Leon Panetta Begs and Threatens for Consensus Rather than Oversight

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Remember when the Obama Administration appealed to a "fundamental compact" between Congress and the Executive Branch when arguing the intelligence community didn’t need more oversight? ("Fundamental compact, my ass," I thought was the best response.)

Well, Leon Panetta’s out with a similar appeal to inflated, but totally bogus, language in an attempt to avoid increased Congressional oversight. This time, he appeals to "consensus" as the core of congressional oversight.

In our democracy, effective congressional oversight of intelligence is important, but it depends as much on consensus as it does on secrecy. We need broad agreement between the executive and legislative branches on what our intelligence organizations do and why. For much of our history, we have had that. Over the past eight years, on specific issues — including the detention and interrogation of terrorists — the consensus deteriorated. That contributed to an atmosphere of declining trust, growing frustration and more frequent leaks of properly classified information. 

[snip]

I recognize that there will always be tension in oversight relationships, but there are also shared responsibilities. Those include protecting the classified information that shapes our conversations. Together, the CIA and Congress must find a balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused on the job of defending America. 

The last eight years have proven that Congress is utterly impotent to stop covert actions the Executive Branch wants to do. Congress’ unsuccessful attempt to stop the data-mining of American citizens by defunding it proves that point. And other tactics used by the Bush Administration–such as funding covert activities in supplemental appropriations or having JSOC carry out those activities instead of CIA, both to completely side-step the intelligence committees’ oversight–further proves Congress’ utter impotence to influence Executive Branch activities.

So when Panetta appeals to consensus as a cornerstone of oversight, when he says "we need broad agreement," he’s basically saying, "Congress must agree with the Executive Branch." "Deteriorating consensus," in this context, is just a pretty way of saying "blowing off Congress" in the face of opposition. When Panetta suggests there needs to be a "balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused," he’s basically arguing that oversight must stop short of actually criticizing CIA, however merited.

Read more →

A Fusion Center Before Its Time

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The other day, I described how peace groups in Washington had gotten proof that a spy from a DOD facility had infiltrated their groups. A local paper and Jeff Stein have more on the story–including (from the paper) these statements that the infiltration probably violated posse comitatus.

A Yale Law School faculty member and military law expert said he is disturbed by allegations that Fort Lewis employed a civilian who spied on an Olympia-based anti-war organization.

Eugene R. Fidell, a former judge advocate for the Coast Guard and the president of the National Institute of Military Justice, said such a practice appeared to violate the Posse Comitatus Act, a federal law that prohibits the use of the Army for conventional law enforcement activities against civilians.

[snip]

Another legal expert, Stanford Law School lecturer Steven Weiner, said there are exceptions to the Posse Comitatus Act that allow the secretary of defense to authorize the Army to pass on information to local law enforcement agencies when it is gathered through normal military training and operations. Weiner said that does not sound like what happened in Olympia. Weiner, an expert in national security law, added that for the military to use “an employee as a covert operative … is probably over the line.”

“The basic rule is the military’s not supposed to be engaged in law enforcement activities,” he said.

Weiner said he doubts that someone high up in the Army chain of command would authorize spying on OlyPMR. When told about OlyPMR’s activities, he said it sounded as though the group “is not actively imperiling national security” in a manner that would justify violating Posse Comitatus.

I’ll come back to this story as it develops. But in the meantime, I wanted to draw attention to a different case–happening in San Diego–in which a number of Marines and Marine reservists are being tried for leaking terrorism-related information to the Los Angeles police departments and (possibly) private companies.

On June 26, the military charged Marine reserve Colonel Larry Richards with stealing classified documents. Those charges come after the military has gotten guilty pleas from Eric Froboese and Gary Maziarz, two of the guys whom Richards had recruited to get classified intelligence documents from Camp Pendleton and the US Northern Command and give to him to use in his role in Los Angeles’ anti-terrorism units.

Maziarz testified that Richards recruited him in 2004 as his successor for taking classified documents from Camp Pendleton. Read more →

CIFA Lives?

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Remember CIFA? That’s the military’s domestic spying program that used to spy on Quakers and bloggers like Jesus’ General. In April 2008, the Pentagon announced it was shutting down the program.

Perhaps unsurprisingly, it sounds like they didn’t shut down the program.

A group of peace activists have confirmed that spies from a defense program have infiltrated their group. (h/t EC)

Peace activists in Washington state have revealed an informant posing as an anarchist has spied on them while working under the US military. The activists are members of the group Students for a Democratic Society and Port Militarization Resistance, which protests military shipments bound for Iraq and Afghanistan.

Before his true identity was revealed, the informant was known as “John Jacob,” an active member of antiwar groups in the towns of Olympia and Tacoma. But using documents obtained under a Freedom of Information Act request, the activists learned that “John Jacob” is in fact John Towery, a member of the Force Protection Service at the nearby Fort Lewis military base.

The activists claim Towery has admitted to them he shared information with an intelligence network that stretches from local and state police to several federal agencies, to the US military. They also say he confirmed the existence of other government spies but wouldn’t reveal their identity.

Read the whole Democracy Now piece–it descrbes that Towery, the spy, got himself appointed a Listserv moderator with access to all the email subscribers of this group.

Panetta’s Parsings

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As bmaz reported yesterday, in addition to the five current and former CIA officers whom Judge Lamberth has said were invoking state secrets to protect something that wasn’t secret anymore, Lamberth also criticized a declaration he received from Leon Panetta invoking state secrets anew. He describes Panetta’s declaration this way:

Director Panetta’s unclassified declaration appears to significantly conflict with his classified declaration. His unclassified declaration states that: "Plaintiff has provided a declaration in which he stated that the alleged wiretap at issue in this case was allegedly the result of an eavesdropping transmitter placed under the coffee table located in his residence in Burma… To the extent that this is his allegation, he is permitted to proceed with discovery to determine whether such a transmitter was used." (Panetta Unclassified Decl at 9) Panetta later states, however, that the plaintiff cannot inquire into information about the "U.S. Government’s capabilities to conduct electronic surveillance." id. If a method of intelligence is unclassified and publicly available, it is not immediately apparent why it suddenly becomes a state secret to even argue that it could be used by the U.S. Government. Moveover, the plaintiff makes a credible argument not only that the device is publicly known, but that the fact that the government uses this type of device is publicly available, as this type of device is on display at the Spy Museum in Washington, D.C. Indeed, Panetta’s classified, ex parte declaration significantly conflicts with the unclassified declaration and appears to acknowledge that the plaintiff can present evidence as to the coffee table eavesdropping transmitter, even if it is used by the U.S. Government. Panetta states: "Plaintiff has alleged that the defendants used an eavesdropping transmitter placed under the coffee table located in his residence in Burma. He has also stated that these types of transmitters are publicly available and on display at the Spy Museum in Washington, D.C. To the extent that the theory of his case is that the defendants conducted the alleged surveillance using purely unclassified, publicly available methods, I do not assert the state secrets or statutory privileges. To the extent Plaintiff’s discovery attempts to sweep more broadly, and to inquire about other intelligence capabilities … such discovery cannot proceed …." (Panetta Classified Decl. 21) Read more →

CIA Fraud In State Secrets Assertions

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There is a new case causing a stir on the state secrets front today. The case is Horn v. Huddle et. al, is filed in the DC District, and has been quietly going on behind the scenes since 1994. From Del Wilber at the Washington Post:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Judge Royce C. Lamberth wrote that he was also considering sanctions against five current and former agency lawyers and officials, including former director George Tenet, for withholding key information about the operative’s covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history."

Here is the ruling issued by Judge Royce Lamberth today that set off the firestorm.

There is a lot of great background on the case, and events behind it, in an old post from Bill Conroy at Narco News in 2004:

Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.

After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.

After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year [2004] after crucial evidence in the case was suppressed on national security grounds.

…

What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.

Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.

“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and Read more →

Bill Leonard: Congress Is Responsible for CIA Not Informing Them

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Bill Leonard makes an important point about the HPSCI investigation into whether or not the CIA is adequately informing Congress.

No matter the seriousness of the challenge, some politicians, members of the media, pundits, et. al. insist on reducing issues of grave importance to a "left vs. right" or "tough vs. soft on terrorism" didacticism. This week’s announcement by the House Permanent Select Committee on Intelligence (HPSCI) that it has opened an investigation into whether the Bush administration violated the law by not notifying Congress of certain classified intelligence programs, to include an alleged program to assassinate key al-Qaeda leaders, is the latest example.

In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That’s why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.

What is relevant is that much of the controversy is of Congress’ own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."

Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” Read more →

Silvestre Reyes Announces Investigation into Violations of National Security Act

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Reyes announces:

After careful consideration and consultation with the Ranking Minority Member and other members of the Committee, the House Permanent Select Committee on Intelligence will conduct an investigation into possible violations of federal law, including the National Security Act of 1947.

This investigation will focus on the core issue of how the congressional intelligence committees and Congress are kept fully and currently informed. To this end, the investigation will examine several issues, including the program discussed during Director Panetta’s June 24th notification and whether there was any past decision or direction to withhold information from the Committee. 

Three points about this.

First, Reyes says he consulted with Crazy Pete Hoekstra. I look forward to seeing how Crazy Pete spins this.

That’ll be particularly interesting given the scope here. The investigation will include the reported assassination squad. But the core issue is more general–how CIA informs Congress. Which means that, in fact, this should also include whether or not CIA fullly briefed Pelosi and Goss on torture back in 2002.

Finally, the investigation will examine whether there was any "direction" to withhold information from Congress. I do hope they look at the question generally, as well as in the context of the reported assassination squad, because I suspect we’d see a pattern of Cheney instructing the Counterterrorism folks to lie to or withhold information from Congress.

Update: Reyes (and Jan Schakowsky) also announced the appointment of Adam Lurie, formerly an AUSA in NJ’s USA office, as staff director for the Investigations Subcommittee (which Schakowsky Chairs). He’ll be the lead staffer in this investigation.

The Assassination Squads: Two Points

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Siobhan Gorman reports that the secret program that Leon Panetta just revealed to Congress is an assassination squad.

A secret Central Intelligence Agency initiative terminated by Director Leon Panetta was an attempt to carry out a 2001 presidential authorization to capture or kill al Qaeda operatives, according to former intelligence officials familiar with the matter.

The precise nature of the highly classified effort isn’t clear, and the CIA won’t comment on its substance.

According to current and former government officials, the agency spent money on planning and possibly some training. It was acting on a 2001 presidential legal pronouncement, known as a finding, which authorized the CIA to pursue such efforts. The initiative hadn’t become fully operational at the time Mr. Panetta ended it.

In 2001, the CIA also examined the subject of targeted assassinations of al Qaeda leaders, according to three former intelligence officials. It appears that those discussions tapered off within six months. It isn’t clear whether they were an early part of the CIA initiative that Mr. Panetta stopped.

Two comments about this.

First, there must be something more. Aside from the near ubiquitous drone strikes, which seem to be fully acknowledged and non-controversial, there have been enough personal strikes against al Qaeda figures that appear likely to have been assassinations, that for all intents and purposes, it appears we are assassinating al Qaeda figures.

It may be, for example, that the conflict reported by Sy Hersh is the problem–that Special Ops has the mandate to kill but CIA is being dragged into those assassinations.

Senior Democrats in Congress told me that they had concerns about the possibility that their understanding of what the new operations entail differs from the White House’s. One issue has to do with a reference in the Finding, the person familiar with it recalled, to potential defensive lethal action by U.S. operatives in Iran. (In early May, the journalist Andrew Cockburn published elements of the Finding in Counterpunch, a newsletter and online magazine.)

The language was inserted into the Finding at the urging of the C.I.A., a former senior intelligence official said. The covert operations set forth in the Finding essentially run parallel to those of a secret military task force, now operating in Iran, that is under the control of JSOC. Read more →

Was Porter Goss Briefed on Things Pelosi and Harman Weren’t?

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I decided recently that it was time to re-read George Tenet’s book.

And given all the recent discussion about CIA briefings, I was a little surprised to see this paragraph pertaining to early discussions with the UK on the Iraq war.

In May of 2002, my counterpart in Great Britain, the head of MI-6, Sir Richard Dearlove, traveled to Washington along with Prime Minister Blair’s then national security advisor, David Manning, to take Washington’s temperature on Iraq. Sir Richard met with Rice, Hadley, Scooter Libby, and Congressman Porter Goss, who was then chairman of the House Intelligence Committee. (309) [my emphasis]

The paragraph almost appears to be a non-sequitur. The previous paragraphs discuss the series of meetings in 2002 that discussed the challenges of war in Iraq, without first addressing the question of "whether" war in Iraq was a good idea. Then the two paragraphs directly preceding this one pose the question, "When did you know for sure that we were going to war in Iraq"–but they focus on July 2002, not May. And the paragraphs following this one discuss the July 2002 Downing Street Memos amd Dearlove’s explanation to Tenet that he had concluded at the July 2002 meeting that war was "inevitable." (They also describe Dearlove disputing Libby’s allegations of a tie between al Qaeda and Iraq.)

So ostensibly, at least, this paragraph about May 2002 might be there for contrast–the previous meetings with which Dearlove was comparing the July 2002 meetings, after which he concluded there had been a "perceptible shift" and the war was definitely going to happen. Except that Tenet offers no details about what was said at that May 2002 meeting (note, Tenet did not apparently attend). 

And regardless of the content of the meeting, what was Porter Goss doing at a meeting with the National Security Advisor, the Deputy National Security Advisor, Cheney’s henchman, and the UK’s chief spook? Was he representing "the temperature" of those in Congress on a potential Iraq war? Or was he participating in the Administration’s early planning for that war?

I raise that question because of all the recent discussions about CIA briefings of Congress. This meeting occurred, of course, just as the Administration was implementing its torture program for Abu Zubaydah. CIA originally claimed that Bob Graham had been briefed on torture, twice, the previous month (April 2002). Read more →

Deep Thought

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Would CIA have spent the last eight years lying to Congress to hide Dick Cheney’s torture chambers if Bill Clinton had not "looked forward" but instead pursued Iran-Contra fully?