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Just Before Obama Weighs in on the Russian Hack, John Brennan Tells Everyone What He Says Others Said

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At 2:20, WaPo published a story basically saying, “Anonymous source says CIA Director Wrote a Letter Claiming FBI Director and Director of National Intelligence Agree with Him,” but you wouldn’t know that from the headline.

At 2:40, President Obama entered the White House briefing room to give his last press conference of the year, which was scheduled to start at 2:15. Everyone anticipated, correctly, the presser would be dominated by questions about Russia’s role in the election.

So:

2:15: scheduled start for the President to comment on Russia’s hacking and what the intelligence says.

2:20: WaPo tells you what an anonymous leaker says CIA’s Director says FBI’s Director and Director of National Intelligence say, which differs somewhat from what Obama says.

2:40: Obama walks to the podium as, presumably, everyone waiting is reading WaPo’s scoop.

Who says only Vladimir Putin is good at information ops?

Mind you, once you get into the body of the article, there’s a significant difference between what WaPo says CIA says today and what its anonymous sources said CIA said a week ago, the last time it stomped on Obama’s efforts to introduce some deliberation into the claims about Russia’s hacks. Last week, WaPo said the CIA view was this:

“It is the assessment of the intelligence community that Russia’s goal here was to favor one candidate over the other, to help Trump get elected,” said a senior U.S. official briefed on an intelligence presentation made to U.S. senators. “That’s the consensus view.”

[snip]

The CIA shared its latest assessment with key senators in a closed-door briefing on Capitol Hill last week, in which agency officials cited a growing body of intelligence from multiple sources. Agency briefers told the senators it was now “quite clear” that electing Trump was Russia’s goal, according to the officials, who spoke on the condition of anonymity to discuss intelligence matters. [my emphasis]

Goal, singular.

Here’s what the lead says in today’s article.

FBI Director James B. Comey and Director of National Intelligence James R. Clapper Jr. are in agreement with a CIA assessment that Russia intervened in the 2016 election in part to help Donald Trump win the presidency, according to U.S. officials.

With this further elaboration below.

The CIA shared its latest assessment with key senators in a closed-door briefing on Capitol Hill about two weeks ago in which agency officials cited a growing body of intelligence from multiple sources. Specifically, CIA briefers told the senators it was now “quite clear” that electing Trump was one of Russia’s goals, according to the officials, who spoke on the condition of anonymity to discuss intelligence matters.

CIA and FBI officials do not think Russia had a “single purpose” by intervening during the presidential campaign. In addition to helping Trump, intelligence officials have told lawmakers that Moscow’s other goal included undermining confidence in the U.S. electoral system. [my emphasis]

WaPo still makes no mention of the most obvious goal, that Russia hacked Hillary to retaliate for real and perceived slights covertly carried out by Hillary and CIA, something that Hillary claimed just before the WaPo story and the Obama presser.

In any case, if you look at CNN’s far more sober version of this, it appears that there is still some difference in emphasis about whether Russia was trying to elect Trump (and Brennan’s statement appears not to lay out what the consensus view is).

The nuance lay in a stronger view by the CIA that the hacking was intended to help elect Trump, and the CIA leans more strongly in that view than the FBI does.

Ah well, in the waning days of a great empire, who cares about deference to the outgoing President?

Update: This exchange between Obama and Martha Raddatz most directly addresses what Obama wants to say about the hack (elsewhere he says there was no evidence Russia hacked any polls).

Q Mr. President, I want to talk about Vladimir Putin again. Just to be clear, do you believe Vladimir Putin himself authorized the hack? And do you believe he authorized that to help Donald Trump? And on the intelligence, one of the things Donald Trump cites is Saddam Hussein and the weapons of mass destruction, and that they were never found. Can you say, unequivocally, that this was not China, that this was not a 400-pound guy sitting on his bed, as Donald Trump says? And do these types of tweets and kinds of statements from Donald Trump embolden the Russians?

THE PRESIDENT: When the report comes out, before I leave office, that will have drawn together all the threads. And so I don’t want to step on their work ahead of time.

What I can tell you is that the intelligence that I have seen gives me great confidence in their assessment that the Russians carried out this hack.

Q Which hack?

THE PRESIDENT: The hack of the DNC and the hack of John Podesta.

Now, the — but again, I think this is exactly why I want the report out, so that everybody can review it. And this has been briefed, and the evidence in closed session has been provided on a bipartisan basis — not just to me, it’s been provided to the leaders of the House and the Senate, and the chairman and ranking members of the relevant committees. And I think that what you’ve already seen is, at least some of the folks who have seen the evidence don’t dispute, I think, the basic assessment that the Russians carried this out.

Q But specifically, can you not say that —

THE PRESIDENT: Well, Martha, I think what I want to make sure of is that I give the intelligence community the chance to gather all the information. But I’d make a larger point, which is, not much happens in Russia without Vladimir Putin. This is a pretty hierarchical operation. Last I checked, there’s not a lot of debate and democratic deliberation, particularly when it comes to policies directed at the United States.

We have said, and I will confirm, that this happened at the highest levels of the Russian government. And I will let you make that determination as to whether there are high-level Russian officials who go off rogue and decide to tamper with the U.S. election process without Vladimir Putin knowing about it.

Q So I wouldn’t be wrong in saying the President thinks Vladimir Putin authorized the hack?

THE PRESIDENT: Martha, I’ve given you what I’m going to give you.

False Reassurances: On Pixie Dusted Executive Orders, Appendix M, and Proxy Detention and Torture

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In the wake of Trump’s victory, a number of people have offered some thoughts intended to reassure. In a piece titled, “The United States is not about to spiral into tyranny,” Kevin Drum claimed — among other things — that Trump will have a hard time reversing Obama’s Executive Orders.

Trump will learn that repealing executive orders is harder than he thinks, and it’s unlikely he has the attention span to really keep at it.

And a number of pieces — such as this one from Reuters — point to last year’s language in the NDAA limiting interrogation to techniques that appear in the Army Field Manual.

Trump’s support for water-boarding, an interrogation technique that simulates drowning, also would meet opposition. Congress last year passed legislation barring the use of waterboarding and other “extreme interrogation techniques” widely considered torture. Obama signed the measure into law last November.

Both of those reassurances are overly optimistic.

Pixie Dusting EOs

Even on its face, the idea that Trump can’t reverse Obama’s EOs doesn’t make sense. A president has uncontested authority to pass EOs as he pleases. The only limit on that power is Congress. If sufficient numbers in Congress, backed by sufficiently powerful leaders in Congress, want to contest a president’s public EOs, they can try to legislate or defund an activity.

There is no likelihood of that happening with Trump anytime soon. None. Especially not with the EO that Trump is probably most anxious to reverse, Obama’s order deferring deportation of 5 million people who’ve long been valuable members of American society.

More importantly — and this is something everyone needs to start accounting for — according to two different OLC memos, one used to authorize Iran-Contra, the other used to authorize Stellar Wind, the president doesn’t even have to make the actual implementation of his EOs public.

An executive order is only the expression of the President’s exercise of his inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive’s Article II authority. Further, there is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: Legal Authority for Recent Covert Arms Transfers to Iran (Dec. 17, 1986). In doing so, he need not issue a new executive order, rescind the previous order, or even make his waiver or suspension of the order publicly known. Thus, here, the October 4, 2001 Authorization, even if in tension with Executive Order 12,333, only represents a one-time modification or waiver of the executive order, rather than a “violation” that is in some way illegal.

While Jack Goldsmith’s May 6, 2004 Stellar Wind memo supplanted the Yoo memo in which he made this argument, there has been no public repudiation of this logic or the underlying Iran-Contra memo, not by Constitutional scholar Barack Obama, not by Congress.

In other words, no one has invented any kind of requirement that the president let the public or even Congress know what rules he believes he is bound by.  Indeed, it’s absurd to think Obama would have institutionalized something like that, given that (according to CIA General Counsel Caroline Krass) his administration has started hiding its self-authorizations in places besides OLC so we won’t know where to look for them.

Which means a man who used disinformation to get elected has no obligation to tell us what rules he considers himself bound by.

Three shell games that already exist under which to conduct torture

Similarly, the NDAA prohibition on torture is less ironclad than often claimed. That amendment didn’t prohibit torture. Rather, it restricted national security interrogators to the techniques in the Army Field Manual.

The amendment explicitly excluded law enforcement personnel from this restriction. As John Brennan said when he was asked about this way back in 2013, the FBI has its own processes and procedures, many of which remain obscure, others of which include clear loopholes. Importantly, the FBI increasingly operates — as the DEA has long done — overseas, where any problematic processes and procedures can easily be hidden.

In addition, as Jeff Kaye pointed out at the time, the AFM includes a section called Appendix M, which permits the use of a technique called Separation. The UN Committee Against Torture found Appendix M problematic, because it induced psychosis, during the UN review of US practices back in 2014.

But there’s another problem with the AFM. In 2006, Steven Bradbury wrote an OLC memo that basically authorized Appendix M largely divorced from the actual details of it. As I read it, that memo may be used for authorization of techniques used in Appendix M even if they’re not enumerated in the memo, meaning Trump can put anything in Appendix M and claim to have OLC buy-off. In fact, Bradbury incorporated within that memo yearly updates to the Appendix. It basically created a drawer, which might or might not be classified, into which DOD could throw whatever it wants to do.

When Congress passed the NDAA, they required the Appendix M to be reviewed to make sure it is humane and legal — but not until 2017. So while the intent of this amendment was explicitly to prohibit inhumane treatment, it relies on a structure of interpretations left up to the future President. The future President, as it turns out, got elected insisting that waterboarding is not torture.

Finally, the Drone Rule Book (which Trump can throw out on January 20 in any case) explicitly envisions letting our friends detain people, so long as they give us reassurances the person will be treated humanely. The Bush Administration started waterboarding people by watching while Egyptians did the waterboarding for us. It asked Bashar al-Assad (and a number of other countries we still are friends with) do far worse to people on our behalf. There has never been any appetite to eliminate the shell game of proxy detention. Indeed, Obama has used such shell games in Somalia and Kuwait, with tortured alleged in the latter case.

The CIA has been leaking wildly about its concerns about being asked to torture. But the CIA — and its enablers — didn’t do the things to make it impossible to ask them to torture when we had the chance.

Threat Level Orange! Election Week Plot!

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screen-shot-2016-11-04-at-5-01-51-pmThis morning, CBS published a story attributed to senior producer Pat Milton, who has done a lot of FBI-based stories (and co-produced fawning 60 Minutes interviews with John Brennan and Jim Comey), reporting on a possible terrorist attack. The story described the threat with specific detail — scheduled for Monday, in maybe NY, TX, or VA — but even while explicitly stating that “its credibility hasn’t been confirmed.”

Sources told CBS News senior investigative producer Pat Milton that U.S. intelligence has alerted joint terrorism task forces that al Qaeda could be planning attacks in three states for Monday.

It is believed New York, Texas and Virginia are all possible targets, though no specific locations are mentioned.

U.S. authorities are taking the threat seriously, though the sources stress the intelligence is still being assessed and its credibility hasn’t been confirmed. Counterterrorism officials were alerted to the threat out of abundance of caution.

The version published at 7:43 AM (and screen captured to the right) clearly attributed the story to a senior FBI official. (I’ve bolded the differences.)

A senior FBI official told CBS News, “The counterterrorism and homeland security communities remain vigilant and well-postured to defend against attacks here in the United States.  The FBI, working with our federal, state and local counterparts, shares and assesses intelligence on a daily basis and will continue to work closely with law enforcement and intelligence community partners to identify and disrupt any potential threat to public safety.”

The version published at 12:52 rewrote that paragraph, obscuring that FBI was the source.

“While we do not comment on intelligence matters, we will say the counterterrorism and homeland security communities remain vigilant and well-postured to defend against attacks here in the United States,” a U.S. intelligence official told CBS News. “The FBI and DHS, working with our federal, state and local counterparts, share and assess intelligence on a daily basis and will continue to work closely with law enforcement and intelligence community partners to identify and disrupt any potential threat to public safety.

This story, leaked by a senior FBI official who “doesn’t comment on intelligence matters” but nevertheless did just that, comes at the end of the crappiest week for the FBI in decades.

At this point, it is fair to argue that the intelligence community — including people leading it today — have capitalized on a terrorist threat, even a dodgy one. As I tweet stormed this morning (and wrote in more detail here), in 2004 the government played up two dodgy election year threats.

In March 2004 (just as torture, spying cut back) fabricator went to CIA in Pakistan and said, “Janat Gul wants to attack US elections.”

Someone in CIA immediately said, “Nah!” Nevertheless, US got PK to detain, turn Gul to US to be tortured.

USG (including Jim Comey) reauthorized torture, to be used with Gul. Including waterboarding & techniques CIA had already used w/o approval.

USG (including Comey & John Brennan) also used election year plot based off fabrication as one reason FISC had to approve Internet dragnet.

There were, of course, leaks to the press about this election year plot.

CIA kept torturing and torturing Janat Gul, because they needed details of an election year plot based off a fabrication.

It wasn’t until October that someone said, “Hey, let’s go check if that guy claiming Gul wanted to attack US election was lying!” He was.

But Gul had served purpose: election year scare, reauthorizing torture, getting FISC approval for dragnet. Not bad for one torture victim!

Comey didn’t know CIA immediately raised concerns abt fabricator’s claims. It’s one thing Cheney/Gonzales prevented him fr learning in 2005

Comey signed off on torture again, including waterboarding w/o knowing that that case was all based off a fabrication.

But Comey has also refused to read torture report, which lays all this out. He’s avoiding learning what he did in 2004, 2005. Brennan too!

I lay all this out bc, w/history like this, IC (still led by Brennan & Comey) should be VERY careful abt leaking election year plots.

Succinctly: They cried wolf in 2004. And have yet to face accountability for that.

Then, in 2006 (at a time when both Comey and Brennan were on hiatus from directly government work, though they were both working with key government contractors), it happened again. Dick Cheney triggered the revelation of a very real terrorist plot in 2006 — fucking over the British officials trying to collect enough information to prosecute the perpetrators — to help Joe Lieberman stay in the Senate.

The point is, these people, including the people in charge of the IC now, have selectively exploited real or imagined terrorist plots before. The leak of this one, which FBI clearly hasn’t even vetted, sure seems exploitative given how badly FBI needs to distract from its own fuck-ups.

CIA Director Entry Number 2: Mike Morell, Fabulist

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As Eli Lake wrote the other day, there are three men angling to be CIA Director under President Hillary: John Brennan, Mike Morell, and Mike Vickers.

I’ve already explained what is terrifying about Vickers’ audition to be CIA Director: after laying out the Hillary as Commander-in-Chief case (which appears to be mandatory for these things), Vickers then talks about how we need to escalate our wars and belligerence.

To be sure, we will need more aggressive counterterrorism strategies, stronger support for the Syrian opposition as the only plausible counterweight to authoritarianism and extremism within Syria, more effective counters to Iranian and Russian expansion, and better strategies for deterring and competing with China over the long term.

Henceforth, I will refer to Vickers as The Escalationist.

Today, Mike Morell submitted his audition to be CIA Director.

As Vickers did (these do seem to be formulaic), Morell lays out his extensive bipartisan past (Vickers claims service under 4 Republican and 2 Democratic Presidents, Morell claims 3 of each), then talks about how serving with Hillary convinced him she has the temperament to be Commander-in-Chief.

I spent four years working with Mrs. Clinton when she was secretary of state, most often in the White House Situation Room. In these critically important meetings, I found her to be prepared, detail-oriented, thoughtful, inquisitive and willing to change her mind if presented with a compelling argument.

Like Vickers, Morell lauds Hillary’s courage in pushing for the raid that killed Osama bin Laden.

Mrs. Clinton was an early advocate of the raid that brought Bin Laden to justice, in opposition to some of her most important colleagues on the National Security Council.

[snip]

I never saw her bring politics into the Situation Room. In fact, I saw the opposite. When some wanted to delay the Bin Laden raid by one day because the White House Correspondents Dinner might be disrupted, she said, “Screw the White House Correspondents Dinner.”

Disrupting White House Correspondents Dinner to kill someone would count as politics? Really?

Also like Vickers, Morell then lays out Trump’s lack of qualification for the job, both in terms of background and temperament.

But Morell’s gimmick — the brand that sets him apart on this quest to be CIA Director — is not an explicit call for escalation, but instead the specific gloss he puts on Trump’s soft spot for Putin. After portraying Trump’s careless claims as full endorsements of Putin, Morell claims Trump has been recruited by the old KGB officer, albeit unwittingly.

Mr. Putin is a great leader, Mr. Trump says, ignoring that he has killed and jailed journalists and political opponents, has invaded two of his neighbors and is driving his economy to ruin. Mr. Trump has also taken policy positions consistent with Russian, not American, interests — endorsing Russian espionage against the United States, supporting Russia’s annexation of Crimea and giving a green light to a possible Russian invasion of the Baltic States.

In the intelligence business, we would say that Mr. Putin had recruited Mr. Trump as an unwitting agent of the Russian Federation.

Don’t get me wrong. I’m all in favor in making political hay out of Trump’s call on Putin to hack Hillary, especially coming as it does from someone (unlike Jake Sullivan and Leon Panetta) without a known history of mishandling classified information.

But that line? “recruited Mr. Trump as an unwitting agent of the Russian Federation”? That’s all about the clicks, and it has been serving splendidly. Just like “Slam Dunk” was a nifty line.

In a piece auditioning to be CIA Director, I’d prefer someone stick more rigorously to the truth. Trump is an apologist for Putin, undoubtedly, but there’s no more evidence Putin has recruited Trump (unwittingly) than there is, say, the Saudis have recruited Hillary. They’re all just picking the assholes they champion, with Hillary picking the assholes we’ve long championed.

Then again, this is not the first time Morell has stretched the truth a bit — up to and including on torture, so we shouldn’t be surprised by the tactic.

So there you have it: The Escalationist versus The Fabulist, your first two contestants on the Price is Right CIA nomination competition.

Sadly, we probably won’t see something quite so explicit from Brennan (though it would be amusing to see if a third endorsement hewed so closely to the same script as the other two), so we’ll just have to accept Lake’s “drone warrior” brand for him.

Eli Lake’s Portrayal of the CIA Director Campaign: Drones, Benghazi, and … ?

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Eli Lake reports that John Brennan wants to stay on as CIA Director under President Hillary. That’s not surprising given that Brennan believes (as Lake notes) CIA Directors should get 10 year terms just like FBI Directors do.

I thought maybe Brennan wanted to stick around to make sure he gets credit for bettering Allen Dulles’ record for regime change (after all, it’s not clear how the regime change conducted while Brennan was at the White House gets counted in these things).

Apparently not. After laying out what he portrays as opposition from both the left and right (not that that stopped Brennan from being confirmed in 2013), Lake describes that Brennan might stay because he’s the architect of the drone war.

Brennan does have the benefit of understanding the intricacies of the U.S. drone war that expanded significantly under Obama. Indeed, he is one of the main authors of that policy, going back to his time at the White House during Obama’s first term.

There was a time when Obama endeavored to end that war by the time he left office. It’s now clear that Obama’s successor will inherit it. Brennan is hoping that if that successor is Clinton, she will also inherit the architect of the drone war that he and Obama can’t seem to end.

This, at a time when the Senate Intelligence Committee and Armed Services Committee still squabble over who should drive the drone war.

Lake describes Mike Morell’s case (someone Dianne Feinstein has lobbied against in the past) this way:

Morell in particular has been helpful to Clinton. In his memoir and in congressional testimony, he blamed the CIA and the White House for the talking points on the 2012 Benghazi attack that attributed an act of terror to a demonstration over an internet video. Clinton, of course, was secretary of state at the time, and Republicans have leveled most of their criticism of Benghazi at her.

Lake pretends that the stated role in Benghazi and unstated opposition from Feinstein based off Morell’s comments about the torture report wouldn’t sink his candidacy. Maybe that wouldn’t?

Which leaves Mike Vickers, about whom Lake only mentions Vickers’ history as “former CIA officer and undersecretary of defense for intelligence.” Thankfully, Vickers has made his own case, in a recent endorsement of Hillary. After Vickers recalls his own bipartisan history (largely running covert ops), he raises Hillary’s favorite alleged proof of her national security chops, when she advised Obama to launch the Osama bin Laden raid.

As a Green Beret, CIA operations officer and senior national security official, I have served under six presidents—four Republicans and two Democrats. The last was Barack Obama, and for four years in the White House Situation Room, I saw Secretary of State Hillary Clinton’s sound strategic judgment first-hand—on the Afghanistan surge, the campaign to dismantle and defeat core al Qaeda in Pakistan’s tribal region, the raid to kill Osama bin Laden, and on lethal support for the moderate Syrian opposition. Secretary Clinton has the temperament, national security experience and strategic judgment to be an outstanding commander in chief. Donald Trump does not. I’m with her.

Vickers then ends his “endorsement” by confidently asserting we need to be more hawkish than we currently are.

To be sure, we will need more aggressive counterterrorism strategies, stronger support for the Syrian opposition as the only plausible counterweight to authoritarianism and extremism within Syria, more effective counters to Iranian and Russian expansion, and better strategies for deterring and competing with China over the long term. But just as we needed an experienced and steady hand to guide us safely through the early years of the Cold War, we need an experienced and steady hand to guide us through the current challenges to American leadership and world order. Only one candidate in this presidential race can supply that.

There you have the race to be CIA Director under Hillary (at least as viewed through a Neocon lens): the current drone architect, Mr. Benghazi, or the guy whose enthusiasm for covert ops matches Hillary’s own.

Brennan Calls Out the Press for Giving ISIS More Credit Than They Deserve

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Both James Clapper and John Brennan appeared at the Aspen Security Forum this week (it was Brennan’s first appearance, apparently). As I may lay out, Clapper was by far the more measured of the two. But this exchange, between Brennan and Dina Temple-Raston, deserves more attention. She notes that ISIS gets credit for attacks (she doesn’t name any, but I’d point to the San Bernardino killing and the Orlando massacre) that seem incidentally motivated at the last minute by ISIS, but generally are motivated by other issues.

To his credit, Brennan blames the press for crediting ISIS with these attacks.

Temple-Raston: It seems that people get credit for being an ISIS adherent just by having a brief flirtation online with the group. And I wonder if by calling something an ISIS attack so readily, which we seem to do, whether or not we’re giving ISIS more credit than it deserves.

Brennan: When you say “calling something an ISIS attack” that we’re prone to do, you’re talking about the media, right?

[Laughter, Brennan not exactly smiling, then later smiling]

Temple-Raston: No.

[More laughter]

Temple-Raston: I just wonder if you can’t say that it’s an opportunistic attack, as opposed to an ISIS attack.

But then Brennan goes on and notes that getting credit for such attacks is part of ISIS’s strategy.

Brennan: Sometimes I think ISIL doesn’t know themselves. I think most times they don’t. If somebody has been encouraged and incited by ISIL, they have no idea if that was the real motivation. Even if somebody is found with literature in their apartment that might reflect ISIL’s, you know, narrative, that doesn’t mean that they carried it out for that. It may mean that they, you know, woke up that day and wanted to commit suicide and wanted to take others down with them. But, it is part of ISIL’s strategy to have people that they can deploy, directly, that they can support directly, as well as to encourage and provide indirect direction and incitement to individuals. They will claim credit for a lot of things and they feel as though this is part of their brand.

Therein is the rub. If this is part of ISIS’ strategy, then having the media — and FBI (or, in other countries, other security organizations) — give them credit for it only serves to play to their strength.

Both Brennan and Temple-Raston remained silent about FBI’s role in this process, leaking details about affiliation with ISIS. But that — and the budget driving impulse that is a part of the motivation for it — is as much a part of the problem as the media’s rush to label things ISIS.

Some Legislative Responses to Clinton’s Email Scandal

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The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

Hillary Promises Not to Order the Military (!?!) to Torture

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Though I agree with the general sentiment that Donald Trump should not be trusted with America’s nuclear codes, there’s a lot I loathed in Hillary’s foreign policy speech yesterday.

Her neat espousal of American exceptionalism, with the specter that another country could make decisions about our lives and jobs and safety, is especially rich coming from a woman who has negotiated several trade deals that give corporations the power to make decisions about our lives and jobs and safety.

I believe with all my heart that America is an exceptional country – that we’re still, in Lincoln’s words, the last, best hope of earth. We are not a country that cowers behind walls. We lead with purpose, and we prevail.

And if America doesn’t lead, we leave a vacuum – and that will either cause chaos, or other countries will rush in to fill the void. Then they’ll be the ones making the decisions about your lives and jobs and safety – and trust me, the choices they make will not be to our benefit.

That is not an outcome we can live with.

The rest of her riff on American exceptionalism — with weird claims like, “America’s network of allies is part of what makes us exceptional” and “Allies provide staging areas for our military” — is worth an entirely separate post.

Her cavalier invocation of dead bodies and prolonging depressions exhibits a lack of self-awareness.

I’m frankly baffled by her description of her plan to defeat ISIS, as well as her warnings elsewhere about allowing terrorists in Syria or emboldening ISIS, both of which past Hillary actions have done.

We need to lash up with our allies, and ensure our intelligence services are working hand-in-hand to dismantle the global network that supplies money, arms, propaganda and fighters to the terrorists. We need to win the battle in cyberspace.

[Applause]

And of course we need to strengthen our defenses here at home.

That – in a nutshell – is my plan for defeating ISIS.

Hillary never talks about how she’ll get the Saudis — one of those allies she wants to “lash up with” — to stop fostering terrorism. That seems like a first step.

I’m even more curious what she intends with “strengthening our defenses here at home,” especially coming just lines after she falsely claimed San Bernardino was an ISIS attack? We already arrest scores of people for their support for ISIS, for doing things like RTing ISIS propaganda. To do much more — and to find the San Bernardino couple before they attacked — would have required far more domestic spying. Is that what Hillary has planned?

But here’s the thing that most disturbs me about her hawkish speech. Note how she attacked Trump for his embrace of torture.

He has said that he would order our military to carry out torture and the murder of civilians who are related to suspected terrorists – even though those are war crimes.

[snip]

So it really matters that Donald Trump says things that go against our deepest-held values. It matters when he says he’ll order our military to murder the families of suspected terrorists. During the raid to kill bin Laden, when every second counted, our SEALs took the time to move the women and children in the compound to safety. Donald Trump may not get it, but that’s what honor looks like.

Two times in a formal, pre-written speech, delivered with tele-prompters, Hillary claimed Trump had said he’d order our military to carry out torture and murder of civilians. But that’s not what he said. He spoke generally, and when speaking of torture he has talked about “interrogators,” without reference to agency. Sure, that could mean DOD (and some DOD interrogators did torture under George Bush). It could also mean the FBI, the agency which currently leads high value interrogations and which John Brennan has said must have its “own processes and procedures and laws that govern its activities,” separate from the techniques permitted in the Army Field Manual.

But the assumption of everyone listening to Donald Trump’s promise to torture was that he’d ask CIA to do the business. Both former CIA Director Michael Hayden and current CIA Director John Brennan thought that’s what he meant, anyway.

While Hillary was Secretary of State, the government killed the son of Anwar al-Awlaki, effectively murdering the family of a suspected (dead) terrorist.

It’s bad enough that she’s lecturing Trump about our deepest-held values. But she’s also not promising to the one thing she appears to be promising: refusing to order the CIA — not the military — not to torture.

The (Former) Riyadh Station Chief Defends His Saudi Friends from Charges of Terrorism

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On Sunday, former CIA Riyadh Station Chief John Brennan had a remarkable appearance on Meet the Press. A big part of it — the second to last thing he and Chuck Todd discussed — was Brennan’s argument against the release of the 28 pages (“so-called,” Brennan calls them) showing that 9/11 was facilitated by at least one Saudi operative.

Brennan opposes their release in three ways. First, he falsely suggested that the 9/11 Commission investigated all the leads implicating the Saudis (and also pretends the “so-called 28 pages” got withheld for sources and methods and not to protect our buddies).

JOHN BRENNAN:

Those so-called 28 pages, one chapter in this joint inquiry that was put out in December of 2002, was addressing some of the preliminary findings and information that was gathered by this joint commission within the Congress. And this chapter was kept out because of concerns about sensitive source of methods, investigative actions. The investigation of 9/11 was still underway in late 2002.

I’m quite puzzled by Senator Graham and others because what that joint inquiry did was to tee up issues that were followed up on by the 9/11 Commission, as well as the 9/11 Review Commission. So these were thoroughly investigated and reviewed. It was a preliminary review that put information in there that was not corroborated, not vetted and not deemed to be accurate.

The 9/11 Commission didn’t even look at NSA for intercepts Thomas Drake has said were there. Nor did it adequately investigate what now appears to be a Sarasota cell. How can Brennan claim the Commission investigated all these leads?

Brennan then slightly misstates how absolute was the 9/11 Commission judgement on Saudi involvement, such as it was.

CHUCK TODD:

The information in those 28 pages, you think, are inaccurate information? Everything that’s in there is false?

JOHN BRENNAN:

No, I think there’s a combination of things that is accurate and inaccurate. And I think the 9/11 Commission took that joint inquiry, and those 28 pages or so, and followed through on the investigation. And they came out with a very clear judgment that there was no evidence that indicated that the Saudi government as an institution, or Saudi officials individually, had provided financial support to Al Qaeda.

The 9/11 Commission report judged,

It does not appear that any government other than the Taliban financially supported al Qaeda before 9/11, although some government’s may have contained al Qaeda sympathizers who turned a blind eye to al Qaeda’s fundraising activities. Saudi Arabia has long been considered the primary source of al Qaeda funding, but we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization. (This conclusion does not exclude the likelihood that charities with significant Saudi government sponsorship diverted funds to al Qaeda.)

That is, Brennan’s comment overstates whether any Saudi officials funded the attack, which the 9/11 Commission did not comment on (and the key paragraphs in underlying documents also remain classified).

Ultimately, though, the (former) Riyadh Station Chief argues it would be “very, very inaccurate” if anyone were to suggest the Saudis were involved in 9/11.

CHUCK TODD:

Are you concerned that the release of those pages will unfairly put the relationship in a damaged position?

JOHN BRENNAN:

I think some people may seize upon that uncorroborated, un-vetted information that was in there, that was basically just a collation of this information that came out of F.B.I. files, and to point to Saudi involvement, which I think would be very, very inaccurate.

Remember, for at least 8 years after 9/11 (including in the 9/11 report), it was the judgement of the intelligence community that Saudis were still the biggest funders for Al Qaeda. But the (former) Riyadh Station Chief argues it would be very, very inaccurate to suggest any Saudi involvement in the attack.

The whole thing was pathetic enough — Meet the Press propaganda worthy of Dick Cheney’s best exploitation of the form.

But it is all the more remarkable, coming as it did, after Brennan transitioned seamlessly from a victory lap about killing Osama bin Laden to “this new phenomenon of ISIL.”

CHUCK TODD:

You know, five years ago, I remember going to the White House and hearing cheers, hearing people gather in the streets of Washington, and it was happening in other cities. And there was a sense of relief. It was like this moment of, “Wow. Is this the end? Have we won whatever this was we were fighting, this war with Al Qaeda? Have we won?” Boy, it doesn’t feel that way five years later.

JOHN BRENNAN:

I remember that same evening. When I left that White House about midnight, it was as bright as day outside, and the chants of “U.S.A., U.S.A,” and, “C.I.A., C.I.A.” It was the culmination of a lot of very hard work by some very good people at C.I.A. and other agencies. And we have destroyed a large part of Al Qaeda. It is not completely eliminated, so we have to stay focused on what it can do. But now, with this new phenomenon of ISIL, this is going to continue to challenge us in the counterterrorism community for years to come.

I noted on Twitter during CIA’s propagandistic Twitter reenactment of their version of the bin Laden killing that, five years later, we’re still fighting the war against bin Laden. But Brennan wants you to forget that war, and pretend it’s all just ISIL.

Read more →

CIA Officers Didn’t Carry Out Waterboarding

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A lot of people are pointing to John Brennan’s assurances that CIA won’t ever torture again as if it means anything (usually ignoring Brennan’s motivation from institutional preservation, not efficacy or morality or legality).

CIA Director John Brennan told NBC News in an exclusive interview that his agency will not engage in harsh “enhanced interrogation” practices, including waterboarding, which critics call torture — even if ordered to by a future president.

“I will not agree to carry out some of these tactics and techniques I’ve heard bandied about because this institution needs to endure,” Brennan said.

[snip]

When asked specifically about waterboarding Brennan could not have been clearer.

“Absolutely, I would not agree to having any CIA officer carrying out waterboarding again,” he said.

There are a lot of reasons this doesn’t mean anything, starting with the fact that President Trump could easily fire Brennan and replace him with someone pro torture.

But it’s funny, too, because Brennan’s assurances about waterboarding would hold true even for the period when CIA was waterboarding detainees. Because CIA officers didn’t do the waterboarding.

As a reminder, at least four detainees were known to be waterboarded under the Gloves Come Off Memorandum of Notification. The first, Ibn Sheikh al-Libi, was waterboarded by Egyptian intelligence, though with Americans present.

The others were waterboarded as part of torture led by Mitchell and Jessen, who were not CIA officers, but instead contractors. CIA officers were definitely involved in that torture (as they were present for our outsourced Egyptian torture). But the torture was technically done by contractors.

Don’t get me wrong: CIA officers did engage in a whole lot of torture directly.

But Brennan’s squirmy language should only emphasize the fact that even when CIA was in the business of waterboarding, CIA officers didn’t do the waterboarding. So Brennan’s guarantees that CIA officers won’t do so in the future are pretty meaningless guarantees.