The Committee would have published dissenting views in any case, but Republican Susan Collins specifically included them in her support for the report.
What we’re going to get will be the Executive Summary, Findings, and Additional and Dissenting Views. Because we’ll get just the Executive Summary, we won’t get much hard detail — aside from that which has been public for years — about the allegations that will appear in the Executive Summary, which will make it harder to rebut any claims CIA’s defenders make.
Moreover, I would not be in the least surprised if the same rule that applies to CIA Publication Review Board decisions — that the writings of torture critics like Ali Soufan and Glenn Carle are aggressively censored, while the views of torture boosters like Rizzo and Jose Rodriguez will be permissively published — applied here. The CIA has — as McClatchy emphasizes — already assumed they’ll do the declassification review. And in spite of calls for the White House to take the lead, I expect they won’t. After all, the White House has relied on CIA to hide the Executive Privilege-lite documents (which I suspect would show that CIA only lied to some people at the White House, but not to people like David Addington). So CIA is owed something by the White House.
Remember, too, that torture critics have gotten recent warnings not to speak publicly, even while Rodriguez and Rizzo blather away.
And all this — what will surely be calls that Democrats have unfairly tainted noble Jose Rodriguez’ reputation — will play out against electoral politics, as Republicans try to take out Mark Udall for his opposition to torture.
Thus far, too, the torture boosters have laid the groundwork to win this debate. Even ignoring Rizzo and Rodriguez’ books, they’ve been working the press with details, as compared to the vague releases that the Torture Report will find CIA lied.
Which is my pessimistic way of saying that unless torture critics get a lot more serious about the propaganda onslaught the Republicans plan to launch to defend torture, this Torture Report release may not do all that much good at all. Torture critics largely lost this debate in 2009, and they’ll actually have less new information with which to fight this if CIA gets its way on declassification.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2014-04-03 08:52:052014-04-03 08:54:09How the Torture Report Declassification Is Likely to Work
Back when Mark Udall first hinted about the CIA’s efforts to intimidate the Senate Intelligence Committee, he said CIA had taken “unprecedented action.”
That’s language Harry Reid repeats in a letter to John Brennan informing him that the Senate Sergeant-at-Arms will conduct a forensic review of the SSCI computers.
You are no doubt aware of the grave and unprecedented concerns with regards to constitutional separation of powers this action raises.
The language Reid uses in a letter to Eric Holder is even stronger.
As Majority Leader of the Senate, I have a responsibility to protect the independence and effectiveness of our institution. The CIA’s decision to access the resources and work product of the legislative branch without permission is absolutely indefensible, regardless of the context. This action has serious separation of powers implications. It is immaterial whether this action was taken in response to concerns about the Committee’s possession of a disputed document; this stands as a categorically different and more serious breach.
[snip]
In my capacity as the leader of the U.S. Senate, the CIA’s actions cause me great concern. The CIA has not only interfered with the lawful congressional oversight of its activities, but has also seemingly attempted to intimidate its overseers by subjecting them to criminal investigation. These developments strike at the heart of the constitutional separation of powers between the legislative and executive branches. Left unchallenged, they call into question Congress’s ability to carry out its core constitutional duties and risk the possibility of an unaccountable Intelligence Community run amok. The CIA cannot be permitted to undermine Congress’s ability to serve as an effective check on executive power as our nation’s Founders intended.
For all the talk of interbranch conflict, however, the letter to Brennan includes hints of partisan conflict. He asks Brennan to keep his staffers away from Senate staffers except the Sergeant-at-Arms.
To ensure its [the Sergeant-at-Arms review] independence, I ask that you take whatever steps necessary to ensure that CIA personnel refrain from further interaction relating to this issue with Senate staff other than the Segeant-at-Arms staff conducting the examination while the examination is underway.
This suggests there has been such contact. And there’s no reason to believe anyone from the Democratic side would be working back channel with Brennan’s spooks.
As I noted last week, the Republicans — especially Richard Burr, who would become Intelligence Chair if Republicans retake the Senate — have been going after Mark Udall aggressively. In the interim we’ve seen fairly obvious hit jobs that use the CIA-SSCI dispute to focus on Udall’s electoral prospects in November.
So while I believe everything Reid says about separation of powers — while I believe he regards this as an unprecedented threat to separation of powers — this also reeks of an attempt to prevent the collaboration of Republicans and the CIA.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2014-03-20 11:00:172014-03-20 11:23:08In Describing CIA’s Attempted Intimidiation of Senate Intelligence Committee, Harry Reid Uses the Word “Unprecedented” Too
Yesterday, I predicted the CIA and its Republican apologists would try to use the torture crisis to knock off a few Democrats in an attempt to retake the Senate. If that happened, Richard Burr, who would become Senate Intelligence Chair, would surely kill the Torture Report as one of his first acts.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
Republicans say that not only has the committee’s chairwoman, Sen. Dianne Feinstein (D-Calif.), provided selective information to the public about improper CIA conduct, but they are also now pointing the finger at Sen. Mark Udall (D-Colo.).
The Colorado Democrat, Republicans say, shouldn’t have disclosed internal Senate proceedings over the CIA investigation — something that some Republicans privately say should warrant an ethics committee review.
[snip]
“I think Mark did make some public releases that were committee-sensitive information, but that’s for the committee internally to handle,” said Sen. Richard Burr (R-N.C.), a member of the committee. “That’s being reviewed right now.”
Udall said “No way” when asked Wednesday if he was involved in the leaking of sensitive information, saying he’s “done absolutely nothing wrong here.”
“If some of my colleagues on the Intelligence Committee really want to press the case that in referring to an executive branch abuse in my March 4 letter – what I called an ‘unprecedented action’ that the CIA had taken in relation to the internal CIA review – I have somehow violated Committee rules, I am more than happy to have that debate,” Udall said.
Udall added: “In fact, the only thing I’ve done is exercise vigorous oversight over senior intelligence officials who are all too often unwilling to cooperate with Congress.”
[snip]
Several Intelligence Committee Republicans also asserted that ethics charges should be filed against Udall for his public statements about the CIA’s interrogation program and about the agency’s reaction to the panel’s investigation into that program, including the March 4 letter.
But others on the panel, said the matter should be handled internally by the Intelligence Committee — not by the Ethics Committee.
Burr added: “If you look historically, the committee has cleaned up any mistakes that members have made. Members can do whatever they want to. My concern is that the release of information could potentially causes the losses of life to Americans. That to me, is a threshold that should be addressed.”
As I noted on Twitter, Burr is the distant relation of noted assassin Aaron Burr (which he joked about once when Treasury Secretary Jack Lew testified). He sure seems to take to the assassination role well. He’s now suggesting Mark Udall might potentially cause the loss of American life because he revealed that in 2009 the CIA agreed with what Senate Democrats (and John McCain) would ultimately conclude, that the CIA’s torture program was ineffective and they lied about it.
Right. Knowing the truth about CIA’s torture will kill us all.
In any case, this is all proceeding, very quickly, as I predicted. The Republicans will try to make this an election issue, helped in the background by CIA’s torturers, with the understanding that they will not only kill the Torture Report if Republicans take the Senate, but give CIA free rein.
But honest, the Intelligence Community has adequate oversight.
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In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2014-03-11 21:44:582014-03-11 23:36:32Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win
There are 15 members of the Senate Intelligence Committee. By my count, at least 5 of them revealed some part of what they got briefed on the Boston attack yesterday afternoon to the press.
Saxby Chambliss says an agency may not have shared one piece of evidence.
“There now appears that may have been some evidence that was obtained by one of the law enforcement agencies that did not get shared in a way that it could have been. If that turns out to be the case, then we have to determine whether or not that would have made a difference,” Chambliss said.
Though Chambliss would not get into specifics on the information or whether or not the bombing could have been prevented, he told Channel 2 Action News that they will find out if someone dropped the ball.
“Information sharing between agencies is critical. And we created the Department of Homeland Security to supervise that. We created the National Counter Terrorism Center to be the collection point for all of this information, and we’re going to get to the bottom of whether or not somebody along the way dropped the ball on some information and did not share it in a way that it should have been shared.”
Chambliss also suggested that some of the walls that had been eliminated after 9/11 may have been unintentionally recreated.
“Post-911 we thought we had created a systems that would allow for the free flow of information between agencies,” said Senator Saxby Chambliss, a Republican from Georgia and member of the intelligence panel. “And I think there have been some stone walls .. .that have been re-created that were probably unintentional.”
Richard Burr revealed that FSB had contacted the government more than the single, January 2011 time that has been reported; it contacted us (he didn’t say what agency) at least once since October 2011.
Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.
[snip]
In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.
Susan Collins revealed that one agency even had problems sharing information within its own agency and repeated that magic word, “stovepipe.”
“But I’m very concerned that there still seem to be serious problems with the sharing of information, including critical investigative information,’’ she said after emerging from the closed-door committee briefing. “That is troubling to me, this many years after the attacks on our country in 2001, that we still seem to have stovepipes that prevent information from being shared effectively, not only among agencies but also with the same agency in one case.”
Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.
The FBI has previously said it interviewed Tsarnaev in early 2011 after it was initially contacted by the Russians. After that review, the FBI has said, it determined he did not pose a threat.
In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.
Marco Rubio shared details echoing those reported elsewhere, that the brothers had gotten both their beliefs and bomb instructions online. Dianne Feinstein — the only Democrat I found blabbing to the press — said to hold off on making judgments.
Now, none of these details are that informative. I’m interested in the multiple follow-up complaints from Russia, particularly given that other reports say FBI asked for follow-up information from Russia three different times and got nothing (was FSB sharing it with the CIA?). I’m interested in the agency that couldn’t share information within its own agency.
Other than that, I get the impression this is more of what plagues our counterterrorism efforts in the first place: a flood of information with an imperfect ability to sort it (not to mention the very distinct possibility that there were no definitive pieces of intelligence that would have alerted authorities to the brothers’ violent intent).
But I wonder, given that no one seems to take the “closed” part of “closed hearings” very seriously. Why can’t we just brief this stuff publicly, so taxpayers and citizens can learn whether the billions we’ve spent on counterterrorism have done anything more than create even more bureaucracies.
Update: This story confirms that the second request was to CIA, which referred it back to the FBI.
Meanwhile, a review of Russia’s contacts with the U.S. authorities, shows that six months after the Russians asked the FBI to review the activities of Tsarnaev’s brother, Tamerlan, Russian authorities made an identical request to the CIA.
The official, who is not authorized to comment publicly, said the CIA was aware of the FBI’s prior review—which turned up nothing improper—and referred the Russian request back to the FBI.
The CIA is prohibited from conducting intelligence operations on U.S. soil.
The FBI, which had closed its review on Tsarnaev in June 2011 after sharing its results with Russian officials, again contacted their Russian counterparts, asking if they had developed additional information on the Cambridge, Mass., man.
But the official said Russian authorities never responded.
This story notes that FSB has been accompanying the FBI as it questions the Tsarnaev parents and provides background on all the ways US-Russian relations are strained right now.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-04-24 16:23:352013-04-24 16:54:07The Intelligence Committee’s “Secret” Briefings on the Boston Attack
To celebrate Sunshine Week last week, the Office of Director of National Intelligence released to Jason Leopold that office’s memo on ramped up use of polygraphs to crack down on leaks.
The memo requires that polygraphs incorporate the following guidelines about what constitutes a leak.
“Unauthorized recipient” includes any U.S. person or foreign national without a need to know or not cleared at the appropriate level for the information, including any member of the media.
“Unauthorized disclosure” means a communication, confirmation, acknowledgement, or physical transfer of classified information, including the facilitation of, or actual giving, passing selling, keeping, publishing, or in any way making such information available, to an unauthorized recipient.
Classified information includes information classified at any level, including Confidential, Secret, or Top Secret. [my emphasis]
Note these categories are — at least as listed in the memo — position independent. No matter who does these things, an unauthorized disclosure of classified information to an unauthorized recipient is a leak.
Including the acknowledgement of classified information that may be already public.
Funny, then, that Clapper celebrated the confirmation of John Brennan at the Global Threats hearing last week. Because as part of Brennan’s confirmation process, he responded this way to a Richard Burr supplemental question about his own leaks.
Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.
In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclose classified information.
Now, this doesn’t mean CIA Director Brennan will fail the polygraph question his new boss set up last year. At multiple times in his confirmation process, he admitted that he talks to journalists, up to and well beyond “acknowledging” information already out there. (Though he proved remarkably unwilling to provide the Senate Intelligence Committee a list of those acknowledgements leaks, which is one reason Saxby Chambliss voted against him.) He’s honest that he’s a leaker, though he himself excuses his own leaking because he’s so high ranking.
But as the effects of Clapper’s new system become clear, remember that he thinks John Brennan, an admitted leaker, is a great guy to head up the CIA.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-03-18 03:14:342013-03-18 03:31:19According to James Clapper, John Brennan Is a Leaker
John Brennan has now been asked three times (four, presuming Richard Burr asked during the closed hearing, as he said he would) to list the specific times he has leaked to journalists. He has refused all the unclassified questions, as he does here in his supplemental questions.
Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.
In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclosure classified information.
Burr wants a list. Brennan isn’t giving him one.
Noted.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-02-15 15:24:512013-02-15 15:24:51Brennan Continues to Stonewall on His Own Leaks
Dianne Feinstein announced yesterday that the Senate Intelligence Committee would not, as originally planned, vote on John Brennan’s nomination today. No Valentine’s Day love for Brennan I guess.
DiFi cited outstanding questions on Benghazi and the 7 OLC memos the White House has withheld.
That’s important background to this Joshua Hersh story, which makes fun of Richard Burr (who had just made a joke about his relative Aaron Burr killing Alexander Hamilton) grilling Jack Lew about who briefed Obama on Benghazi the night of the attack. As Hersh points out, the White House has released a picture showing Denis McDonough briefing the President that day, which ought to answer Burr’s question.
What Hersh doesn’t say is that Burr specifically asked Lew whether Brennan was in this loop. In the closed session on Tuesday, apparently, Brennan said he wasn’t. This comes on top of the White House withholding — at least as of last Thursday — Presidential Daily Briefs and some emails about the response to Benghazi as it unfolded.
Now, Lew’s role in Benghazi briefings really won’t affect his job as Treasury Secretary. But Brennan’s role might, particularly if the Murdoch boosted eBook alleging he was running ops in Libya out of the White House is true (I’m not saying it is).
In any case, the persistence of the Benghazi truthers has introduced an interesting dynamic I didn’t expect. Of the Republicans on the Senate Intelligence Committee, only Susan Collins and possibly Tom Coburn are not full-on Benghazi truthers (and James Inhofe, who gets a vote if he wants one as Armed Services Committee Ranking member, could add another truther vote).
But Collins is part of the other group — along with at least Ron Wyden and Mark Udall — holding up Brennan’s nomination, those demanding the 7 OLC memos on targeted killing the White House has thus far refused to turn over to the Committee purportedly overseeing these killings. That puts the vote somewhere in the vicinity of 9 votes holding out for something from the White House, 6 votes ready to vote Brennan’s nomination forward.
So who will the White House cede to? The Benghazi truthers, or the OLC holdouts? And is what is in the material the White House has thus far withheld enough for these groups to vote against Brennan?
Note, there’s always the possibility these groups will converge. The public record supports the conclusion that Libyan militants in Derna claimed to have been struck or at least surveilled by a drone. Those militants have ties, at least, to the militants who carried out the attack on the Benghazi post, and the public record also supports the claim the militants were avenging that drone surveillance or strike. If that drone was approved by an unknown memo authorizing continued strikes in Libya, it would be something that both the Benghazi truthers and the OLC holdouts would be interested in.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-02-14 08:58:442013-02-14 10:26:04The Benghazi Truthers and the OLC Hold-Outs
One of the questions Dianne Feinstein asked John Brennan in his confirmation hearing last week pertained to the role in approving drone strikes he’ll have at CIA. He refused the answer the question directly because the program is classified.
Feinstein: I’d like to ask you about the status of the Administration’s efforts to institutionalize rules and procedures for the conduct of drone strikes. In particular, how do you see your role as CIA Director in that approval process?
Brennan: Chairman, as this committee knows and I’m sure wants to continue to protect certain covert action activities. But let me talk generally about the counterterrorism program and the role of CIA and this effort to try to institutionalize and to ensure we have as rigorous a process as possible that we feel that we’re taking the appropriate actions at the appropriate time. The President has insisted that any actions we take will be legally grounded, will be thoroughly anchored in intelligence, will have the appropriate review process, approval process before any action is contemplated, included those actions that might involve the use of lethal force.The different parts of the government that are involved in this process are involved in the interagency, and my role as the President’s counterterrorism advisor was to help to orchestrate this effort over the past four years to ensure again that any actions we take fully comport with our law and meet the standards that I think this committee and the American people fully expect of us as far as taking actions we need to protect the American people but at the same time ensuring we do everything possible to ensure we need to resort to lethal force.
Brennan was equally evasive to similar questions in the hearing, and did not really answer a very simple question in his questions for the committee, whether the drone rule book had been finalized (see question 39: Is there a drone rulebook? A: Not so much a rulebook as little scraps of paper strewn around I sometimes lose).
But let it be noted that when the Chairwoman of the committee purportedly overseeing this program asked him what his role would be, as CIA Director, under the new rule book — a topic which has been addressed in part in the press — he suggested he couldn’t answer because it was classified.
Less than three hours later, this exchange occurred.
Burr: On January 15th of this year, the President signed the 2012 Intelligence Authorization Act, which requires congressional notification of any authorized disclosure of national intelligence. Now, we’ve not received any notification of authorized disclosures. Have there been any authorized disclosures to your knowledge?
Brennan: I would like to say that since you haven’t received any notification there haven’t been.
Burr: Would you consider the information reported in the press about the counterterrorism playbook unauthorized disclosure?
Brennan: Um, I don’t know which piece you’re talking about. There’s been a lot of discussion out there in the media and in the newspapers about this, so I don’t know specifically about any classified information — the fact that the Administration may be going through a process to try to institutionalize, codify, make as rigorous as possible our processes and procedures in and of itself is not a classified issue. So those details that are classified — I don’t know of any that came out in some of those reports.
Burr: If there are classified information that’s out there, and it’s not authorized, was there a crime report filed relative to the playbook?
Brennan: Um, presumably there was, Senator. Those decisions as far as initiating criminal investigations are done by those departments and agencies that have stewardship of that classified information. And in discussions with the Department of Justice they make the determination whether or not, in light of the fact that so many people have access to it, how they can proceed with some type of criminal investigation.
There have been two major stories on the drone rule book since Obama signed the new intelligence authorization and each contains information that is almost certainly classified. This January 19 WaPo story reveals that CIA Director John Brennan won’t have to play by the rules for the next year in Pakistan.
None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-02-11 12:50:112013-02-11 12:56:11John Brennan Can’t Even Last One 3-Hour Hearing without Engaging in Information Asymmetry
Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).
There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.
But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.
In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.
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.
To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.
The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.
And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.
Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.
As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.
But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.
In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.
The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-02-10 23:29:172013-02-11 08:49:30Garbage In, Garbage Out: The Problem with a FISA Drone Court
