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On Mitch’s PATRIOT Gambit

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Mitch McConnell, as you’ve probably heard, has just introduced a bill to reauthorize the expiring provisions of the PATRIOT Act until 2020.

The move has elicited a bunch of outraged comments — as if anyone should ever expect anything but dickishness from Mitch McConnell. But few interesting analytical comments.

For example, Mitch is doing this under Rule 14, meaning it bypasses normal committee process. But that’s not as unusual, in ultimate effect, as people are making out. After all, last year the House Judiciary Committee was forced to adopt a much more conservative opening bill under threat of having its jurisdiction stripped entirely — something that Bob Goodlatte surely liked because it helped him rein in the reformers on his committee. Particularly given Chuck Grassley’s dawdling, I suspect something similar is at issue, an effort to give him leverage to rein in last year’s USA Freedom Act in order to undercut Mitch’s ploy.

Moreover, I think it would be utterly naive to believe Mitch and Richard Burr when they claim they would prefer straight reauthorization.

That’s because we know the IC can’t do everything they want to do under Section 215 right now. While reports that they only get 30% of calls are misleading (not least because NSA gets plenty of international calls into the US under EO 12333), for legal or technical or some other reason, the NSA isn’t currently getting all the records it needs to have full coverage. But it could get all or almost all if it worked with providers.

In addition — and this may be related — the NSA has never been able to turn its automated processes back on for US collected telephone data since they had to turn them off in 2009. They gave up trying last year, when Obama decided to move data to the providers. I suspect that the combination of mandated assistance, record delivery in optimal form, and immunity will permit NSA to dump this data into its existing automated system.

So while Mitch and Burr may pretend they’d love straight reauthorization, it is far, far more likely they’re using this gambit to demand changes to USAF that permit the IC to claim more authorities while pretending to reluctantly adopt reform.

And chief on that list is likely to be data retention, something reformers have been conspicuously silent about since Dianne Feinstein revealed USAF would have had a data retention handshake, but not a mandate. Data retention is why most SSCI members opposed USAF last year, it’s why Bill Nelson (working off his dated understanding of the program from when he served on SSCI) voted against it, and Bob Litt has renewed his emphasis on data retention.

Moreover, given the debates about encryption of the last year, especially Jim Comey’s concerns that Apple would have an unfair advantage over Verizon if it can shield iMessage data, I suspect that by data retention they also mean “forced retention of non-telephony messaging metadata.” I’m not sure whether they would be able to pull this off, but I wouldn’t be surprised if the IC plans to use “NSA reform” as an opportunity to force Apple to keep iMessage metadata.

So that’s what I expect this is about: I expect Mitch deliberately caused outright panic among those fighting straight reauthorization that even he doesn’t really want to demand more things from this “reform” bill.

 

CISA’s Terrorists Are Not Just Foreign Terrorists

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In addition to hunting hackers, the Cybersecurity Information Security Act — the bill that just passed the Senate Intelligence Committee — collects information domestically to target terrorists if those so-called terrorists can be said to be hacking or otherwise doing damage to property.

Significantly, as written, the bill doesn’t limit itself to targeting terrorists with an international tie. That’s important, because it essentially authorizes intelligence collection domestically with no court review. Thus, the bill seems to be — at least in part — a way around Keith, the 1971 ruling that prohibited domestic security spying without a warrant.

It takes reading the bill closely to understand that, though.

The surveillance or counterhacking of a “terrorist” is permitted in three places in the bill. In the first of those, one might interpret the bill to associate the word “foreign” used earlier in the clause with the word terrorist. That clause authorizes the disclosure of cyber threat indicators for “(iii) the purpose of identifying a cybersecurity threat involving the use of an information system by a foreign adversary or terrorist.”

But the very next clause authorizes information sharing to mitigate “a terrorist act,” with no modifier “foreign” in sight. It authorizes information sharing for “(iv) the purpose of responding to, or otherwise preventing or mitigating, an imminent threat of death, serious bodily harm, or serious economic harm, including a terrorist act or a use of a weapon of mass destruction;”

And the last mention of terrorists — reserving the authority of the Secretary of Defense to conduct cyberattacks in response to malicious cyber activity — includes the article “a” that makes it clear the earlier use of “foreign” doesn’t apply to “terrorist organization” in this usage.

(m) AUTHORITY OF SECRETARY OF DEFENSE TO RESPOND TO CYBER ATTACKS.—Nothing in this Act shall be construed to limit the authority of the Secretary of Defense to develop, prepare, coordinate, or, when authorized by the President to do so, conduct a military cyber operation in response to a malicious cyber activity carried out against the United States or a United States person by a foreign government or an organization sponsored by a foreign government or a terrorist organization.

Frankly, I’m of the belief that the distinction that has by and large applied for the last 14 years of spying betrays the problem with our dragnet targeted on Muslims. America in general seems perfectly willing to treat some deaths — even 168 deaths — perpetrated by terrorists as criminal attacks so long as they are white Christian terrorists. If white Christian terrorists can be managed as the significant law enforcement problem they are without a dragnet, then so, probably, can FBI handle the losers it entraps in dragnets and then stings.

But here, that distinction has either apparently been scrapped or Richard Burr’s staffers are just bad at drafting surveillance bills. It appears that whatever anyone wants to call a terrorist — whether it be Animal Rights activists, Occupy Wall Street members, Sovereign Citizen members, or losers who started following ISIL on Twitter — appears to be fair game. Which is particularly troubling given that CISA makes explicit what NSA used to accomplish only in secret — the expansion of “imminent threat of death or serious bodily harm” to incorporate harm to property. How much harm to a movie studio or some other IP owner does it take before someone is branded a “terrorist” engaged in the “act” of doing “serious economic harm,” I wonder?

Note, too, that according to OTI’s redlined version of this bill, most of the application of this surveillance to foreign and domestic terrorists is new, added even as SSCI dawdles in the face of imminent Section 215 sunset.

As I’ll show in a later post, one function of this bill may be to move production that currently undergoes or might undergo FISC  or other court scrutiny out from under a second branch of government, making a mockery out of what used to be called minimization procedures. If that’s right, it would also have the effect of avoiding court scrutiny on just whether this surveillance — renamed “information sharing” — complies with Supreme Court prohibition on warrantless spying on those considered domestic security threats.

Have the Banks Escaped Criminal Prosecution because They’re Spying Surrogates?

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I’m preparing to do a series of posts on CISA, the bill passed out of SSCI this week that, unlike most of the previous attempts to use cybersecurity to justify domestic spying, may well succeed (I’ve been using OTI’s redline version which shows how SSCI simply renamed things to be able to claim they’re addressing privacy concerns).

But — particularly given Richard Burr’s office’s assurances this bill is great because “business groups like the Financial Services Roundtable and the National Cable & Telecommunications Association have already expressed their support for the bill” — I wanted to raise a question I’ve been pondering.

To what extent have banks won themselves immunity by serving as intelligence partners for the federal government?

I ask for two reasons.

First, when asked why she, along with Main Justice’s Lanny Breuer, authorized the sweetheart deal for recidivist transnational crime organization HSBC, Attorney General nominee Loretta Lynch implied that there was insufficient admissible evidence to try any individuals associated with this recidivism.

I and the dedicated career prosecutors handling the investigation carefully considered whether there was sufficient admissible evidence to prosecute an individual and whether such a prosecution otherwise would have been consistent with the principles of federal prosecution contained in the United States Attorney’s Manual.

That’s surprising given that Carl Levin managed to come up with 300-some pages of evidence. Obviously, there are several explanations for this response: she’s lying, the evidence is inadmissible because HSBC provided it willingly thereby making it unusable for prosecution, or the evidence was collected in ways that makes it inadmissible.

It’s the last one I’ve been thinking about: is it remotely conceivable that all the abundant evidence against banksters their regulators have used to obtain serial handslaps is for some reason inadmissible in a criminal proceeding?

I started thinking about that as a real possibility when PCLOB revealed that Treasury’s Office of Intelligence and Analysis has never once — not in the 30-plus years since Ronnie Reagan told them they had to — come up with minimization procedures to protect US person privacy with data collected under EO 12333. Maybe that didn’t matter so much in 1981, but since 2004, Treasury has had an ever-increasing role in using intelligence (collected from where?) to impose judgments against people with almost no due process. And those judgements are, in turn, used to impose other judgments on Americans with almost no due process.

The thing is, you’d think banks might care that Treasury wasn’t complying with Executive Branch requirements on privacy protection. Not only because they care (ha!) about their customers, whether American or not, but because many of them are, themselves, US persons. US bank US person status should limit how much Treasury diddles with bank-related intelligence, but Treasury doesn’t appear bound by that.

Which leads me to suspect, at least, that there’s something in it for the banks, something that more than makes up for the serial handslaps for sanctions violations.

And one possibility is that because of the way this data is collected and shared, it can’t be used in a trial. Voila! Bank immunity.

All that’s just a wildarsed guess.

But one made all the more pressing given that Treasury is among the Appropriate Federal Entities that will be default intelligence recipients for cyber information under CISA.

(3) APPROPRIATE FEDERAL ENTITIES.—

The term ‘‘appropriate Federal entities’’ means the following:

(A) The Department of Commerce.

(B) The Department of Defense.

(C) The Department of Energy.

(D) The Department of Homeland Security.

(E) The Department of Justice.

(F) The Department of the Treasury.

(G) The Office of the Director of National Intelligence.

To some degree, this is not in the least bit surprising. After all, financial regulators have increasingly made cybersecurity a key regulatory concern of late, so it makes sense for Treasury to be in the loop.

But banksters rarely — never! — add regulatory exposure for themselves without a fight and, as Burr’s office has made clear, the banks love this bill.

One more datapoint, back to HSBC. As I noted when Lanny Breuer and Loretta Lynch announced that handslap, Breuer neglected to mention that HSBC was getting a handslap not just for helping cartels profit off drugs, but also helping terrorists fund their activities (at the time Pete Seda was being held without bail on charges the government insisted amounted to material support for terrorists for handing a check to Chechens using cash that had come indirectly from HSBC). The actual settlement, however, made mention of it by explaining that HSBC had “assisted the Government in investigations of certain individuals suspected of money laundering and terrorist financing.” By dint of that cooperation, in other words, HSBC went from being a material supporter of terrorism to being a deputy financial cop. And Breuer expanded that notion of banks serving as deputized financial cops thereafter.

Are the methods and terms by which we’re collecting all this financial intelligence to use against some bad guys precisely what prevents us from holding the even bigger bad guys — the ones affecting far more of us directly, in the form of the houses we own, the towns we live in, the opportunity costs paid to financial crime — accountable?

And will this system now be replicated under CISA (or has it, already) as banks turn into cyber crime deputized cops?

Edward Snowden Got One Fifth of Americans to Adopt Better Passwords

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Thanks to Edward Snowden, almost 22% of Americans have adopted more complex passwords, one of the most basic things they could do to keep themselves safer online.

That’s according to a Pew Research study released this week tracking how Americans have responded to the disclosures about government spying. It found that 87% of Americans are aware of the surveillance programs. And of those 87%, 25% are using more complex passwords. That likely means they’ve ditched passwords like “password” and replaced them with things that are harder for the average criminal hacker to guess.

That’s actually a very significant change, all brought about by one guy’s effort to illuminate what our government is doing. It won’t protect most people against the NSA, but will make people safer from identity theft.

Meanwhile, Congress is diddling away passing a bill, CISA, that probably would not have prevented any known hack. I’d say Snowden is doing a better job at protecting the country.

DC’s Elite: Let Our General Go!

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At almost precisely the moment the FBI started investigating who was pestering Tampa Bay socialite Jill Kelley, an investigation that would lead to the resignation and investigation of David Petraeus, John McCain called for an investigation into top Obama officials leaking details of covert ops to make themselves look good.

Outraged by two recent articles published by the New York Times, which exposed the extent of U.S. involvement in cyberattacks made against Iran and the White House’s secret ‘Kill List,’ John McCain (R-Ariz.) and Saxby Chambliss (R-Ga.) took to the Senate floor to admonish the administration, and accuse it of widespread disregard for national security.

“The fact that this administration would aggressively pursue leaks by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases, but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” McCain said.

Now, McCain is outraged! that former top Obama official David Petraeus is getting the callous treatment given to those being investigated for leaks.

U.S. Senators John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) today released the following statement on the handling of the investigation into former CIA Director David Petraeus:

“While the facts of the case involving General David Petraeus remain unknown and are not suitable for comment, it is clear that this investigation has been grievously mishandled.

“It is outrageous that the highly confidential and law enforcement-sensitive recommendation of prosecutors to bring charges against General Petraeus was leaked to the New York Times. It is a shameful continuation of a pattern in which leaks by unnamed sources have marred this investigation in contravention to fundamental fairness.

“No American deserves such callous treatment, let alone one of America’s finest military leaders whose selfless service and sacrifice have inspired young Americans in uniform and likely saved many of their lives.”

And of course, McCain had no problem when the first story about poor Petraeus’ treatment appeared in December, quoting lots of McCain’s buddies calling for justice! for Petraeus.

McCain (and his sidekick Lindsey) are not the only ones rending their garments over the injustice of a top Obama official being investigated for leaking classified details to make himself look good. Jason Chaffetz keeps complaining about it. And Dianne Feinstein took to the Sunday shows to declare that Petraeus has suffered enough. Richard Burr apparently made false claims about how the Espionage Act has been wielded, of late, even against those whose leaks caused no harm.

Golly, you’d think all these legislators might figure out they have the authority, as legislators, to fix the overly broad application of the Espionage Act.

Meanwhile, Eli Lake — who launched the campaign to Let Our General Go last month — has an odd story complaining about Petraeus’ treatment. To Lake’s credit, he mentions — though does not quote — how Petraeus celebrated John Kiriakou’s guilty plea. Here’s what Petraeus said then about the importance of respecting your vows to secrecy:

It marks an important victory for our agency, for our intelligence community, and for our country. Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.

Lake also suggests Paula Broadwell’s job — writing fawning biographies of the man she was fucking — was the same as Bob Woodward’s.

What’s more, Broadwell herself was writing a second book on Petraeus. When Broadwell — a graduate of West Point — was writing her first biography of him, she was given access to top secret information covering the period in which Petraeus commanded allied forces in Afghanistan. This arrangement is common in Washington for established authors. Sources for Bob Woodward, whose books often disclose classified information that is provided to him through semi-official leaks, are not investigated for betraying state secrets.

Maybe it is, maybe Woodward is nothing more than a power-fucker. But it obscures the key difference (which should not be true but is) that when the White House sanctions a book, they get to sanction self-serving leaks for it.

Finally, Lake misstates something about selective treatment.

Senior officials such as Petraeus, who serve at the highest levels of the national security state, are almost never punished as harshly as low- and mid- level analysts who are charged with leaking. When former CIA director John Deutch was found to have classified documents on his unsecure home computer, he was stripped of his security clearance and charged with a misdemeanor. 

An even better example — one not mentioned at all — is when Alberto Gonzales was found to have kept a CYA file, full of draft OLC memos and notes from a briefing on the illegal wiretap program, in a briefcase in his house. He resigned at the beginning of that investigation (and it has never been clear how much that played a role in his resignation; there are many interesting questions about Gonzales’ resignation that remain unanswered). But he suffered no consequences from keeping unbelievably sensitive documents at his house, aside from being denied the sinecure all other Bush officials got.

That said, that’s true of a lot of people in sensitive positions. Of the 40 witnesses who might be called against Jeffrey Sterling, for example, 6 have been found to have mistreated classified information (as has Sterling himself); that includes his direct supervisor while at CIA as well as 3 others cleared into the Merlin op (and I’m certain that doesn’t include Condi Rice, whose testimony the AIPAC defendants would have used to show how common leaking to the press was, nor does it include one other witness I strongly suspect has been involved in another big leak case). CIA withheld that detail from DOJ until right before the trial was due to start in 2011. But it does offer at least one metric of how common mistreating classified information is.

The prosecution of it, of course, is very selective. And that’s the problem, and David Petraeus’ problem, and Congress’ problem.

Yet that won’t ensure that Congress does anything to fix that problem with the means at their disposal, legislating a fix to stop the misuse of the Espionage Act. That’s because they like the overly broad use of it to cudgel leakers they don’t like. Just not the ones they’re particularly fond of.

Shorter GOP Intelligence: “Oversight’s Out for Summer!”

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I’m just now getting around to the GOP rebuttal to the Senate Report. While it does raise a few decent points, it engages in a whole slew of the kind of word games the Bush Administration used to hide torture in the first place (I honestly would love to read a serious study of this whole project as an epistemological exercise).

Thus far, however, I most adore this paragraph on Congressional oversight.

The Study claims, “[t]he CIA did not brief the Senate Intelligence Committee leadership on the CIA’s enhanced interrogation techniques until September 2002, after the techniques had been approved and used.”88 We found that the CIA provided information to the Committee in hearings, briefings, and notifications beginning shortly after the signing of the Memorandum of Notification (MON) on September 17, 2001. The Study’s own review of the CIA’s representations to Congress cites CIA hearing testimony from November 7, 2001, discussing the uncertainty in the boundaries on interrogation techniques.89 The Study also cites additional discussions between staff and CIA lawyers in February 2002.90 The Study seems to fault the CIA for not briefing the Committee leadership until after the enhanced interrogation techniques had been approved and used. However, the use of DOJ-approved enhanced interrogation techniques began during the congressional recess period in August, an important fact that the Study conveniently omitted.92 The CIA briefed HPSCI leadership on September4, 2002. SSCI leadership received the same briefing on September 27, 2002.93

I am somewhat sympathetic to the first claim. As it notes, at a briefing for what appears to be the Senators (as opposed to staff) on November 7, 2001, Deputy Director of Operations said something that should have set off alarm bells.

Deputy Director of Operations (DDO) James Pavitt assured the Committee that it would be informed of each individual who entered CIA custody. Pavitt disavowed the use of torture against detainees while stating that the boundaries on the use of interrogation techniques were uncertain—specifically in the case of having to identify the location of a hidden nuclear weapon.2447

2447 “We’re not going to engage in torture. But, that said, how do I deal with somebody I know may know right now that there is a nuclear weapon somewhere in the United States that is going to be detonated tomorrow, and I’ve got the guy who I know built it and hid it? I don’t know the answer to that.” (See transcript of Senate Select Committee on Intelligence MON briefing, November 7, 2001 (DTS #2002-0611);

Whoa!

Pavitt effectively said, just as the government started to round up people like Ibn Sheikh al-Libi in Afghanistan, “we’re not going to torture but then again maybe we will.” And while it is crystal clear he failed to meet the terms he laid out — Congress was not informed about each detainee, there was never a detainee in custody who had set a nuclear bomb nor even a ticking time bomb scenario, much less Abu Zubaydah, who was put on ice for over a month before the worst of the torture — his contemplation of using torture in case of a ticking time bomb should have been the moment for Congress to say, “Whoa! Stop!”

There’s no reason to believe the February briefing discussed the torture.

Which brings us to the September briefings.

Now, first of all, elsewhere in their rebuttal, the GOP note that Abu Zubaydah was subjected to torture in April (largely, but not entirely, sleep deprivation). They make much — some of it justified — of the Report for not dealing with this as torture. But here, they adopt the same approach the Report did and ignore that torture and point out that the DOJ-approved torture (that is, the torture that had some authorization beyond the Memorandum of Notification, rather than the torture that relied exclusively on it) started during Congressional recess, so whatever was the poor CIA to do about Richard Shelby and Bob Graham being on vacation? (FWIW, Graham remained actively involved in the Joint Inquiry into 9/11 during that period; it’s when he first started getting incensed about Saudi Arabia’s role in the attack.)

Schools out for summer!

Except it wasn’t out.

Screen shot 2014-12-17 at 7.47.21 PM

As the official schedule from the period makes clear, the Senate met (marked by strike-through) on August 1, the day the torture memos were signed. Under the National Security Act, the Gang of Four, at least, are supposed to be briefed before a covert op. Clearly the Executive knew enough about what they planned to do with Abu Zubaydah on August 1 to be able to brief it before they started on August 4. (In case you’re wondering, the Senate was also in session in April to be briefed.)

I am, however, rather interested that the GOP is adopting the argument that CIA had to wait until September to roll out a new product, just as Andy Card was doing with the Iraq War at that same time. Especially given the way both Nancy Pelosi and Bob Graham have noted that the Executive was lying about both in that same period.

Finally, there’s the final claim — that Bob Graham and Richard Shelby got the same briefing that Nancy Pelosi and Porter Goss did. The claim commits another of the crimes the rebuttal accuses the Report of — insisting you can’t find out what happened at a briefing without interviewing the participants, which the GOP did no more than the SSCI staffers did.

But from the available evidence, we can be pretty sure Graham and Shelby did not get the same briefing that Pelosi and Goss did.

As I’ve laid out, someone(s) in the Pelosi and Goss briefing noted that the torture described in the briefing — which CIA had already done, though they didn’t tell Pelosi and Goss that — would be illegal in another country. The next day, CIA ramped up discussions of destroying the torture tapes that depicted that illegal torture. The next, Jose Rodriguez and a lawyer altered their record of the briefing to take out that reference to illegality. And, for some reason, the Graham and Shelby briefing, which had been scheduled for September 9, got postponed until the end of the month. Rodriguez did not attend the SSCI briefing, as he had the HPSCI one. And it appears to have been held in less secure space.

And while I’ve only interviewed half the people who attended those briefings, there does seem to be abundant evidence they were different. Not only that they were different, but different because of the reaction someone in the HPSCI briefing had.

Whatever. I guess it’s nice to know that departing Vice Chair Saxby Chambliss and rising Chair Richard Burr both think the CIA should get none of the oversight legally required during recess.

The “DSOP Accommodation”

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In what may serve as the public transition moment from Dianne Feinstein to Richard Burr (in part because Saxby Chambliss was absent), the Senate Intelligence Committee considered the nomination of Nick Rasmussen to head National Counterterrorism Center yesterday. He’s long served as the Deputy anyway, so he’s very well qualified, and the hearing was one of those love affairs you often see (though in this case I’m not aware of any big flags that the Committee might soon regret, as I predicted during John Brennan’s confirmation).

That said, I highly recommend Rasmussen’s Additional Prehearing Answers. Along with a really accessible (and welcome) description of many of NCTC’s functions, it includes (question 17) what appears to be his description of his role in developing the Drone Rule Book.

I wanted to also point to his discussion of the Directorate of Strategic Operational Planning (see questions 11 and 13). In 2012, DSOP was described as an important part of CT, but one Congress had largely neglected:

The Directorate of Strategic Operational Planning is supposed to be the mechanism for government-wide strategic operational planning and is half of NCTC’s mission, yet oversight is negligible.  The seeming importance of DSOP has been highlighted in testimony by NCTC leadership, yet relatively unchallenged by Congress in hearings.  In his statement to the Senate Select Committee on Intelligence as nominee for the Director of the NCTC, Adm. John Scott Redd called strategic operational planning “substantial, daunting and, I believe, very necessary.”[xii]  Through the years, SOP has been called “truly revolutionary”[xiii] as the government has “come together in ways…never seen during…decades of government service.”[xiv]  Despite caveats of strategic operational planning as “new to the US government,” [xv]SOP was called “foundational”[xvi] to counterterrorism efforts.  Succeeding NCTC Director Michael Leiter said he was “more convinced than ever that success against terrorism will only come through such coordinated and synchronized efforts—to include the full weight of our diplomatic, financial, military, intelligence, homeland security and law enforcement activities.” [xvii]  For such weighty importance, however, Congress hardly paid attention to DSOP.

Since then, however, it has become clear that one reason Congress hadn’t been paying attention is because the Executive wasn’t sharing details on it. In John Brennan’s prehearing questions, for example, the Committee hammered him a bit for withholding information.

Question 23: Please describe any involvement you have had in the Administration’s responses to the Committee’s requests for the strategies produced by the Directorate of Strategic Operational Planning, including whether you personally made any decision or recommendation regarding the Committee’s access to such strategies and, if so, providing the specific legal basis for your decision or recommendation.

A: In my capacity as Assistant to the President for Homeland Security and Counterterrorism, I have conferred with NCTC Director Matt Olsen on how to determine what elements of those NSS-led counterterrorism implementation plans that NCTC’s Directorate of Strategic Operational Planning (DSOP) has contributed to should be shared with the Committee. DSOP supports the NSS in helping to draft and coordinate some–not all–CT implementation plans and to compile related department and agency activities. These documents often contain policy-focused information from the NSS that is deliberative in nature; include information on non-intelligence-related activities that departments and agencies may be pursuing; and, in some cases, access to documents is limited by the NSS due to security sensitivities around the CT planning/implementation effort. I have worked with Director Olsen to share with the SSCI those plans or parts of plan that are not deliberative in nature and that involve intelligence activities. I have supported NCTC’s decision to respond to SSCI requests for briefings/information on the non-deliberative, intelligence-related aspects of particular plans and would support SSCI requests for briefings/information from other parts of the intelligence community, including CIA, as it relates to particularly plans.

The question on this topic addressed to Rasmussen is more circumspect.

Question 13: Historically, the Committee has had difficulty in obtaining the strategies that are produced by NCTC’s Directorate of Strategic Operational Planning. If confirmed, will you abide by the current accommodation that has been reached between the Committee and NCTC?

A: Yes. I am familiar with the accommodation that has been reached with the Committee with respect to the strategies that DSOP produces and, if confirmed,, I would continue to abide by it.

The response doesn’t really reveal whether the SSCI is actually learning what kind of schemes get considered during this strategic response to terrorism; it sure seems to be limited.

As it happens, two of the maybe 12 questions addressed to Rasmussen addressed the question as well.  Rising Chair Burr challenged Rasmussen what he — in this DSOP role — would do strategically to combat terrorism (I liked his emphasis that DSOP, not NSC, is actually the agency in charge).

Burr: What is NCTC as the Executive agent for our nation’s strategy gonna do about [the broad threat of terrorism]?

Rasmussen: [pauses] The role that NCTC plays in carrying out Strategic Operational Planning in support of the government is one that has us tied very closely to the National Security Council staff and the policy development process for pursuing strategies against–on counterterrorism. We work with the National Security Council staff to develop whole of government plans to address our counterterrorism concerns in each of the theaters around the world. Not just one single theater, for ex–as you would well expect, Senator. The efforts to develop strategies against ISIL is at a particularly energetic pace right now. But our Strategic Operational Planning capability is also brought to bear on the whole array of CT challenges we face, in Africa, in Asia, in South Asia, every region you can think of. And so I would consider our job at NCTC to make sure that we aren’t leaving any holes in that fabric of strategy as we look out across all of the different CT challenges that we face, while at the same time prioritizing where effort needs to be most energetically directed. And that of course right now would argue for a lot of effort to be directed at the challenges we’re facing in Syria and Iraq.

And Angus King askedwhy we don’t develop something akin to the Kennan containment strategy used against the Soviet Union.

Rasmussen: The strategies that we try to help produce at NCTC in support of the National Security Council staff — in my answer to Chairman Feinstein [sic] are typically whole of government strategies, not just relying on our intelligence capabilities or our military capabilities but also trying to take advantage of the abilities, the resources we have across the government to try to produce the conditions that would over time eat away at support for terrorism in some of these conflict locations, um, overseas. At the same time, we all go into it understanding well that those effort will ultimately take years if not decades to play out for us to reap the benefits of those kinds of strategies, and in the meantime, you’re left to manage a very difficult threat environment.

Note that, whatever Rasmussen’s commitment to the DSOP “accommodation” to share information with SSCI, he still seems to defer to NSC on this topic, even though the law says that NCTC should take the lead.

It may well be that the White House (properly, to a point) believes that strategic planning against terrorism is an inherent Executive function. But it doesn’t seem like the White House should be hiding all this — to whatever extent it is — from its Congressional overseers, particularly given how easily the fight against terrorism can turn into support for terrorism.

One Potential Civil Liberties Bright Spot from Yesterday’s Shellacking: Thad Cochran

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There has been a lot of belated attention to the impact that Mark Udall’s loss yesterday will have on the Senate Intelligence Committee. I’ve been pointing to the possibility of a Udall loss and a Richard Burr Chairmanship since March. I warned you all of this when there was still time to do something about it!

Yesterday’s election will have huge impact on intelligence matters. It’s crystal clear, for example, that Burr has zero intention of exercising any oversight into the intelligence community, as we know he has been uninterested in their law-breaking in the past. I actually think Burr may be more interested in their competence than Feinstein has been, but that may be just a pipe-dream.

Burr might even be the very very rare Gang of Four member who doesn’t use the position to leak what the intelligence community wants to make public to the press. I say that because Burr was a key player in requiring the White House to provide the committees a list of sanctioned leaks, which I actually think was a badly needed reform (though I have no idea whether the White House has complied).

There’s also the matter of the 3 or 4 new Republicans that will gain seats on the Intelligence Committee (adding at least one for the majority, along with replacing Saxby Chambliss and Tom Coburn, both of whom retired). It’d be nice to see a libertarian among these — perhaps someone like Mike Lee, given that Utah has a lot of intelligence equities. But I highly doubt Mitch McConnell would put anyone with an interest in civil liberties on the Committee.

But there is one area where yesterday’s shellacking might harbor good news for civil liberties: Thad Cochran.

With Republicans in the majority, Barb Mikulski (D-NSA) will lose her Chairmanship of the Appropriations Committee; Cochran is expected to get that Chair. Mikulski has always been — even more than Dianne Feinstein — the impediment to any real civil liberties change in the Senate, because she is far more powerful. Importantly, she served as a guarantee that smart policies put through on appropriations bills — like Alan Grayson’s elimination of a requirement that NIST consult with the NSA on encryption standards, and the Massie-Lofgren amendment to defund back door searches — would not make it into any final bill.

Losing the majority, even losing Mikulski on Appropriations on all other matters, is a huge loss, don’t get me wrong.

But it does mean that Thad Cochran might, just maybe, allow good things to move through the Senate on appropriations. With Barb Mikulski there was no chance in hell of doing something on an appropriations bill. Without her, there’s at least a possibility. (Remember that Ted Stevens permitted a Ron Wyden amendment defunding TIA to go through appropriations in 2003, so such things are not unheard of.)

There’s no reason to believe that Cochran, in general, is any friendlier to civil liberties than Mikulski. But he’s not the NSA’s own personal senator. And that may be a tiny bright spot.

Richard Burr Prepares to Capitalize on Refusing to Exercise Intelligence Oversight

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In James Risen’s new book, he provides new details on what happened to the NSA whistleblowers — Bill Binney, Kurt Wiebe, Ed Loomis, Thomas Drake — who tried to stop President Bush’s illegal wiretap program, adding to what Jane Mayer wrote in 2011. He pays particular attention to the effort Diane Roark made, as a staffer overseeing NSA on the House Intelligence Committee, to alert people that the Agency was conducting illegal spying on Americans.

As part of that, Risen describes an effort Roark made to inform another Congressman of the program, one who had not been briefed: Richard Burr.

Despite the warning from (HPSCI’s Republican Staff Director Tim) Sample not to talk with anyone else on the committee about the program, she privately warned Chris Barton, the committee’s new general counsel, that “there was an NSA program of questionable legality and that it was going to blow up in their faces.” In early 2002, Roark also quietly arranged a meeting between Binney, Loomis, and Wiebe and Richard Burr, a North  Carolina Republican on the House Intelligence Committee. Binney told Burr everything they had learned about the NSA wiretapping program, but Burr hardly said a word in response. Burr never followed up on the matter with Roark, and there is no evidence he ever took any action to investigate the NSA program.

I’m not actually surprised that Burr learned the Intelligence Community was engaging in illegal behavior and did nothing. From what we’ve seen in his response to torture, he has served entirely to help CIA cover up the program and protect the torturers. Indeed, in his treatment of John Brennan’s confirmation, he made efforts to ensure Brennan would have to protect the torturers too.

So it’s no surprise that Burr heard details of an illegal program and ignored them.

Still, it’s worth highlighting this detail because, if Democrats do lose the Senate as they are likely to do in November, Richard Burr will most likely become Senate Intelligence Committee Chair. While Dianne Feinstein may be a badly flawed Chair overseeing the IC, Burr will be a nightmare, unloosing them to do whatever they’re ordered.

That’s the kind of career advancement that comes to a guy who remains silent about wrongdoing.

The Torture Apologists Raise Brennan’s Torture-Derived Scary Memos

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Some time in mid-2004, 8 high ranking National Security officials gave then presiding FISA Court Judge Colleen Kollar-Kotelly a briefing. Their goal was to convince her the then halted and now-discontinued Internet dragnet program was so important, and the terrorist threat against the US so great, she should write a shoddy legal opinion authorizing NSA to restart the program under the authority of the FISA Pen Register statute.

As part of the briefing, they replicated a process they had used for Bush’s illegal wiretap program: to have CIA’s analytical people write what they called a “scary memo” explaining why al Qaeda was so dangerous we had to continue that dragnet.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to’ undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. [my emphasis]

As head of the Terrorist Threat Integration Center (and later as head of the nascent National Counterterrorism Center), John Brennan oversaw that “scary memo.”

Last year, John Brennan admitted that he used information derived from the torture program (he calls it the detention and interrogation  program) for those “scary memos.”

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation. [my emphasis]

We can imagine the kind of things Brennan might have used in his “scary memos” and that briefing to Kollar-Kotelly, on which the entire FISC-authorized dragnet .

Hassan Ghul — whom CIA tortured even after he provided critical information about Osama bin Laden’s courier — was already in custody, and given uncertainty about when his torture started, may have provided such information.

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