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The Timing of CIA’s Discovery Its Paramilitary Ops Fail

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Mark Mazzetti reports that in 2012 and 2013, CIA did a study that one of its favorite means of covert intervention — arming rebels — pretty much doesn’t work.

An internal C.I.A. study has found that it rarely works.

The still-classified review, one of several C.I.A. studies commissioned in 2012 and 2013 in the midst of the Obama administration’s protracted debate about whether to wade into the Syrian civil war, concluded that many past attempts by the agency to arm foreign forces covertly had a minimal impact on the long-term outcome of a conflict. They were even less effective, the report found, when the militias fought without any direct American support on the ground.

The findings of the study, described in recent weeks by current and former American government officials, were presented in the White House Situation Room and led to deep skepticism among some senior Obama administration officials about the wisdom of arming and training members of a fractured Syrian opposition.

But in April 2013, President Obama authorized the C.I.A. to begin a program to arm the rebels at a base in Jordan, and more recently the administration decided to expand the training mission with a larger parallel Pentagon program in Saudi Arabia to train “vetted” rebels to battle fighters of the Islamic State, with the aim of training approximately 5,000 rebel troops per year.

The only “success” CIA could find was the mujahadeen ousting the Russians in Afghanistan.

Goodie.

I’m particularly interested in the timing of all this.

Mazzetti says there were multiple studies done in 2012 — at which point David Petraeus was CIA Director, and was pushing to arm rebels in Syria — and 2013 — by which point John Brennan had replaced Petraeus.

So the timing looks something like this:

2012: CIA starts doing studies on how crappy their covert ops have been

2012: Hillary and Petraus both push Obama to arm Syrians

2012: Benghazi attack targets CIA officers ostensibly working to reclaim weapons used to oust Qaddafi but reportedly to send them on to Syria

2012: Petraeus ousted for reasons that probably aren’t primarily that he fucked his biographer

2013: John Brennan nominated to serve as CIA Director. As part of his confirmation process, the follow exchange takes place (Bark Mikulski asked a similar question in the hearing itself).

Question 7: What role do you see for the CIA in paramilitary-style intelligence activities or covert action?

The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.

[snip]

Question 8: What are you views on what some have described as the increased “militarization” of the CIA mission following the September 11, 2001 attacks?

In my view, the CIA is the nation’s premier “intelligence” agency, and needs to remain so. While CIA needs to maintain a paramilitary capability to be able to carry out covert action as directed by the President, the CIA should not be used, in my view, to carry out traditional military activities.

April 2013: Obama signs finding authorizing an op CIA knew wouldn’t work

June 2013: Covert op begins, per Chuck Hagel confirmation of it in August

As Mazzetti explains, the amazing discovery that CIA’s covert ops are often useless was one reason Obama delayed so long before he authorized one anyway (and his close confidante Brennan implemented it).

But I think two other things are likely (in addition to Assad’s alleged use of chemical weapons in both April and August 2013). One, it wasn’t so much Obama was opposed to such an op; he was just opposed to the way Petraeus (who oversaw the latter part of the Libya op) and Hillary implemented it. (Note, Mazzetti specifically notes both Hillary and Leon Panetta’s claims they warned Obama to respond earlier in Syria, so Mazzetti’s piece may be a response to that.) And just as likely, the Saudi-tied rising strength in ISIL forced our hand, requiring us to be able to offer a legitimate competitor to their paid terrorists.

Particularly given the mujadadeen “success” apparently cited in the CIA study, I find that rather ominous.

Moral Rectitude? No, John Brennan is a Honey Badger

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A tweet yesterday by Arif Rafiq noted that there was a US drone strike in North Waziristan yesterday just a few hours before Pakistani Prime Minister Nawaz Sharif would visit a spot only 20 miles away. At the New York Times article Rafiq linked:

Prime Minister Nawaz Sharif of Pakistan visited a military camp in the tribal district of North Waziristan on Thursday in what was seen as a pointed show of support and an attempt to bolster his troubled relationship with the country’s top generals.

The rare visit by Mr. Sharif to the tribal belt came three months after the military launched a sweeping offensive against the Taliban in North Waziristan, a hub of Taliban and Qaeda activity.

/snip/

His visit to Miram Shah, the main town in North Waziristan, on Thursday showed Mr. Sharif standing staunchly behind the country’s generals. “Our courageous troops are fighting a difficult war against an invisible enemy,” he told soldiers. “This is a war for the survival of Pakistan.”

Pakistan’s military claims that 80 percent of North Waziristan has been wrested from the militants and that at least 1,000 militants have been killed in the offensive, known as Zarb-e-Azb, which started on June 15. The figures are impossible to independently verify because the area is out of bounds for most reporters.

According to Pakistan Today, Sharif was emphatic in claiming victory by Pakistan over the militants they were attacking in North Waziristan:

Praising Pakistan Army for the success of Operation Zarb-e-Azb, the prime minister said he visited areas of North Waziristan which used to be havens for terrorists but now the army had purged all anti-state elements from there.

Despite Sharif’s claim of total victory over the terrorists, the US obviously feels the job is not complete, as drone strikes this week have been heavy, including the strike Rafiq notes in the Times article as only 20 miles from where Sharif would visit a few hours later.

The beginning of this week was marked by observance of Eid-ul-Azha, but the religious holiday had no bearing on the timing of drone strikes by the CIA. This Express Tribune article notes that US drone strikes in North Waziristan killed five in the pre-dawn hours Monday, another five later on Monday, six early Tuesday, and another eight also on Tuesday.

And then as AP recounts, there were two separate attacks overnight Wednesday and Thursday that killed five more. Near the end of the Times article linked by Rafiq, we get the observation of how close in location and timing it was to Sharif’s visit:

In an unexpected turn, Mr. Sharif’s visit also had an unusual dimension in terms of his relationship with the United States. Hours before he arrived, an American drone fired a missile at a vehicle in Datta Khel, 20 miles west of the camp where Mr. Sharif visited. Four people were killed and two were wounded, a Pakistani security official said on the condition of anonymity.

Clearly, when it comes to drone strikes in Pakistan, John Brennan is a honey badger. He don’t care about religious holidays. He don’t care about the Pakistani military claiming to have established control of North Waziristan. He don’t care about the Prime Minister entering the area. John Brennan just don’t care.

Who ever heard of a honey badger with moral rectitude?

In Telling of Brennan Fit, Panetta Somehow Forgets the Torture Documents Stolen Back for the White House

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As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.

With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.

To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.

She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.

When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.

“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”

I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.

[snip]

It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.

Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.

There are just three problems with this story.

First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.

In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.

In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.

After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.

And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.

We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.

While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.

Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.

Hate to Tell SSCI I Told Them So, John Brennan Lying and Spying Edition

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The morning of John Brennan’s confirmation hearing, I posted what I deemed the 5 most important questions to ask him. Three were: Will you stop lying, how much of Dick Cheney’s illegal wiretap program did you run, and will you permit CIA to spy on Americans.

1) Do you plan to continue lying to Americans?

You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)

In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?

[snip]

4) What role did you have in Bush’s illegal wiretap program?The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.

What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)

5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?

In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?

Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans?  (More background)

As it turns out, all three questions are directly pertinent for the latest dust-up between SSCI and the CIA Director.

Tensions between the CIA and its congressional overseers erupted anew this week when CIA Director John Brennan refused to tell lawmakers who authorized intrusions into computers used by the Senate Intelligence Committee to compile a damning report on the spy agency’s interrogation program.

The confrontation, which took place during a closed-door meeting on Tuesday, came as the sides continue to spar over the report’s public release, providing further proof of the unprecedented deterioration in relations between the CIA and Capitol Hill.

After the meeting, several senators were so incensed at Brennan that they confirmed the row and all but accused the nation’s top spy of defying Congress.

“I’m concerned there’s disrespect towards the Congress,” Sen. Carl Levin, D-Mich., who also serves as chairman of the Senate Armed Services Committee, told McClatchy. “I think it’s arrogant, I think it’s unacceptable.”

And you know what, Senator Levin? Brennan doesn’t actually care what you think. This Committee confirmed him last year, at a point where it was already clear he would lie and spy if he thought it would help the CIA. That was the moment to win respect from Brennan.

But at this point — especially because it seems Brennan has confidence his boss won’t fire him — he knows he can get away with this.

Behold, John Brennan’s Scary Memo!

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Brennan with TortureI’ve been writing for a long time about the “Scary Memos” the government used to justify its dragnet.

As the Joint IG Report described, they started in tandem with George Bush’s illegal wiretap program, and were written before each 45-day reauthorization to argue the threat to the US was serious enough to dismiss any Fourth Amendment concerns that the President was wiretapping Americans domestically.

Jack Goldsmith relied on one for his May 6, 2004 memo reauthorizing some — but not all — of the dragnet.

Yesterday, James Clapper’s office released the Scary Memo included in the FISA Court application to authorize the Internet dragnet just two months later, on July 14, 2004.

ODNI calls it the Tenet Declaration — indeed it is signed by him (which, given that he left government on July 11, 2004 and that final FISC applications tend to be submitted days before their approval, may suggest signing this Scary Memo was among the very last things he did as CIA Director).

Yet the Memo would have been written by the Terrorist Threat Integration Center, then headed by John Brennan.

Much of the Scary Memo describes a “possible imminent threat” that DOJ plans to counter by,

seeking authority from this Court [redacted] to install and use pen register and trap and trace devices to support FBI investigations to identify [redacted], in the United States and abroad, by obtaining the metadata regarding their electronic communications.

There is no mention of NSA. There is no mention that the program operated without legal basis for the previous 2.5 years. And there’s a very curious redaction after “this Court;” perhaps CIA also made a show of having the President authorize it, so as to sustain a claim that all this could be conducted exclusively on Presidential authority?

After dropping mention of WMD — anthrax! fissile material! chemical weapons! — the Scary Memo admits it has no real details about this “possible imminent threat.”

[W]e have no specific information regarding the exact times, targets, or tactics for those planned attacks, we have gathered and continue to gather intelligence that leads us to believe that the next terrorist attack or attacks on US soil could be imminent.

[snip]

Reporting [redacted] does not provide specific information on the targets to be hit or methods to be used in the US attack or attacks.

But based on “detainee statements and [redacted] public statements since 9/11,” the Scary Memo lays out, CIA believes al Qaeda (curiously, sometimes they redact al Qaeda, sometimes they don’t) wants to target symbols of US power that would negatively impact the US economy and cause mass casualties and spread fear.

It took an “intelligence” agency to come up with that.

Based on that “intelligence,” it appears, but not on any solid evidence, CIA concludes that the Presidential conventions would make juicy targets for al Qaeda.

Attacks against or in the host cities for the Democratic and Republican Party conventions would be especially attractive to [redacted].

And because of that — because CIA’s “intelligence” has decided a terrorist group likes to launch attacks that cause terror and therefore must be targeting the Presidential conventions — the FBI (though of course it’s really the NSA) needs to hunt out “sleeper cells.”

Identifying and disrupting the North American-based cells involved in tactical planning offers the most direct path to stopping an attack or attacks against the US homeland. Numerous credible intelligence reports since 9/11 indicate [redacted] has “sleepers” in North America. We judge that these “sleepers” have been in North American, and the US in general, for much of the past two years. We base our judgment, in part, [redacted] as well as on information [redacted] that [redacted] had operatives here.

Before we get to what led CIA to suggest the US was targeted, step back and look at this intelligence for a moment. This report mentions detainee reporting twice. It redacts the name of what are probably detainees in several places. Indeed, several of the claims in this report appear to match those from the exactly contemporaneous document CIA did on Khalid Sheikh Mohammed to justify its torture program, thus must come from him.

Yet, over a year after KSM had been allegedly rendered completely cooperative via waterboarding, CIA still did not know the answer to a question that KSM was probably one of the only people alive who could answer.

We continue to investigate whether the August 2001 arrest of Zacarias Moussaoui may have accelerated the timetable for the 9/11 attacks because he knew of al-Qa’ida’s intention to use commercial aircraft as weapons.

Nevertheless, they believed KSM was being totally straight up and forthcoming.

Note, too, the CIA relied on claims of sleeper cells that were then two years old, dating back to the time they were torturing Abu Zubaydah, whom we know did give “intelligence” about sleeper cells.

To be sure, we know CIA’s claims of a “possible imminent threat” in the US do not derive exclusively from CIA’s earlier torture (though CIA had claimed, just months earlier, that their best intelligence came from that source for the Inspector General’s report).

Less than 3 weeks after this Scary Memo was written, we’d begin to see public notice of this “possible imminent threat,” when Tom Ridge raised the threat level on August 1, 2004 because of an election year plot, purportedly in response to the capture of Muhammad Naeem Noor Khan in Pakistan on July 13 (which could only have been included in “the Tenet declaration” if Khan were secretly arrested and flipped earlier, because Tenet was no longer CIA Director on July 13). But what little basis the election year plot had in any reality dated back to the December 2003 British arrest and beating of Khan’s cousin, Babar Ahmed, which would lead to both Khan’s eventual capture as well as the British surveillance of Dhiren Barot as early as June 10 and the latter’s premature arrest on August 3. KSM’s nephew, Musaad Aruchi, was also handed over by Pakistan to CIA on June 12; best as I know, he remains among those permanently disappeared in CIA’s torture program. This would also lead to a new round of torture memos reauthorizing everything that had been approved in the August 1, 2002 Bybee Memo plus some.

The claims the US was a target derive, based on the reporting in the NYT, from Dhiren Barot. Barot apparently did want to launch a terrorist attack. Both KSM and Hambali had identified Barot during interrogations in 2003, and he had scouted out attack sites in the US in 2000 and 2001. But his active plots in 2004 were all focused on the UK. In 2007 the Brits reduced his sentence because his plots weren’t really all that active or realistic.

Which is to say this election plot — the Scary Plot that drives the Scary Memo that provided the excuse for rolling out (or rather, giving judicial approval for continuing) an Internet dragnet that would one day encompass all Americans — arose in significant part from 2003 torture-influenced interrogations that led to the real world detention of men who had contemplated attacking the US in 2000, but by 2004 were aspirationally plotting to attack the UK, not the US, as well as men who may have been plotting in Pakistan but were not in the US.

That, plus vague references to claims that surely were torture derived, is what John Brennan appears to have laid out in his case for legally justifying a US dragnet.

You see, it’s actually John Brennan’s dragnet — it all goes back to his Scary Memo — and his role in it is presumably one of the reasons he doesn’t want us to know how many lies went into the CIA torture program.

Brennan’s Scary Memo provides yet more evidence how closely linked are torture and the surveillance of every American.

How Abu Zubaydah’s Torture Put CIA and FBI in NSA’s Databases

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I said yesterday that the plan, going as far back as 2002, was to let CIA and FBI tap right into NSA’s data. I base that on this explanation from Keith Alexander, which he included in his declaration accompanying the End to End Report that was submitted sometime after October 30, 2009.

By the fall of 2002, the Intelligence Community had grown increasingly concerned about the potential for further attacks on the United States. For example, during 10 to 24 September 2002, the Government raised the homeland security threat condition to “orange,” indicating a high likelihood of attack. In this context, in October 2002 the Directors of NSA, CIA, and FBI established an Inter-Agency Review Group to examine information sharing [redacted] The group’s top recommendation was that NSA create a common target knowledge database to allow joint research and information exchanges [redacted].

Of course, we now know that the threat level was high in September 2002 because the government was chasing down a bunch of false leads from Abu Zubaydah’s torture.

Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

“We spent millions of dollars chasing false alarms,” one former intelligence official said.

In other words, the justification for creating a database where CIA and FBI could directly access much of NSA’s data was a mirage, one created by CIA’s own torture.

All that’s separate from the question of whether CIA and FBI should have access directly to NSA’s data. Perhaps it makes us more responsive. Perhaps it perpetuates this process of chasing ghosts. That’s a debate we should have based on actual results, not the tortured false confessions of a decade past.

But it’s a testament to two things: the way in which torture created the illusion of danger, and the degree to which torture — and threat claims based on it — have secretly served as the basis the Executive uses to demand the FISA Court permit it to extend the dragnet.

Even the current CIA Director has admitted this to be true — though without explicitly laying out the import of it. Isn’t it time we start acknowledging this — and reassessing the civil liberties damage done because of it — rather than keeping it hidden under redactions?

Working Thread, Internet Dragnet Dump 2: 2004 Documents

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This will be a closer working thread on documents released yesterday.

X: Initial Dragnet Application (prior to July 14, 2004)

(2) From the start, the government said they wanted to disseminate the dragnet info, perhaps to tag into FBI’s investigative authorities.

(2) The footnote defining metadata hides all the stuff not associated with “standard e-mails.”

(4) The application discusses the briefing I discussed here, attended by (among others) John Brennan.

(5) The application is not submitted by a lawyer, but by Michael Hayden.

(6) The government hasn’t released a Tenet submission; back in November it hid that this submission was from him.

(16) ODNI maintains that the fictional example of metadata is classified.

(18) Originally access was restricted by making the metadata accessible only by 2 admin login accounts. That’s probably a carry-over from the compartments of the illegal program.

(20) RAS approval assigned to the same 7 authorizers that were in place for the beginning of the phone dragnet in 2006.

(21) They’re hiding at least one kind of Internet metadata.

(23) Metadata originally accessible for only 18 months. Is that what they used for the illegal dragnet?

Y. Memo of Law in Support of Original Dragnet Application, before July 14, 2004

(4) The government claims that only email metadata related to terrorism will be seen. By definition, that means anything returned in a query would be related to counterterrorism and therefore game for dissemination.

(4) This is the jist of the illegal use of PRTT for the dragnet:

Nevertheless, it involves nothing more than adapting the traditional tools of FISA to meet an unprecedented challenge and does so in a way that promotes both of the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.

This claim is followed by a 5-page redaction, which is mighty interesting as it would have to explain why this judicial review was so useful.

(9) Footnote 5 again makes it clear that this involves email and other online communications.

(12) This language is remarkable for a secret court document.

Collecting and archiving meta data is thus the best avenue for solving this fundamental problem: although investigators do know know exactly where the terrorists’ communications are hiding in the billions of bits of data flowing through the United States today, we do know that they are there, and if we archive the data now, we will be able to use it in a targeted way to find the terrorists tomorrow.

(20) This language is particularly important given debates about USA Freedom.

Nothing in the definitions of pen registers or trap and trace devices requires that the “instrument” or “facility” on which the device is placed carry the communications solely of a single user.

(20) This section really tries to constrain the Court.

Unlike certain other certifications made in other contexts under the statute, see, e.g., U.S.C. § 1805(a)(5), FISA does not subject the certification of relevance to any review by the Court.

Read more →

The President Who Demanded Stanley McChrystal’s Resignation Is Not Sheltering the NatSec Bureaucracy

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As I have repeatedly noted, I think President Obama will protect John Brennan — and the CIA more generally — because of the mutual complicity built in between CIA and the White House over covert ops.

It’s not just that CIA knows the full details of the drone killings Obama authorized on his sole authority. It’s also that the CIA is still protecting the Office of the Presidency’s role in torture by withholding from the Senate documents over which the White House might — but did not formally — claim Executive Privilege. Obama did the same thing when he went to some lengths to prevent a very short phrase making it clear torture was Presidentially-authorized from being released in 2009; it wasn’t just the Finding that still authorized his drone strikes the President was protecting, but the Office that George Bush sullied by approving torture.

I also think Obama will stand by Brennan because they have worked closely so long Brennan is one of Obama’s guys.

Bloomberg View’s Jonathan Bernstein doesn’t agree, however. After dismissing Conor Friedersdorf’s version of the mutual incrimination argument, he suggests Obama is simply demonstrating to the national security bureaucracy he’s on their side.

Obama is concerned -– in my view, overly so -– with demonstrating to the intelligence bureaucracy, the broader national security bureaucracy, and the bureaucracy in general, that he is on their side. The basic impulse to stand up for the people he appointed isn’t a bad one; nor is the impulse to demonstrate to the intelligence community that he is no wild-eyed peacenik softie who opposes the work they do. For one thing, he’s more likely to effect change in national security areas if experts in the government believe he’s at least sympathetic to them as individuals and to their basic goals, even if he questions some of the George W.Bush-era (or earlier) methods. For another, the ability of bureaucrats to hurt the president with leaks doesn’t depend on the existence of deep dark secrets. Every president is vulnerable to selective leaks and a drumbeat of steady negative interpretations from the bureaucracy.

And yet, overdoing support for the bureaucracy can have severe costs. On torture, for example, emphasizing the good intentions of those faced with difficult choices during the last decade makes sense. But failing to take action, and leaving bureaucrats with serious liabilities because the status of their past actions is unresolved, only may have made reassuring them of presidential support increasingly necessary. That’s not a healthy situation.

Again: some of the incentive to (at least at first) stand up for presidential appointees is inherent in the presidency, and a healthy thing to do even when the president believes people have misbehaved and should go. But throughout his presidency, Obama has been overly skittish when it comes to potentially crossing his national security bureaucracy, and I strongly suspect that torture and other Bush-era abuses are both part of the original cause and will cause more of that timidity down the road.

Obama has been overly skittish when it comes to crossing his NatSec bureaucracy?

First, as I have already noted, Obama was perfectly happy demanding David Petraeus’ resignation for fucking his biographer. While I have my doubts whether that was really the reason — and while by firing him, Obama undercut a potential 2012 rival — he didn’t shy away from firing a man with some of the best PR in DC.

You might also ask the 19 top Generals and Admirals Obama has fired (most with the help of Bob Gates; also note the 20th on this list is Petraeus) — so many that conservatives accuse him of “purging” — whether he’s squeamish about crossing the NatSec bureaucracy. And while Micah Zenko’s comment on Twitter is correct that intelligence officials have largely escaped this treatment, Obama seemed happy to use  Michael Leiter’s National Counterterrorism Center’s failure to stop the UndieBomb attack to fire then Director of National Intelligence Dennis Blair.

President Obama is not a man afraid to fire members of the national security bureaucracy.

The starkest contrast with Brennan’s treatment comes from the case of Stanley McChrystal.

Obama demanded McChrystal’s resignation not because his night raids were exacerbating extremism in Afghanistan. Not because many service members felt he had left them exposed. Not because, even then, it was clear the surge in Afghanistan was going to fail.

Obama demanded McChrystal’s resignation because Michael Hastings exposed McChrystal and his top aides (including Michael Flynn, who quit in April because of differences on policy) being insubordinate. Obama demanded McChrystal’s resignation because doing so was necessary to maintain the primacy of civilian control — like separation of powers, one of the bedrocks ensuring national security doesn’t trump democracy.

That, to me, is the important takeaway from comparing McChrystal’s fate with Brennan’s.

When a top member of the national security bureaucracy challenged the control of the civilian executive, he got canned, appropriately, in my opinion.

But when the Director of the CIA permitted his Agency to strike at the core of the separation of powers by investigating its overseers, Obama offered his support. Obama may have fired a top general for threatening Executive authority, but he has supported a top aide after he threatened Legislative authority.

You can come up with any number of explanations why Obama did that. But being afraid of taking on his National Security bureaucracy — as distinct from taking on the intelligence agencies, as Obama chose not to do when Clapper lied or when Keith Alexander oversaw the leaking of the family jewels even while getting pwned in his core cyberdefense capacity — is not the explanation.

Obama has proven to have no qualms about upsetting his national security bureaucracy. Just that part of it run covertly.

Under Clapper’s Continuous Monitoring CIA Could Continuously Monitor SSCI on CIA Network

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As I pointed out the other day, the CIA IG Report on spying on the Senate Intelligence Committee appears to say the egregious spying happened after John Brennan told Dianne Feinstein and Saxby Chambliss on January 15 CIA had been spying on SSCI.

Agency Access to Files on the SSCI RDINet:

Five Agency employees, two attorneys and three information technology (IT) staff members, improperly accessed or caused access to the SSCI Majority staff shared drives on the RDINet.

Agency Crimes Report on Alleged Misconduct by SSCI Staff:

The Agency filed a crimes report with the DOJ, as required by Executive Order 12333 and the 1995 Crimes Reporting Memorandum between the DOJ and the Intelligence Community, reporting that SSCI staff members may have improperly accessed Agency information on the RDINet. However, the factual basis for the referral was not supported, as the author of the referral had been provided inaccurate information on which the letter was based. After review, the DOJ declined to open a criminal investigation of the matter alleged in the crimes report.

Office of Security Review of SSCI Staff Activity:

Subsequent to directive by the D/CIA to halt the Agency review of SSCI staff access to the RDINet, and unaware of the D/CIA’s direction, the Office of Security conducted a limited investigation of SSCI activities on the RDINet. That effort included a keyword search of all and a review of some of the emails of SSCI Majority staff members on the RDINet system.

With that in mind, consider this passage of James Clapper’s July 25, 2014 response to Chuck Grassley and Ron Wyden’s concerns about Clapper’s new ongoing spying on clearance holders.

With respect to your second question about monitoring of Members of Congress and Legislative Branch employees, in general those individuals will not be subject to [User Activity Monitoring] because their classified networks are not included in the definition of national security systems (NSS) for which monitoring is required.

[snip]

Because no internally owned or operated Legislative branch network qualifies as a national security system, UAM by the Executive Branch is accordingly neither required nor conducted. To be clear, however, when Legislative Branch personnel access a national security system used or operated by the Executive Branch, they are of course subject to UAM on that particular system.

CIA’s spying on SSCI took place on CIA’s RDI network, not on the SSCI one. SSCI had originally demanded they be given the documents pertaining to the torture program, but ultimately Leon Panetta required them to work on a CIA network, as Dianne Feinstein explained earlier this year.

The committee’s preference was for the CIA to turn over all responsive documents to the committee’s office, as had been done in previous committee investigations.

Director Panetta proposed an alternative arrangement: to provide literally millions of pages of operational cables, internal emails, memos, and other documents pursuant to the committee’s document requests at a secure location in Northern Virginia. We agreed, but insisted on several conditions and protections to ensure the integrity of this congressional investigation.

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

It was this computer network that, notwithstanding our agreement with Director Panetta, was searched by the CIA this past January,

Presumably, those limits on access should have prevented CIA’s IT guys from sharing information about what SSCI was doing on the network. But it’s not clear they would override Clapper’s UAM.

Remember, too, when Brennan first explained how this spying didn’t qualify as a violation of the Computer Fraud and Abuse Act, he said CIA could conduct “lawfully authorized … protective … activity” in the US. Presumably like UAM.

I have no idea whether this explains why CIA’s IG retracted what Feinstein said had been his own criminal referral or not. But I do wonder whether the CIA has self-excused some of its spying on SSCI in the interest of continuous user monitoring?

If so, it would be the height of irony, as UAM did not discover either Chelsea Manning’s or Edward Snowden’s leaks. Imagine if the only leakers the Intelligence Community ever found were their own overseers?

Say, Why Should Mikey Hayden Get a Say on Torture that Purportedly Preceded Him?

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My favorite call for John Brennan’s head thus far comes from Fred Fleitz, who helped John Bolton sex up WMD claims leading into the Iraq War.  He says John Brennan has to resign not just to shore up CIA’s relations with Congress, but also NSA’s.

I believe CIA director John Brennan and agency officials involved in the monitoring of computers used by the SSCI staff must resign to help mend the CIA’s relationship with Congress. Such resignations would go a long way toward restoring the confidence of the SSCI in the CIA and, it is to be hoped, would win the agency and the National Security Agency some crucial allies in both houses of Congress to fend off several ill-advised intelligence-reform proposals currently under discussion there.

But that’s not my favorite part. Nor is where this “intelligence” professional says a report voted out with support from John McCain (in the first vote) and Susan Collins (in the second) is a Democratic vote. Nor is the bit where Fleitz claims the program was properly briefed, which it wasn’t.

My favorite part is Fleitz’ conflicting claims about Michael Hayden.

The main focus of the SSCI probe reportedly is to prove Democratic claims that the effectiveness of the enhanced-interrogation program has been exaggerated. Former CIA director Michael Hayden and other former senior CIA officials involved in the enhanced-interrogation program dispute this. According to Hayden, as late as 2006 fully half of the government’s knowledge about the structure and activities of al-Qaeda came from harsh interrogations.

Despite their firsthand knowledge of the enhanced-interrogation program, there is no input in the SSCI report from Hayden, former CIA general counsel John Rizzo, or other CIA officials, since the report is based solely on an examination of documents.

Assertion 1) Michael Hayden claims half of the government’s knowledge about al Qaeda came from torture, meaning no more than half came from the illegal torture he was conducting at the time over at NSA (and also meaning that relatively more intelligence has come in from SIGINT since Hayden left).

Assertion 2) Michael Hayden, whose entire CIA tenure post-dated the Detainee Treatment Act that made the torture program illegal, should have some say in a torture report.

Maybe Hayden was spying on the CIA while he was in charge of NSA. Or maybe (ok, in fact) Hayden continued torture after such time as Congress made it doubly illegal.

But in the same way that Cofer Black should not need to have a say in torture if the CIA’s false narrative were not false, Michael Hayden shouldn’t either.

Man, as much as this report is demonstrating how much CIA lies and how useless their torture program was, it also demonstrates the misnomer of the whole “intelligence” label.