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White Paper Cites John Brennan Speech Defending Import of Transparency, FOIA, Declassified OLC Memos

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I’ve been out addressing an imminent toner cartridge emergency and taping Al Jazeera English (it’ll be on tonight at 7:30). So I haven’t yet done my timeline of the varying authorizations to kill Anwar al-Awlaki.

But I wanted to look at one citation in the white paper which I find particularly amusing.

In addition, the United States retains its authority to use force against al-Qa’ida and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. See Hamdan v. Rumsfeld, 548 US 557 628-31 (2006) (holding that a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is an armed conflict “not of an international character” (quoting Common Article 3 of the Geneva Conventions) because it is not a “clash between nations”). Any US operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. See John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept . 16, 2011) (“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”

There are a number of things that noted legal scholar John Brennan said in this speech DOJ claims authorizes John Brennan (who presumably is the “informed, high-level official” described as judge and jury in this white paper) to kill Americans.

There’s this:

Now, I am not a lawyer, despite Dan’s best efforts.  

There’s his argument that only by adhering to the rule of law will we beat the terrorists, because it provides an alternative to the twisted world view of Al Qaeda.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people. And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida. Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford. Indeed, President Obama has made it clear—we must reject the false choice between our values and our security.

There’s his suggestion that rule of law depends on transparency.

Our democratic values also include—and our national security demands—open and transparent government. Read more →

Inadequate Briefing on the Drone Program Shows Congress Hasn’t Fixed the Gloves Come Off MON

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I need to finish my series (post 1, post 2, post 3, post 4, post 5, post 6) on the Obama Administration’s efforts to hide what I’ve dubbed the “Gloves Come Off” Memorandum of Notification. As I described, the MON purportedly gave CIA authority to do a whole slew of things, but left it up to the CIA to decide how to implement the programs Bush authorized. And rather than giving the Intelligence Committees written notification of the details of the programs, CIA instead gave just the Gang of Four deceptive briefings on the programs, which not only gave a misleading sense of the programs, but also prevented Congress from being able to limit the programs by refusing to fund the activities.

Yet, as MadDog and I were discussing in the comments to this post, these aspects of the MON set up did not entirely elude the attention of Congressional overseers. In fact, the very first Democrat to be briefed that torture had been used (remember, Pelosi got briefed it might be used prospectively) asked questions that went to the heart of the problem with the structure of the MON.

The CIA won’t tell Jane Harman whether the President approved torture from a policy standpoint

Jane Harman was first briefed on the torture program, with Porter Goss, on February 5, 2003. We don’t actually know what transpired in that briefing because CIA never finalized a formal record of the briefing. But five days after the briefing, Harman wrote a letter to CIA General Counsel Scott Muller. In addition to using a word for the torture program CIA has redacted and objecting to the destruction of the torture tapes, Harman asked questions that should have elicited a response revealing the Gloves Come Off MON was what authorized the torture program.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

The whole point of a MON, after all, was to get the President on the record asserting that the programs authorized by it are “necessary to support identifiable foreign policy objectives of the United States and [are] important to the national security of the United States.” Here, Harman was asking whether the President was part of a policy review on torture.

Just over a week after Harman sent this letter, the CIA met with the White House to decide how to respond to Harman’s letter.

Now, granted, Harman’s question did not explicitly ask about a MON. But the CIA did not even answer the question she did ask. Muller basically told her policy had “been addressed within the Executive Branch” without saying anything about Bush’s role in it.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Kudos to Harman for actually asking questions. But at this point, she should have known that there was something funky about the legally required MON for the torture program.

Two years later, she was still trying to get answers about the MON. In her third briefing on torture (PDF 29-31; see also this post)–on July 13, 2004, which was almost 3 weeks after Harman should have received the Inspector General Report–Muller first claimed that the legal foundation for the torture program were the Bybee Memos (he provided this explanation in the context of explaining considerations of whether the program complied with Article 16 of the Convention against Torture).

The General Counsel said that the effort was working effectively under the DOJ 1 August 2002 memo which was the legal foundation for the debriefings and interrogations.

But later in the briefing, Harman appears to have noted that the MON didn’t authorize torture, it only authorized capture and detention.

Rep. Harman noted that the [redaction] did not specify interrogations and only authorized capture and detention. Read more →

“The Patriot Act, which the president signed into law on October 2001”

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I only noticed two things that might generously be considered typos (as opposed to outright falsehoods or lies of omission) in Dick Cheney’s entire infernal tome. There’s this reference to an October 10, 2002 speech from Jello Jay Rockefeller in support of the Iraq war:

One of the most eloquent statements of the necessity of removing Saddam came from Senator Jay Rockefeller, the vice chairman of the Senate Intelligence Committee. (393)

On October 10, 2002, of course, Jello Jay was not yet Ranking Member of SSCI. Rather, Bob Graham was Chair. On October 10, 2002, Graham was saying the following about the war:

With sadness, I predict we will live to regret this day, Oct. 10, 2002, the day we stood by and we allowed these terrorist organizations to continue growing in the shadows.

[snip]

This timid resolution, I fear, will only increase the chance of Americans being killed, and that is not a burden of probability that I am prepared to take. Therefore I will vote no.

Yeah, Cheney’s misattribution probably wasn’t a typo, but instead a cynical attempt to pretend that the Democrat who had reviewed the intelligence behind the war most closely had backed the war, rather than correctly predicted it would heighten the threat of terrorism.

But I don’t think the grammatical error in the following passage, describing the relationship between Cheney’s illegal wiretap program and the PATRIOT Act (which turns 10 today), is really a typo either.

One of the first efforts we undertook after 9/11 to strengthen the country’s defenses was securing passage of the Patriot Act, which the president signed into law on October 2001.

Thus begins the passage in which Cheney describes the genesis of his illegal wiretap program. Of course, the passage should either say, “which the president signed into law on October 26, 2001,” or “which the president signed into law in October 2001.”
A minor point, but one that might suggest Cheney once had the date in there and then took it out.

You see, including the actual date would have really disrupted Cheney’s narrative, which suggests Congress passed the PATRIOT Act and only then did he begin thinking about how to use NSA to fight terrorism, which (implicitly) is why he didn’t include the illegal program in PATRIOT. After a description of how PATRIOT broke down the wall between intelligence and law enforcement in the first paragraph, Cheney continues,

I also thought it important to be sure the National Security Agency, or NSA, which is responsible for collecting intelligence about the communications of America’s adversaries, was doing everything possible to track the conversations of terrorists, so I asked George Tenet whether the NSA had all the authorities it needed. Tenet said he would check with General Mike Hayden, who was then director, and a short time later both of them came to see me in my office in the White House. Hayden explained that he had already made adjustments in the way NSA was collecting intelligence. Those adjustments were possible within NSA’s existing authorities, but additional authorities were needed in order to improve the coverage and effectiveness of the program.

A few paragraphs later, he continued.

With [Bush’s] approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed.

It’s only five paragraphs after Cheney’s description of PATRIOT that he provides the date that–had he actually included the date of the PATRIOT Act–would have made clear that the illegal program started before the signing of the PATRIOT Act.

On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, which the determination of the attorney general that it was lawful to do so, authorized the program for the first time.

Of course, Cheney leaves out some key details along the way, such as that Hayden briefed the House Intelligence Committee about what he was already doing on October 1, which elicited some questions from Nancy Pelosi, then the Ranking Member on HPSCI. Cheney doesn’t mention that Bush clamped down on briefing Congress on October 5. And he doesn’t mention that Pelosi raised questions about minimization, in writing, on October 11, but never got answers to those questions.

Cheney also doesn’t mention that David Kris, who was busy drafting the PATRIOT Act, got an OLC opinion on September 25 approving the one change to FISA he deemed necessary to make with the PATRIOT.

To reveal those details–the briefings to Congress, Pelosi’s questions, Kris’ ability to get FISA changed under PATRIOT–would have made it clear that the rest of the “legal approval” process Cheney describes could have–should have–instead been done with Congress as part of the PATRIOT Act. I may be nitpicking here, writing an absurdly long post about Cheney’s use of the wrong preposition. But Cheney’s choice to bypass Congress even as it was making changes to FISA remains the biggest piece of evidence that he knew he was engaging in an illegal program that Congress would not entirely approve.

There will be a number of retrospectives in “honor” of PATRIOT Act’s birthday today. ACLU’s got a nifty infographic (the image above is just one part of it).

But ACLU’s other “tribute” to the PATRIOT–a lawsuit to force the government to reveal its secret interpretation of PATRIOT Act–and Cheney’s typographical tell that he recognizes he deliberately chose not to get Congressional approval for the illegal wiretap program are even more important.

As horrible as the PATRIOT Act is, after all, both the Bush Administration and the Obama Administration have exceeded the plain meaning of the act. For ten years, then, it has not been enough that Congress has eagerly dealt away our civil liberties. But the Executive Branch will take even what Congress won’t give.

Rizzo’s Brief with Nancy Pelosi: Bush Didn’t Include Torture in the Finding Authorizing Torture

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I’m going to deal with John Rizzo’s purported “mea culpa” in three posts, one each for each of his regrets.

Rizzo’s first regret is that the CIA did not push the White House to allow it to brief the entire intelligence committees so they could, as Rizzo said, “allow the committees—compel them, really—to take a stand on the merits to either endorse the program or stop it in its tracks.”

It’s an argument I totally agree with. But to make his argument, Rizzo mobilizes some of the same lies about the CIA’s briefing of the torture program, notably about Nancy Pelosi. He does so, however, with a really spooky move.

Shortly thereafter, almost seven years after CIA first informed her about its employment of waterboarding and the other EITs, the Speaker of the House of Representatives, Nancy Pelosi, stood before the cameras and claimed that all CIA ever told her was that waterboarding was being “considered” as an interrogation tactic, not that it would be ever employed. Confronted with evidence to the contrary, the Speaker subsequently conceded that she had been informed about EITs from the outset but insisted she was always opposed to them but powerless to do anything to stop them. None of which was true, but in hindsight the Speaker’s moonwalk was hardly unforeseeable.

It’s the same old story turning the question of whether Pelosi was briefed prospectively or historically into a claim that “she had been informed about EITs from the outset” without mentioning that even Porter Goss’ version of the briefing is consistent with Pelosi’s claim that CIA didn’t tell them in September 2002 that they had already started using torture. Rizzo’s use of this tired tactic is all the worse considering that 1) it appears that he was not at the briefing in question, and 2) the CIA changed its record of the briefing after the fact.

In other words, Rizzo’s attack on Pelosi is total bullshit. Furthermore, the attack falsely suggests that CIA briefed Congress before torture started.

But his use of Pelosi to make this point is rather intriguing. Rizzo makes no mention of Bob Graham’s attempt to exercise oversight over the torture program, which was discouraged by the CIA and thwarted by Pat Roberts.

More significantly, Rizzo makes no mention of Jane Harman, who did object to the program but proved unable to “stop it in its tracks.”

Rizzo’s silence about CIA’s briefing to Harman–and her objection to the torture program–is more significant given something else he asserts in this piece.

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

Rizzo starts by invoking the September 17, 2001 Presidential Finding that authorized the CIA to capture and detain al Qaeda members. He tells us–this may be news, actually–that that Finding was briefed to the entire intelligence committees and to appropriations committees. But then he says that the torture part of that program “could only be shared” with the Gang of Eight.

The detail is interesting, by itself, for the way it contradicts Rizzo’s later (false) claim that “every other member of Congress” “would be kept in the dark” about the torture program. After all, the Leaders are also members of Congress, but if the CIA’s own error-ridden briefing list is to be believed, the only Leader who ever got briefed in that role was Bill Frist (while Appropriations Subcommittee Republicans Duncan Hunter, Ted Stevens, and Thad Cochran also got briefings, as well as John McCain).

The comment is more interesting for what it says about the Finding itself. The CIA has long suggested (and reporting has repeated) that that Finding authorized the torture program. But Rizzo is making it clear here that that Finding did not include authorization for the torture program. The oral briefings the Gang of Four got were the only way the way the President informed Congress about the torture program.

While it’s significant that Rizzo is here admitting that fact, we already knew it. We knew it because Jane Harman twice asked about a Finding on torture, once implicitly in 2003 when she asked “Have enhanced techniques been authorized and approved by the President?” and once in the briefing CIA gave her on July 13, 2004, when she,”noted that the [redacted–almost certainly the Finding] did not specify interrogations and only authorized capture and detention.”

In other words, Rizzo basically admits that the point Jane Harman appears to have made repeatedly was correct: the torture program had not been formally included in a Finding briefed to Congress.

Rizzo’s lies about briefing Congress don’t appear to be the issue here. Rather, the problem is that the Administration did not issue the legally required Finding to Congress.

Manning Protesters Sing to Obama: “We Paid Our Dues; Where’s Our Change?”

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Protestors sang their displeasure to Pres. Obama at a Bay Area fundraiser. (via yfrog)

At today’s presidential fundraiser in San Francisco, several attendees sang a song to Obama protesting Bradley Manning’s treatment. (From the White House pool report)

Mr. Obama was in the middle of his remarks when a woman in a white suit stood up and said, Mr. President we wrote you a song. POTUS tried to get her to wait until later, but she persisted and the table of 10 broke into a song that pointed out they’d just spent $5,000 donating to his campaign and went on to protest the treatment of Pfc. Bradley Manning.

The woman stayed standing as they sang. Mr. Obama looked to Ms. Pelosi and asked, Nancy did you do this? Ms. Pelosi had a look on her face, as she stared at the singing group, that definitely said she did not.

[snip]

The 10 singers then passed around 8.5×11 signs that said “Free Bradley Manning” or had a photo of him.

Then the woman in the white suit stripped off her jacket to reveal a black T-shirt that said Free Bradley Manning, with an image of him.

“We paid our dues. Where’s our change?” they sang.

USSS and WH staff had moved near the table at this point. The woman was escorted out. Two others left on their own. (The rest stayed and applauded at the end of POTUS’s speech.)

“That was a nice song,” a displeased Mr. Obama said.

“Now where was I?” POTUS asked.

As was indicated by that song, “Over the last 2 and a half years, change turned out to be tougher than we expected,” POTUS said.

Also, WTF? Why is Obama’s first instinct to blame Pelosi for this? Granted, Pelosi often takes stands in support of political prisoners, but to suggest a master fundraiser like Pelosi would embarrass the President at a fundraiser like this is just a real misunderstanding of her. (Even if it were only a lame attempt at deflection/humor, it is disrespectful and a tad dishonest.)

Not to mention the suggestion that people, particularly in liberal San Francisco, might not have the free will to craft a protest on their own.

Follow developments after the jump. . . . Read more →

The Compromise Intelligence Authorization

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As DDay noted, it looks like we’ll finally have an intelligence authorization bill. The bill is a partial win for Speaker Pelosi, as it makes full briefing to the Intelligence Committees within six months of the start of a program the default (though the Administration can still avoid doing so if it provides written rationale). And it includes at least a nod to Pelosi’s demand that GAO be giving some authority to review intelligence programs. Steven Aftergood calls the GAO access “a foothold.”

The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs,

It remains to be seen whether this compromise will give Congress enough new oversight powers to prevent the abuses that happened under Bush (and heck–I assume the Gang of Four, if not the Gang of Eight–has signed off on assassinating US citizens solely on the President’s say so, so it’s not clear that oversight will be any use in protecting the Constitution). But Jeff Stein reports both Pelosi and DiFi declaring victory, while the White House and DOD remain silent. Here’s Pelosi:

“In passing the Intelligence Authorization Act last night, the Senate upheld our first responsibility – to ensure the security of the American people – while addressing two key objectives,” Pelosi said in a statement Tuesday.

“It expands and improves the congressional notification process for covert action and provides the framework for GAO access to intelligence community information so that the GAO can conduct investigations, audits, and evaluations as requested by Congress,” Pelosi said.

Again, I remain skeptical, but at least this is better than nothing.

Think of it this way. Under these rules, the Bush White House would have had to tell the entire Intelligence Committees they were systematically torturing prisoners by February 1, 2003 (or at least admit in writing they hadn’t and wouldn’t inform the committees, rather than altering documents after the fact to pretend they had). Technically, they would have to have informed Congress of the September 17, 2001 finding dubiously used to authorize the torture program by March 17, 2002. As it happened, they apparently didn’t brief any Democrats that they were torturing prisoners until February 5, 2003, at which point the one they did brief (Jane Harman) objected in writing (and asked whether the President had signed off on the policy, which presumably meant she had never been briefed on the actual finding). We know Bob Graham had been proposing oversight of the interrogation program by that point, backed by a majority of the committee, even though he had no clue they were torturing (though Tony Blair apparently did). So it’s possible Congress would have at least demanded more information sooner about the torture under this system.

That may not have been enough to forestall Dick Cheney’s torture program. But it might have subjected it to at least a little more review.

At which point–as presumably has happened on Presidential hit lists–the blame for our egregious abuse of the Constitution would be more widely shared.

Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

If and When Democrats Keep the House, Conyers Should Remind Holder the Import of Congressional Oversight

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I realize the odds of Democrats keeping the House are not all that great. But I also know that the DCCC is far more competent than the RNCC; DCCC has managed to win just about every challenging election of late.

So let’s just say Democrats keep the House and with it John Conyers his gavel. I really hope he’ll make Eric Holder regret not only this inappropriate comment to Lamar Smith (I don’t care whether Democrats or Republicans are in charge, the Committees are there to exercise oversight, not “be nice” to the agencies they cover), but also the unnecessary disloyalty.

Maybe Conyers can start by asking Holder to either provide a more credible explanation for why Pittsburgh’s FBI office was lying about taking a picture at a peace rally with no premise to do so than the FBI provided to Inspector General Glenn Fine (more on this IG Report in a bit).

FBI officials, including the Pittsburgh office’s top lawyer, engaged in distinctly COINTELPRO-style tactics after the American Civil Liberties Union sued for the release of documents relating to the surveillance.Boiled down to their essence, those tactics involved officials generating post-dated “routing slips” and other paper to create a terrorism threat that didn’t exist.

Or as the inspector general put it, the FBI’s elaborate, “after-the-fact reconstruction” of the Pittsburgh events, designed to fabricate a counter-terrorism rationale for the rookie’s surveillance mission, “was not corroborated by any witnesses or contemporaneous documents.”

It was on the basis of their fabrication, moreover, that FBI Director Robert S. Mueller III gave “inaccurate and misleading” testimony to Congress, the IG said.

The IG’s recounting of the Pittsburgh events is lengthy and meticulous.

The FBI, however, continues to deny that bureau officials engaged in an elaborate and deliberate scheme to deceive investigators, Congress and the pubic about what was, in retrospect, one rookie agent’s minor, misdirected surveillance of the Pittsburgh antiwar demonstration.

“Nobody,” the FBI says, “had a motive to provide an intentionally misleading account of it.”

It seems the only people who are given carte blanche to lie and obstruct justice are those trying to evade Congressional oversight, and the people who rely on that seeming carte blanche report up through Holder. That’s a management failure and a failure of the rule of law.

Would that the Attorney General cared more about that rule of law than chumming up to the opposition party.

So Why Can’t Democrats Rein in the Intelligence Industrial Complex?

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Jeff Stein had a piece on the response to the WaPo article on intelligence contracting the other day that started with this question:

House Speaker Nancy Pelosi has long wanted more members of Congress to know what’s going on at the CIA, but why doesn’t she announce a full-fledged investigation into the intelligence contractor mess, complete with televised hearings?

In it, he quotes from someone he describes as a Pelosi aide saying there’s little will to get this done.

Back to Pelosi: An aide, who like all the others speaks only on condition of anonymity, said she “certainly sees a need to step up oversight.” But after taking an informal sounding, he added, Pelosi found “there wasn’t any momentum for it.”

I asked her about that quote when we talked on Saturday. Her first response was to deny that such a quote could have come from one of her staffers, and to suggest it had come from the intelligence committee (which is what her office said in a follow-up to me as well).

Pelosi: You mean someone from the intelligence committee? Not my staff or my office.

When I asked whether there was any support for doing something about contracting, Pelosi said the WaPo article had raised awareness of the problem.

Wheeler: Is there the support in the House and the Senate to do something about all this contracting?

Pelosi: This has been very well read by members.

Wheeler: The Washington Post piece?

Pelosi: Yes. And it isn’t, it doesn’t come as a surprise to people. But it comes as almost a relief that finally some of this is out in the open.

Pelosi went on to describe all the problems with contracting: the cost, the lack of a single chain of accountability, the lack of information-sharing, and the turf battles. Then she basically said the Intelligence Committee would have to take a look–or, maybe, the Administration might assess whether it was making us safer.

Pelosi: I think there, my view is, I think the intelligence committees would have to take a really harsh look, and I would hope the Administration has to say, are the American people safer because of what’s happening in the intelligence community and I think it’s all about their security.

In response to her hope the Administration would do something about contracting, I noted that James Clapper–on his way to being confirmed as DNI–has been a big fan of contracting. Pelosi’s response was to direct responsibility back to the Intelligence Committee.

Wheeler: Although, again, Clapper has been involved in the contracting side and seems to be a pretty big fan of using contractors, I mean he kind of poo-pooed the whole article, so do you think Clapper, again, assuming he’s approved…

Pelosi: I don’t have to vote on him so I’m sort of, I’m always saying to the White House, why him? No, I just don’t know. I don’t want to go there. I don’t know enough to give you a precise view on that. But I do know that this really needs some careful consideration and some review and the intelligence committee is the appropriate place to do it.

Of course, the folks at the Intelligence Committee–at least according to Pelosi though not according to the attribution in his article–are the ones giving Jeff Stein anonymous quotes saying any real investigation of the contracting won’t happen.

For her part, Jan Schakowsky (remember, she was in the room for the interview) doubted the commitment (implicitly, I assume she means the Executive Branch, since they’re the ones still awarding Blackwater contracts) to reducing intelligence contracting. But she also doubts whether the committees (remember, she’s a member of HPSCI) know what these contractors are doing, and ultimately comes back to the question of whether they make us safer.

Schakowsky:While there has occasionally been lip service that we need to reduce the number of contractors, it’s been disappointing to me that in the last few months we’ve seen Blackwater get another big contract with the CIA and with the State Department. I would really question the commitment–any commitment–to reducing the number of contractors. Just even in the most sensitive missions.

Read more →

Nancy Pelosi: How Dare the Administration Say they Would Veto Intelligence Reform?

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In a an interview with me on intelligence reform on Saturday, Speaker Pelosi suggested that the White House should either accept real reform of the oversight function–including some version of House amendments on GAO review of intelligence programs and expanded intelligence briefing beyond the Gang of Four–or accept full responsibility if anything goes wrong with its intelligence programs, because the intelligence committee (or at least the House intelligence committee) cannot exercise effective oversight under the current rules.

Recent coverage on the intelligence reform routinely points out that Speaker Pelosi refuses to budge on these two issues. But it rarely explains why Pelosi is so adamant about these reforms. In our interview, Pelosi (and Jan Schakowsky, who was in the room) laid out some of the reasons: Pelosi discussed the times when Gang of Four members were briefed but could not tell others (including an oblique discussion of the games CIA played with their briefings of her on torture). Schakowsky reminded Pelosi that Congress did not know the intelligence “justifying” the Iraq War. The Speaker also described a time when expanding numbers of House staffers were read into a topic only briefed to the Gang of Four, even while the members of the committee were not briefed. Pelosi mentioned the investigation Schakowsky’s subcommittee did, which concluded that CIA had failed to inform the Intelligence Committee of five major incidents. Schakowsky described the resource and expertise limitations on the committee and explained how GAO could alleviate that. Pelosi described an unevenness between the way the White House treats non-compartmented intelligence requests from the Senate and the House–including deciding to prevent specific members from seeing particular intelligence.

And both women described the absurdity by which a quarter-million contractors can get Top Secret clearance but the members of Congress selected to conduct oversight over Executive Branch intelligence activities (including, in an ideal world, over those very same contractors) couldn’t get access to the same information the contractors got.

Pelosi and Schakowsky seemed thoroughly frustrated with the joke that has become of intelligence oversight, particularly since the Bush Administration found a bunch of new ways to game the system and now the Obama Administration has threatened to veto House efforts to eliminate the ways Bush succeeded in gaming the system.

And of course, we discussed all these complaints in the context of last week’s WaPo series and what Pelosi calls the “Leviathan” of the intelligence contracting world, in which, right now, Congress can’t conduct cost analysis of contractors or measure the efficacy of the outsourced programs.

Now, I’m pretty sympathetic with the frustration with the arrogance of Administrations that refuse to share information.

Nancy Pelosi: Now, not having to do with the difference between ranking and regular members, when I became Ranking Member, I was in the room all the time and this and that oh my god and then you can’t and members are taking votes and you’re thinking, ‘You don’t even know what you’re voting on.’

[snip]

So but if you’re a Senator–and this is why the Senate doesn’t mind that much–if you’re a Senator and you want to go and get any information on intelligence–I’m not talking about highly compartmented–

Marcy Wheeler: Wiretapping and interrogation…

Pelosi: Well, it just depends on what they might be at any given time. I’m just talking about intelligence information. Intelligence. You’re a Senator [knocks on table] Here it is. You’re a House member, you have to have a vote of the Committee.

Schakowsky: Yes you do.

Pelosi: … to get it. Which you may or may not get. And which the Administration may or may not approve, depending on who it is and the rest of that. Read more →

The AP’s “Most Complete Published Account” that Leaves Out Torture

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The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.

First, the news. The AP story does reveal the following new details:

  • The name of the guy in Thailand–then station chief Mike Winograd–involved in the destruction of the tapes
  • The news that the guy who destroyed the torture tapes–former CTC and Clandestine Services head Jose Rodriguez–is still lurking around Langley as a contractor with Edge Consulting
  • The observation that Rodriguez did not include the two CIA lawyers who “approved” the torture tape destruction (Steven Hermes and Robert Eatinger, who have been identified before) on his order to destroy them, which is perceived within CIA as highly unusual
  • The hint that prosecutors may use Sarbanes-Oxley to establish the requirement to keep the tapes as well as the detail that John Durham has prosecuted two of the only half a dozen cases that have used this Sarb-Ox provision
  • A list of reasons why all the requests that should have covered the tapes purportedly don’t:

_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.

_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.

_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.

But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:

  • The story replicates CIA’s favored narrative about why the tapes were made–“to prove that interrogators followed broad new rules Washington had laid out”–and why they were destroyed–to protect the identities of officers involved in the interrogation.
  • The story presents Winograd’s justification for destroying the tapes–“the inspector general had completed its investigation and McPherson had verified that the cables accurately summarized the tapes”–without any discussion of the fact that McPherson acknowledged evidence of tampering with the tapes during the IG Report and couldn’t say whether the techniques reflected the guidance given to the torturers.
  • The story ignores all evidence of earlier destruction of evidence and cover-up of criminal acts.
  • This claim–“The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance”–is either further evidence of a cover-up or simply false.

Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.

Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).

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