torture Memos is old news, so is Hayden’s objection. He made it abundantly clear, on many records, before, during and after the Memos’ release. Why did CNN decide that giving Hayden a prime “special” opportunity to continue the same relentless petulance was a good idea? Where is the CNN “Special Comment” on the decision of the British High Court that heroically proclaimed:

It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…

Where was the CNN “Special Comment” on US Federal Judge Jeffrey White who trumpeted the public’s “right to know” what their government has done in their name in a very similar FOIA case?

Why is it that CNN has special space available for Michael Hayden, a man centrally involved in the alleged Bush war criminal misconduct, to rehash his same old self serving petty whining from months ago, but not for the current news that actually supports the rule of law in a democracy?

DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →

Judge White Thumps The DOJ On EFF FOIA Case

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Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more →

Obama DOJ Declines To Support Legality Of Bush Surveillance Program

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Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”

Plaintiffs argued Read more →

Crazy Pete Hoekstra Remembers the Separation of Powers

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Omigod did Crazy Pete just accuse DOJ officials of lying?!?!?!?!?! But I thought only Nancy Pelosi did that!!!

Actually, he’s absolutely right on this count. (h/t scribe) If DOJ officials refuse to testify under oath that the Bush Administration has already lied to Congress about, then I’d say their testimony should not be considered valid.

A House intelligence committee meeting was abruptly terminated when Justice Department officials refused to be sworn in before briefing the lawmakers.

[snip]

Justice Department spokeswoman Tracy Schmaler said Justice employees "have previously briefed committee staff on this matter and were prepared to provide a similar informal briefing to committee members."

[snip]

Rep. Peter Hoekstra, R-Mich., the top Republican on the committee, questioned Wednesday why the Justice officials refused to be sworn in. "Why is Attorney General Eric Holder afraid of having Justice Department employees be required to tell the truth?" Hoekstra said.

Obviously, Crazy Pete is a raging hypocrite on this score, having not been bothered in the least by Bush officials’ lies before Congress, to say nothing of their complete unwillingness to testify. 

But it is a fair point.