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If Only DOJ Hadn’t Burned AP’s Sources …

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The State Department announced a broad but vague warning today.

The Department of State alerts U.S. citizens to the continued potential for terrorist attacks, particularly in the Middle East and North Africa, and possibly occurring in or emanating from the Arabian Peninsula.  Current information suggests that al-Qa’ida and affiliated organizations continue to plan terrorist attacks both in the region and beyond, and that they may focus efforts to conduct attacks in the period between now and the end of August.  This Travel Alert expires on August 31, 2013.

Terrorists may elect to use a variety of means and weapons and target both official and private interests. U.S. citizens are reminded of the potential for terrorists to attack public transportation systems and other tourist infrastructure.  Terrorists have targeted and attacked subway and rail systems, as well as aviation and maritime services.  U.S. citizens should take every precaution to be aware of their surroundings and to adopt appropriate safety measures to protect themselves when traveling.

We continue to work closely with other nations on the threat from international terrorism, including from al-Qa’ida.  Information is routinely shared between the U.S. and our key partners in order to disrupt terrorist plotting, identify and take action against potential operatives, and strengthen our defenses against potential threats.

There’s a part of me that thinks this might be credible and serious.

After all, between Iraq, Pakistan, and Libya, up to 1,750 men have just escaped prison, and extremists claim responsibility for the first two prison breaks. That’s a lot of men running around who might make mischief (though you’d think it would take a bit of time to organize after the breaks).

That said, there are aspects of this that remind me of the politicized alert surrounding the April 2012 thwarting of our own plot in Yemen (which was rolled out in May 2012, well after any threat had subsided). There’s John Pistole’s ostentatious boosting of AQAP bomb-maker Ibrahim al-Asiri as “our greatest threat.”

The use of a new explosive has been previously reported, but Pistole continued with less familiar details about Underwear 2 that reflect the growing sophistication of Asiri’s sinister craftsmanship. He said the device included redundancy, by mean of two different syringes to mix liquid explosive compounds–”a double initiation system,” apparently a response to a failure of Abdulmutallab’s initiation process. In essence, Pistole said, “they made two devices.”

Finally, Pistole said, the new bomb was encased in simple household caulk in an effort to trap vapors that might alert any bomb-sniffing machines or dogs that did happen to be capable of identifying the explosive.

“So you really have a twisted genius in Yemen,” Ross observed. “That is our greatest threat,” Pistole replied. “All the intel folks here [at the forum] know that is a clear and present danger.”

Similar sensationalized reporting preceded and followed the exposure of the UndieBomb 2.0 plot last year.

There’s the increased drone activity in Yemen. Who knows! Maybe, like last year, the plot has already been rolled up and we’re just waiting to confirm one of the several recent drone strikes have taken out our target?

And there’s the apparent disparate treatment of the threat, with the US issuing a broad alert across the Middle East but with the Brits focusing thus far only on their Yemeni Embassy.

The State Department just happened to announce its support for Yemen in conjunction with President Hadi’s visit this morning, of which security aid remains the largest part, not long before this alert went out. Last year the thwarted plot was designed to coincide with the approval of signature strikes in Yemen.

Last year, the many people the US deployed to prevent a threat that had already been rolled up may have been one of the sources that revealed the threat had already been rolled up. If this is kabuki, then perhaps the same thing would happen again: some guy sent to protect flights in the Middle East might complain that it’s just show. Perhaps someone like the AP could report that the threat has been thwarted and we can go back to worrying about climate change as the most urgent threat to “the homeland.”

Except for one thing. Since last year, DOJ went positively nuclear on the AP, which exposed the kabuki last year. Without warning, DOJ obtained records of 20 AP phone lines, identifying the sources of up to 100 journalists, for at least a 2 week period. We’ve heard not one peep about DOJ prosecuting anyone in the UndieBomb 2.0 leak (especially not CIA Director John Brennan, who made the leak far worse). But DOJ did make sure sources are going to be far warier about speaking with the guys who undermined the White House kabuki last year.

So as you wonder about the seriousness of a plot that feels like a lot of the vague warnings the Bush White House used to release, remember how useful it was back when reporters were allowed to do their jobs.

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CIA Death Squads in Afghanistan to Have Fewer Bases

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Greg Miller reports in the Washington Post that the CIA will be closing several bases in Afghanistan as US military forces are withdrawn from the country. I’ve been obsessing lately about US death squads operated primarily by the CIA but also affiliated with Special Operations forces and their bases. These death squads have been an integral part of the vaunted David Petraeus COIN strategy in both Iraq and Afghanistan (and rest on the heritage of death squads funded by the US in Latin America and those run by the US in Vietnam).

Miller’s article joins a growing trend toward public acknowledgement of the paramilitary activities the CIA has carried out in Afghanistan:

The CIA has begun closing clandestine bases in Afghanistan, marking the start of a drawdown from a region that transformed the agency from an intelligence service struggling to emerge from the Cold War to a counter­terrorism force with its own prisons, paramilitary teams and armed Predator drones.

Think for just a moment about what is being admitted here. These are clandestine bases that are being closed. Those clandestine bases had their own prisons and paramilitary teams. Remember all the US denials regarding the disappearance of innocent civilians and their torture at secret prisons in both Iraq and Afghanistan? Those denials get a lot less believable with this matter-of-fact admission that clandestine bases with their own prisons and paramilitary teams are being closed. You can bet that those secret prisons did not sit empty and the CIA paramilitary teams did not sit around all day just playing cards at their secret bases.

The entire article is worthy of reading for the number of confirmations it has on CIA activities in Afghanistan. However, lest we think that Mr. Moral Rectitude is going to be cutting back on his war crime activities in Afghanistan, we have this near the end of the article:

This year, President Obama approved new counterterrorism guidelines that call for the military to take on a larger role in targeted killing operations, reducing the involvement of the CIA.

But the guidelines included carve-outs that gave the agency wide latitude to continue armed Predator flights across the border and did not ban a controversial practice known as “signature strikes,” in which the agency can launch missiles at targets based on patterns of suspicious behavior without knowing the identities of those who would be killed.

John Brennan will hang on to his “latitude” to continue signature strikes. It seems likely that he also will keep his death squads active in Afghanistan, but they will be operating out of fewer bases. International laws and treaties are just immaterial if you have enough moral rectitude.

Oh, and as a postscript, the article does confirm affiliation of CIA death squads CIA paramilitary forces with military bases (just as has been at the center of the controversy surrounding the Nerkh base in Maidan Wardak Province, where Karzai expelled US Special Forces):

Even so, a full withdrawal of U.S. troops would probably trigger a deeper retrenchment by the CIA, which has relied on U.S. and allied military installations across the country to serve as bases for agency operatives and cover for their spying operations.

It appears that Brennan and the Obama administration just don’t care any more about maintaining secrecy on their war crimes. After all, who is going to stop them?

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What will John Brennan do, Suspend his operations?

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Brennan with Torture

These with a thousand small deliberations

Protract the profit of their chilled delirium,

Excite the membrane, when the sense has cooled,

With pungent sauces, multiply variety

In a wilderness of mirrors. What will the spider do,

Suspend its operations, will the weevil

Delay?

–T.S. Eliot, Gerontian

This image — captioned, “President Barack Obama talks with CIA Director John Brennan, center, and Chief of Staff Denis McDonough in a West Wing hallway of the White House, May 10, 2013” — may officially be my new favorite official White House photograph.

I first learned of it when Katherine Hawkins pointed to this MuckRock FOIA request, which noted that the document in Brennan’s hand was titled, “The Central Intelligence Agency’s Response to The Senate Select Committee on Intelligence Study of the CIA’s Detention and Interrogation Program.”

In other words, John Brennan was speaking to Obama and the Chief of Staff about CIA’s complaints about the SSCI Torture Report on May 10. And White House photographer Pete Souza had framed the event amidst reflections and dark lighting that would make even James Jesus Angleton weep.

I’m fond of the photo, too, for what it shows.

As you recall, SSCI’s torture report was completed last December. CIA was initially supposed to respond to SSCI about the report by February 15, but that got held up, in part, because of Brennan’s confirmation, during which he appeared to avoid reading the report to avoid saying anything about it before being confirmed. Almost immediately after Brennan was confirmed, the CIA started leaking about how much they didn’t like it (even while claiming they still hadn’t finished reviewing the document). It turns out those leaks were factually incorrect. On April 11, Brennan was still stalling about the content of the review and completely ignoring any possibility it would be released publicly (though had spoken with Dianne Feinstein and Saxby Chambliss earlier that week about it). On May 1, Mark Udall got shrill, advising the President he could “excise the demons” of torture by releasing the report. On May 7, CIA was still compiling its “defiant” response to the report; National Security Council Spokesperson Caitlin Hayden told me the White House was still reviewing the document. Also on May 7, a collection of human rights organizations called on the White House to appoint someone to oversee the release of the report.

3 days later, Brennan was in the White House with a report on CIA’s complaints about the report, all written up.

But here’s the thing: that meeting was May 10. It was almost 7 weeks later before Brennan would present that report (again with leaks about how inaccurate millions of CIA cables are) — in the company of Joe Biden — to Dianne Feinstein and Saxby Chambliss (though there were reports that they ended up discussing other issues instead).

CIA has had its complaints all typed up for over two months now. And the only sign of any discussion about declassifying the report that describes how many lies CIA told about this program is Feinstein’s request to Jim Comey in his confirmation hearing that he would read it, why by itself seems a concession that we all won’t get to.

So did the White House decide not to release the report two months ago and just never tell us all?

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The Torture That Underlies FISA Court’s “Special Needs” Decisions

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At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

As explained in more detail below, since the inception of [the program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. Read more →

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Why Has the Intelligence Community Missed So Many Digital Bales of Hay?

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In a piece on the intelligence community’s increasing reliance on SIGINT, LAT reports that the amount of the President’s daily brief that comes from SIGINT has increased from 60% since 2000.

Determined to identify and track Al Qaeda terrorists and to prevent another attack after Sept. 11, 2001, the NSA set about vastly enlarging its ability to capture, store and exploit the ocean of texts, emails, videos and other electronic communications.

“They took on a new mission that required sifting vast amounts of data to find a few important signals,” said Stewart Baker, who was the NSA’s general counsel from 1992 to 1994 and held top Homeland Security Department jobs in the George W. Bush administration.

Today the NSA secretly siphons an almost unimaginable number of foreign government, corporate and private communications from the World Wide Web, according to the trove of classified material disclosed by Edward Snowden, the fugitive former NSA contractor. One document leaked last week revealed that NSA computers take in 500 million “communications connections” per month in Germany alone.

[snip]

About 60% of the president’s daily brief, the highly classified intelligence summary delivered to the White House each morning, was based as of 2000 on “signals intelligence,” or intercepted communications, according to a declassified NSA document from December of that year. The NSA portion has increased since then, former officials say.

“Over the last 10 years, because of the Internet gold mine, signals intelligence has become the primary vehicle for U.S. intelligence collection,” said James Lewis, director of the technology and public policy program at the nonpartisan Center for Strategic and International Studies in Washington.

WaPo’s original story on PRISM (which, remember, is just a computer interface making it easier for analysts to access data from just 9 companies) reported that 1 in 7 pieces of intelligence in the PDB derived from PRISM, or a total of 1,477 pieces of intelligence last year (10,339 pieces of intelligence in all the PDBs last year, then?).

An internal presentation of 41 briefing slides on PRISM, dated April 2013 and intended for senior analysts in the NSA’s Signals Intelligence Directorate, described the new tool as the most prolific contributor to the President’s Daily Brief, which cited PRISM data in 1,477 items last year. According to the slides and other supporting materials obtained by The Post, “NSA reporting increasingly relies on PRISM” as its leading source of raw material, accounting for nearly 1 in 7 intelligence reports.

Remember, this is all non-public information.

Back in 2011, however, the intelligence committee failed to understand the Arab Spring that was breaking out in public fora for all the world to see (I once quipped that those who followed Democracy Now’s Sharif Kouddous on Twitter had a better understanding of what was going on than the CIA).

And as recently as this year’s confirmation hearing for John Brennan, he admitted that the CIA needed to better monitor public social networks.

BRENNAN: Well clearly, counterterrorism is going to be a priority area for the intelligence community and for CIA for many years to come. Just like weapons proliferation is as well. Those are enduring challenges. And since 9/11 the CIA has dedicated a lot of effort, and very successfully, they’ve done a tremendous job to mitigate that terrorist threat.

At the same time, though, they do have this responsibility on global coverage. And so, what I need to take a look at is whether or not there has been too much of an emphasis of the CT front. As good as it is, we have to make sure we’re not going to be surprised on the strategic front and some of these other areas, to make sure we’re dedicating the collection capabilities, the operations officers, the all-source analysts, social media, as you said, the — the so-called Arab Spring that swept through the Middle East. It didn’t lend itself to traditional types of — of intelligence collection.

There were things that were happening — happening in a — on a populist — in a populist way, that, you know, having somebody, you know, well positioned somewhere who can provide us information is not going to give us that insight, social media, other types of things. So I want to see if we can expand beyond the sodestra (ph) collection capabilities that have served us very well, and see what else we need to do in order to take into account the changing nature of the global environment right now, the changing nature of the communication systems that exist worldwide.

Though Brennan suggested that a focus on leaders rather than common people led to CIA’s blindness in this case (I’d add, a reliance on brokers like Egypt’s Omar Suleiman or Saudi Arabia’s Mohammed bin Nayef, who have an interest in depicting unrest in their countries as threats to friendly governments, distorts reality).

But whether the NSA or the CIA should have seen the revolts bubbling up in plain sight, both missed it because of all the secret stuff they remained focused on.

I’m not actually advocating for the CIA to start trolling Twitter more aggressively. Still, if the focus on secret stuff has led to blindness, we need to rethink our obsession with secret digital haystacks.

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Researcher Exposes Government, Military Lies About Civilian Drone Deaths in Afghanistan

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A tweet this morning by Daphne Eviatar alerted me to a very important article by Spencer Ackerman at his new home with the Guardian. Ackerman interviewed Dr. Larry Lewis, who is a research scientist at the Center for Naval Analyses but is also described by National Defense University as a Current Field Representative to the Joint Staff J7, Joint and Coalition Operational Analysis Division. In speaking with Ackerman, Lewis referred to a study he conducted with access to classified data, where his work had a remarkable finding:

Larry Lewis, a principal research scientist at the Center for Naval Analyses, a research group with close ties to the US military, studied air strikes in Afghanistan from mid-2010 to mid-2011, using classified military data on the strikes and the civilian casualties they caused. Lewis told the Guardian he found that the missile strikes conducted by remotely piloted aircraft, commonly known as drones, were 10 times more deadly to Afghan civilians than those performed by fighter jets.

Ackerman points out in the article that Lewis mentions some of this work in a recently published article in Prism, which is published by NDU (note: To make things clearer to folks reading Marcy’s work on Snowden, I will call the journal Prism and not PRISM, even though the Guardian is once again breaking the news and the journal uses all caps in its name). Although NDU doesn’t make it easy to find the most recent issue of Prism, I finally found a pdf of the entire latest issue here, where the article by Lewis and coauthor Sarah Holewinski (who is at the Center for Civilians in Conflict) can be found on pages 57 to 65.

Lewis and Holewinski open by framing the issue of protection of civilians as a lesson that the US military has to learn repeatedly:

Civilian casualties can risk the success of a combat mission. While not new, this is a lesson us defense forces have had to repeatedly relearn. Historically, civilian protection and efforts to address harm became priorities only when external pressures demanded attention. As the Pentagon reshapes its defenses and fighting force for the next decade, continuing this ad hoc pattern in the future is neither strategically smart nor ethically acceptable.

As Ackerman notes in the Guardian article, the Prism article makes mention of the finding regarding civilian drone casualties in Afghanistan outpacing those from conventional aerial attacks:

The assumption that UAS (Unmanned Aerial Systems) strikes are surgical in nature is also belied by research on recent combat operations in Afghanistan. There, UAS operations were statistically more likely to cause civilian casualties than were operations conducted by manned air platforms.

Lewis and Holewinski describe the impact of both failing to protect civilians and lying about operations in which civilians have died. After describing relatively well-known examples of drone strikes in Pakistan that included such horrors as a double-tap targeting rescuers, the strike on a jirga addressing mining issues that killed up to 40 civilians or deaths at a restaurant, Lewis and Holewinski move back to Afghanistan:

Independent investigations are not always correct in their assessment of civilian deaths; however, the inability of the U.S. to adequately investigate the outcome of its clandestine UAS strikes calls into question official denials of civilian harm. The U.S. has stated that these strikes kill only combatants; however, operations in Afghanistan are replete with examples where all the engaged individuals were believed to be combatants, but a later investigation found many or all were civilians misidentified as combatants.

The continued claims of lack of civilian deaths despite hard evidence to the contrary takes a huge toll both on US credibility and on what takes place in the war theater:

A growing body of research, including that conducted by this article’s authors, shows that civilian casualties (CIVCAS) and the mishandling of the aftermath can compel more people to work against U.S. interests. Indeed, America’s image has suffered for years under the weight of anger and dismay that a nation, which stands by the value of civilian protection in wartime, seemed indifferent to civilian suffering.

Sadly, this is a lesson that has not been learned by such luminaries as Barack Obama, Diane Feinstein and John Brennan. As Ackerman points out:

While the drone strikes remain classified, several senior Obama administration officials and their congressional allies have described them as notable for their precision. John Brennan, now the CIA director responsible for the agency’s drones, said in 2012 they provide “targeted strikes against specific al-Qaida terrorists”. While defending the strikes as legal and “targeted”, Obama conceded in May that “US strikes have resulted in civilian casualties, a risk that exists in all wars”. Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, said in February that drones kill only “single digits” worth of civilians annually.

It does not appear that we have even gotten to a “least untruthful” official US accounting of the civilian casualty rates due to drones. In the meantime, our credibility will continue to suffer and our enemies will continue to accumulate.

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Shorter Mark Udall: Why Can’t John Brennan “Honor the Oath”?

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Still reading the NSA IG Report, so I’ll just quote right from Mark Udall’s release:

As a member of the Senate Intelligence Committee, I am concerned to see news reports about the CIA’s response to the Committee’s Study of the CIA’s Detention and Interrogation Program before the information was provided to the committee. Committee members have not yet seen this response, which we have been expecting for nearly six months.

The American people’s trust in intelligence agencies requires transparency and strong congressional oversight. This latest leak–the latest incident in a long string of leaks from unnamed intelligence officials who purport to be familiar with the Committee’s Study and the CIA’s official response to it–is wholly unacceptable. Even as these reports emerged today and over the past several months, the CIA and the White House have repeatedly rejected requests to discuss the Committee’s report with Members or Committee staff.

The continual leaks of inaccurate information from unnamed intelligence officials are embarrassing to the agency and have only hardened my resolve to declassify the full Committee Study, which is based on a review of more than six million pages of CIA records, comprises more than 6,000 pages in length and includes more than 35,000 footnotes. The report is based on CIA records including internal memoranda, cables, emails, as well as transcripts of interviews and Intelligence Committee hearings. The Study is fact-based, and I believe, indisputable.

I am confident the American people will agree once they have the opportunity to read the Study, as well as the CIA’s official response, that this program was a failure and a tragic moment in America’s history. The only way to correct the inaccurate information in the public record on this program is through the sunlight of declassification.

The other thing that leaked in the last day, in addition to CIA’s claim that millions of its reports are inaccurate, is this news:

CIA Director John Brennan is launching a new campaign aimed at pressuring CIA officers to keep the intelligence agency’s secrets secret, after a series of leaks to the media.

In a memo to the CIA workforce this week, Brennan says the “Honor the Oath,” campaign is intended to “reinforce our corporate culture of secrecy” through education and training.

Some leadership on “our corporate culture of secrecy” Brennan is showing, huh?

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Who Was the Short-Sighted Personnel Guy at CIA Who Set up NYPD-on-the-Hudson in 2002?

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As Charlie Savage reports, the CIA’s IG report on CIA-on-the-Hudson has finally been released. It finds that the decision to put CIA personnel at NYPD was ill-advised and poorly managed by CIA’s executives who oversaw the arrangement.

While negative public perception is to be expected from the revelation of the Agency’s close and direct collaboration with any local domestic police department, a perception that the Agency has exceeded its authorities diminishes the trust placed in the organization. This has the added potential of impeding our ability to effectively support law enforcement at both the local and federal level. Additionally, the risk that CIA officers could become involved in law enforcement matters exists if implementing procedures and policies to designed such collaboration are not clearly understood. A lapse in any one of these components has the potential to make Agency officers vulnerable and could jeopardize the vital mission the Agency performs.

[snip]

The revelation of these issues, as discussed in more detail in the Executive Summary, leads me to conclude that the risks associated with the Agency’s relationship with NYPD were not fully considered and that there was inadequate direction and control by the Agency managers responsible for the relationship. [my emphasis]

Amid descriptions of violations of protections for Americans, the report describes basic personnel problems with the arrangement.

In addition, there appears to have been no documentation between CIA and NYPD addressing specifically the employee’s role concerning access to NYPD records and the practices to be followed with respect to the sharing of lead information.

[snip]

… better documentation of the arrangement, practices, and appropriate approvals was warranted.

Unfortunately, the report does not name all the “senior CIA managers” who first implemented such an ill-considered program — it only says the first CIA officer was sent under George Tenet’s authority.

In early 2002, senior CIA management received requests for increased Intelligence Community (IC) support from federal, state, and local law enforcement, to include the NYPD. A Concept of Operations (CONOP) was developed by senior Agency officers in April 2002 for a temporary duty assignment (TDY) of a seasoned Directorate of Intelligence (DI) analyst to New York City for a six to nine month period under Director of Central Intelligence Authorities. 1

1 … DCI Tenet directed [redacted–AP reported this as Larry Sanchez] to New York City in 2002 under his DCI authorities as manager of the intelligence community.

Sanchez would be there from June 4, 2002 to March 2004, after which he took Leave without Pay and served at the NYPD full time until May 2009.

Sanchez believed he had “no restrictions” as to what he could and couldn’t do at NYPD.

The report makes it clear Sanchez served as a cop during the 5 years he was at NYPD while on LWOP. It doesn’t explain what he did in the first 2 years there, when he was still officially at the CIA, during which time — the report makes clear — serving as a cop would have violated restrictions on CIA officers serving as law enforcement.

Now, the report provides more details about how two of the other three CIA officers shared with the NYPD got sent. It names titles — Associate Deputy Director, Director of National Clandestine Services, Senior Deputy General Counsel as being involve d in the later decisions. It decides a Memorandum of Notification and warnings against engaging in domestic law enforcement (though that didn’t stop the person in question from filtering up to 12 reports a day up to CIA). For the third (whose transfer didn’t have that kind of guidance), names are named, including that of Deputy Director Mike Morell and Director/NCS John Bennett.

In short, Sanchez’s assignment may or may not have been as bad when, for a period in 2008, CIA was getting direct access to NYPD’s domestic intelligence reports. But at least from this review it seems like his assignment was one of the biggest clusterfucks from a management perspective.

You know? From the period when John Brennan was Deputy Executive Director at the CIA, “focused on administrative and workforce issues.” The same John Brennan who, after these practices were exposed, insisted he was “intimately familiar” with the program but that the CIA “knew what the rules were” — rules that, particularly for Sanchez while Brennan was still DExDir, simply weren’t in place.

Brennan’s potential role in this clusterfuck is all the more interesting given the timing of the report. It was written while he was the President’s top counterterrorism advisor. EPIC FOIAed the document March 28, 2012. CIA denied it expedited processing. So EPIC sued on December 20, 2012. CIA asked for one one week delay a few weeks after Brennan was confirmed Director.

And now this comes out, the day before Brennan heads to the Senate Intelligence Committee to tell them their 6,000 page report on torture is wrong.

It sure sounds like a report held to avoid embarrassing Brennan.

But don’t worry. We didn’t need to have any public airing of Brennan’s role — aside from his vague admission he knew about the program — before he got the authority to replicate the program elsewhere.

In superb news, late last night, the NYC City Council passed, with veto proof majorities, two bills that would provide real oversight for the NYPD.

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Michael Hayden, Troll Extraordinaire

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“Intelligence agencies often act on the edges of executive prerogative and move forward based on a narrow base of lawfulness and limited congressional notification,” says Michael Hayden, the guy who oversaw Bush’s illegal wiretap for 2.5 years before the full Gang of Eight first got adequately briefed, and who never briefed Congress on CIA’s assassination program.

In the same piece, Hayden hails media editors who ceded to his requests to hold or adjust a story.

So, how do we limit the damage? Well, journalists will have to expand the kind of sensitivities to the national welfare that some already show. In those calls I made to slow, scotch or amend a pending story, most on the other end of the line were open to reasonable arguments. In one case a writer willingly changed a reference that had read “based on intercepts” to “based on intelligence reports,” somewhat amazed that that change made much of a difference. (It did.)

But then insists the UndieBomb 2.0 story — for which AP editors had made precisely those kinds of concessions — was right to be investigated because John Brennan’s push back to it exposed a mole.

The two prominent cases being debated were indeed serious leaks, because they touched upon sources, not just information.

In the case of the Associated Press report on a Yemen-based bomb plot, the source had apparently penetrated an al Qaeda network and there were hopes that he could continue to be exploited.

[snip]

And, since the Yemen source appears to have actually been recruited by a liaison partner, the impact of a leak goes far beyond our own service. In that same talk with bureau chiefs, I pointed out that several years before 9/11, one chief of station reported that a press leak of liaison intelligence had “put us out of the (Osama) bin Laden reporting business”.

In both stories, investigations were in order. Journalists, of all people, should understand the need to protect sources and relationships.

As the LAT story Hayden links to says clearly, “The AP did not mention the informant in its report.” And, as I laid out some weeks back, to believe our mole was going to return, the former head of the CIA would have to believe that AQAP shows great tolerance for recruits who fuck up and then return right after high ranking operatives get drone killed.

Because to maintain that claim, you’d have to explain how an AQAP operative who had been entrusted with the latest version of Ibrahim al-Asiri’s UndieBomb sometime in early April, had left (at least as far as Sanaa), had not apparently succeeded in his mission (which was, after all, meant to be a suicide bombing), could return to AQAP without the UndieBomb and infiltrate even further than he had the first time.

“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”

In short, Hayden appears to have decided it’d be a good idea to ignore the facts, good sense, and his own history so as to suggest that the Obama Administration is worse than the reasonable old Bush Administration.

But the investigations have been very aggressive and the acquisition of journalists’ communications records has been broad, invasive, secret and—one suspects—unnecessary.

A quick survey of former Bush administration colleagues confirmed my belief that a proposal to sweep up a trove of AP phone records or James Rosen’s e-mails would have had a half-life of about 30 seconds in that administration.

Just ignore the fact that the government was asking people questions about James Risen‘s phone contacts — indicating they had probably doing just what the Obama Administration did to the AP reporters, only without telling him — before Obama took over.

But here’s my favorite part:

The government may also want to adjust its approach to enforcement. The current tsunami of leak prosecutions is based largely on the Espionage Act, a blunt World War I statute designed to punish aiding the enemy. It’s sometimes a tough fit. The leak case against former National Security Agency employee Thomas Drake collapsed of its own overreach in 2011.

Perhaps in many of these cases the best approach is not through the courts or the Department of Justice.

Remember, Drake was investigated for telling a journalist about Hayden’s own boondoggle that cost many times what NSA’s existing better solution cost. There is virtually no way the investigation against him didn’t rely, in part, on Hayden’s own testimony.

And now, 6 years after the investigation into Drake started in earnest, Hayden suggests Drake shouldn’t have been criminally investigated at all.

Hayden can afford that very belated generosity, of course. He’s been profiting off the same kind of boondoggles Drake tried to expose for years now.

I mean, sure, the main jist of what Hayden says is true: the Administration is pursuing leaks far too aggressively. But coming from a guy who has long benefitted from the Executive Branch asymmetric abuse of secrecy, he’s not exactly the right person to be making the point.

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Navy v. Egan, not Just Branzburg v. Hayes, Needs Fixed

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Today, 340 new journalists will join the 10 or so who have been covering the Bradley Manning prosecution closely for the last several years; his trial starts today at Fort Meade.

Expect to see a bunch of essays on secrecy to mark the beginning of the trial.

This one, in which Steven Coll calls for the Supreme Court to revisit the Branzburg v. Hayes decision that established a spirit but not a law protecting press sources, has already generated a lot of attention.

In the long run, to rebalance the national-security state and to otherwise revitalize American democracy, the United States requires a Supreme Court willing to deepen protections for investigative reporters, as the majority in Branzburg would not.

Among some other minor factual inaccuracies (including what the AP UndieBomb 2.0 leak was originally about), it includes this claim.

[Obama’s] longest-serving advisers are disciplined and insular to a fault; press leaks offend their aesthetic of power.

While I agree Obama’s advisors are insular to a fault, and agree they revel in an aesthetic of power, they do not despise all press leaks. Even aside from the typical policy debate leaks of classified information, the White House has long reveled in “leaking” classified information to selected members of the press, to get the information out there on its own terms. The tactic is not new — it is precisely the A1 cut-out approach the Bush Administration used to get us into the Iraq War. But the Obama Administration may have expanded its use (that is actually the reason Republicans in Congress were demanding investigations of the leaks that followed the AP story, the ones that, unlike the AP, exposed our mole).

Which is why Coll proposes an inadequate solution to what I agree is the key problem.

Obama inherited a bloated national-security state. It contains far too many official secrets and far too many secret-keepers—more than a million people now hold top-secret clearances. Under a thirty-year-old executive order issued by the White House, the intelligence agencies must inform the Justice Department whenever they believe that classified information has been disclosed illegally to the press. These referrals operate on a kind of automatic pilot, and the system is unbalanced. Prosecutors in Justice’s national-security division initially decide on whether to make a criminal case or to defer to the First Amendment. The record shows that in recent years the division has been bent on action.

I’m not opposed to establishing clearer laws about when a journalist’s sources may be protected. But that can be used — as Dick Cheney tried to use it — as a screen for his exposure of Valerie Plame. Protecting journalists’ sources will not only protect real whistleblowers, but it will also protect the system of official leaks that both Bush and Obama have used to accrue power and avoid accountability.

So not only is fixing Branzburg v. Hayes not enough to fix our “unbalanced … bloated national security state,” it doesn’t get at the underlying problem

As a threshold measure, journalists should be calling for the limitation or repeal of the Espionage Act, which is the real stick Obama is using to cut down on unsanctioned leaks. It’s bad enough for whistleblowers to risk losing their clearance, and with it, a well-compensated livelihood. But as soon as you start talking extended prison sentences, as soon as you start accusing whistleblowers of being worse than an enemy’s spy because they shared damning information with the public generally, that’s going to silence unsanctioned leaks.

Just as importantly, this entire structure of abuse of power rests on a different SCOTUS decision, Navy v. Egan, which gives the Executive absolute control over security clearances (and therefore the less powerful leverage usually wielded against whistleblowers, the ability to strip their clearance), but which has been interpreted by Bush and Obama to give the Executive unfettered authority to determine what is secret and what is not. This decision — which is precisely what David Addington told Scooter Libby he could rely on to justify outing Plame on Cheney’s order — is also what the Obama Administration cited when it refused to litigate al-Haramain and in so doing granted the Bush Administration impunity for illegal wiretapping. The Executive’s claim to have unlimited authority to decide what is secret and not is also what prevents the Senate Intelligence Committee from declassifying the torture report on its own authority. It is also the basis for the authority to stall releasing video of US helicopters gunning down a Reuters team to Reuters under FOIA, which led to Manning leaking it to WikiLeaks himself.

The Obama and Bush Administrations have claimed that no one — not Congress, not the Courts — has the authority to review their arbitrary use of secrecy to accrue more power. That claim is an expansive reading of Navy v. Egan, but thus far not one anyone has challenged before SCOTUS. And that is what has enabled them (with the limited exception of the Plame outing) to avoid all consequences for their asymmetric use of leaks.

So, yes, it would be useful if SCOTUS decided that journalists and others engaging in legitimate investigation can protect sources, especially when investigating national security. But until the underlying system — the Executive’s claim that it can abuse secrecy to protect itself — is changed, secrecy will remain a cancer rotting our democracy.

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