Did Obama Flip-Flop on FISA to Protect John Brennan?

Aside from his career of moderate political stances, the earliest clue that progressives were going to be disappointed with Barack Obama came last July, when he flip-flopped on his previous promises to oppose retroactive immunity on FISA. Yesterday’s IG Report may reveal the source of Obama’s flip-flop and subsequent reversal of his stance that Bush’s domestic surveillance program was illegal: John Brennan.

Brennan, you see, appears to have been a key figure in the illegal surveillance program from at least May 2003 through December 2005–precisely the period when the program was such an object of controversy internally.

While it was apparent from the Scope of the IG Report released in March and the various declarations in support of State Secrets that the Intelligence Community provided threat assessments that were used in the program, the IG Report provides a great deal of new detail on this process and–more importantly–a chronology describing which element of the IC conducted the threat assessments. The chronology is:

October 2001 to May 2003: DCI Chief of Staff (then John Moseman)

May 2003 to August 2004: Terrorist Threat Integration Center

August 2004 to April 2005: National CounterTerrorism Center

April 2005 to January 2007: ODNI

Now look at John Brennan’s career path (these dates are somewhat vague, but accurate to the best of my knowledge):

March 2001 to May 2003: Deputy Executive Director, CIA

May 2003 to August 2004: Director, Terrorist Threat Integration Center

August 2004 to December 2005: Interim Director, National CounterTerrorism Center (including ODNI after April 2005)

While Spencer is right that John Brennan was not the guy who compiled these assessments when the program first began (that is, John Brennan was no longer DCI COS), Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.

For at least a year and possibly two, John Brennan appears to have been the guy inventing "reasonable cause" to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

And John Brennan was consulting with candidate Obama last year when Obama flip-flopped.

And John Brennan remains a key national security advisor for Obama as the President has cowardly refused to prosecute a program he himself once called illegal.

Are Obama and Eric Holder refusing to prosecute illegal domestic surveillance because they’re protecting a key member of Obama’s Administration? Are they sustaining Bush’s State Secrets invocations to protect one of their own?

Update: Here’s John Brennan in March 2008, aggressively pushing for telecom immunity.

Update: And from an interview with Shane Harris, on reasonable cause to wiretap–precisely what Brennan appears to have overseen.

Brennan: There are many types of scenarios for signals [for example, telephone calls and e-mails] to be accessed. But whenever this happens, there needs to be some substantive predicate, a probable cause, that someone is being targeted appropriately. There is an important issue about timeliness. And even though you can go through the FISA process, particularly when you’re dealing with terrorism issues, there needs to be an understanding that intelligence agencies can move quickly if certain predicates are met. We shouldn’t be held hostage to a complicated, globalized [information technology] structure that puts up obstacles to that timely collection. I think there are some very, very sensible people on both sides of the partisan divide trying to make this happen. And it’s unfortunate that it’s become embroiled now in a partisan debate in some quarters. But I think that’s expected in any election year, especially one like this.

[snip]

Q: You know that one big debate about FISA is the question of balancing security and privacy and civil liberties. Speaking as someone who has spent your life in counterterrorism, what do the terms "privacy" and "civil liberties" mean to you, and what is that balance?

Brennan: First of all, privacy and civil liberties mean so many different things to different people. There are people on one end of the spectrum that don’t want to have any government interference or insight into what you’re doing.

To me, I think the government does have the right and the obligation to ensure the security and safety of its citizens. If there is probable cause, reasonable suspicion, about the involvement of a U.S. person in something, the government needs to have the ability to understand what the nature of that involvement is. The threshold for that type of government access can be high or can be low, and it needs to be somewhere in the middle.

It really gets back to that issue of what is the substantive predicate. … I f we know there’s a terrorist overseas that has been involved in activities, but he’s also an import-export dealer, and he reaches out to Shane Harris because you happen to be an importer of stuff — you’re a U.S. citizen — and we can see there’s contact going on there, well, is that sufficient to give us reasonable suspicion that Shane Harris is involved in something? And Shane Harris happens to be in touch with somebody in his neighborhood that has a past record in engagement in some type of things. So there is going to be a judgment call here.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. BillE says:

    So, when exactly did Obama know to protect Brennan? Did Brennan tell him “save me” And did he tell him why? Does that mean Brennan also has been blabbing about top secret materials to people who shouldn’t have known about it. ( at the time of the flip flop. )

    • emptywheel says:

      I’m not alleging Brennan leaked classified information and there’s no reason to think he was. Though keep in mind that Obama did get briefings when he became the candidate (so May).

      • BillE says:

        I was thinking what was on Obama’s mind to protect Brennan. Why did he want that guy above all others. I have wagged the blackmail tail many times and don’t want to jump to conclusions but why, what possible motive is there to protect someone like Brennan. What constituency does BO gain by doing that?

        Does anyone think that the political briefings made to the presidential candidates included a program so secret nobody else knew ( except Brennan of course ) We should ask McSame if he knew about this stuff. Otherwise, Brennan has either played Obama or has him by the short ones somehow.

  2. phred says:

    EW, do you know what the connection between Obama and Brennan is? Why did Obama listen to him last year and why did Obama bring him into his administration? Why wouldn’t Obama write-off a guy so clearly compromised and find someone else to listen to/appoint?

    • PJEvans says:

      I’m not sure Obama knew about all of this. He ought to, by now, but he’s being backed into all kinds of corners by the Bush moles and the Blue Dogs (Rahm prominent among them), and will need the political chainsaw to get out of that corner.

      • phred says:

        The question is why Obama is influenced by Brennan. That’s what I don’t get. Have they been friends for 20 years? Surely if they had no history Obama could have found someone else. And that gets to the larger issue of the army of Bush holdovers… Why? Is it just because he doesn’t know anybody as Helen Thomas asked? This baffles me.

  3. bobschacht says:

    Is Rizzo still on staff?

    Have either of these guys got something on Obama that give them a hold on his short hairs?

    Obama’s farewell speech in Ghana, which I just heard live, departs significantly, IMHO, from the transcript that has been circulated in advance. I’d like to get the actual transcript, because he says some of the same magnificent things about accountability, transparency, and the rule of law that he said on the campaign trail and has seemed to ignore as president.

    Bob in HI

  4. fatster says:

    Following your excellent (as usual) analysis, this surely looks like he [Brennan] could be the reason for the flip-flop. I clicked on the link you provided in the “Update” and the picture there was quite disconcerting.

  5. fatster says:

    Obama Taps CIA Veteran As Adviser On Terror

    Brennan Has Drawn Fire on Interrogations
    By R. Jeffrey Smith
    Washington Post Staff Writer
    Friday, January 9, 2009; Page A01

    “The president-elect’s decision comes only six weeks after Brennan was forced to pull out of contention for the directorship of the CIA because of fears that his statements supporting some controversial interrogation techniques would have complicated his confirmation.

    “The firm Brennan heads, the Analysis Corp., and its corporate parent have earned millions of dollars over the past decade assisting several federal agencies and private firms on counterterrorism. Those oil and telecommunications firms have worked in countries beset by violence, including Mozambique, Liberia, Colombia and Pakistan — all of which have been topics of intense policy debate in Washington.”

    [an interesting “Correction” was added at the top of the article]

    Link.

  6. TarheelDem says:

    So exactly what is it that Brennan provided Obama?

    I do believe that you are on to something here.

    • fatster says:

      Do we dare hope? Or is this one of those “shiny objects” put out there for our amusement/bemusement?

    • Garrett says:

      Holder and his team celebrated quietly, and waited for national outrage to build. But they’d miscalculated. The memos had already received such public notoriety that the new details in them did not shock many people. (Even the revelation, a few days later, that 9/11 mastermind Khalid Sheikh Mohammed and another detainee had been waterboarded hundreds of times did not drastically alter the contours of the story.)

      The level of influence and effect being asked for here is “drastic”. Mixed up with Newsweek not being interested in who Abu Zubaydah is. Or the various DFHs. Who they nonetheless read, with enough attention to be able to tell Wednesday from Saturday.

  7. bobschacht says:

    Regarding the second update, I think it is revealing about Brennan’s thinking. Notice the high importance he places on “the right and the obligation to ensure the security and safety of its citizens,” alongside a lack of mention of defending the Constitution. He airily dismisses Human Rights concerns as “privacy and civil liberties mean so many different things to different people,” as if civil rights is merely a matter of personal opinion, as if the Constitution didn’t even exist. Oh well, its just a piece of paper, I suppose.

    Frontline did a piece on John Brennan a while back, and Greenwald did a piece on him last November.

    Bob in HI

  8. bobschacht says:

    Obama here as elsewhere seems to be following the maxim, ”Hold your friends close and your enemies closer.” Trouble is, Obama is finding out that such troublesome characters can do damage and are not controllable. Sooner or later, Obama needs to sort things out.

    We are still only 6 months into his presidency, but things seem to be happening on an accelerated time scale. He has piled his plate high with difficult issues. Can he manage them all? Or will there be a dam-burster?

    BTW, I am reading his early book about his father for clues into how his presidency is developing. It is an interesting read.

    Bob in HI

  9. bobschacht says:

    Does Brennan have dual allegiances? Here’s the Wiki on his “other job”[http://en.wikipedia.org/wiki/The_Analysis_Corporation]:

    The Analysis Corporation (TAC) is a defense contracting company focused on US national security. Since its inception in 1990, TAC has been working on projects in the counterterrorism (CT) and national security realm by supporting national watchlisting activities as well as other CT requirements. Based in McLean, Virginia, it is a wholly owned subsidiary of Global North America, a Global Strategies Group Company.

    According to TAC, the company is guided by its corporate mission: “To anticipate and to meet evolving international security needs, especially in the counterterrorism field, by providing expert and highly trained intelligence personnel, innovative information technology systems, and insightful consulting support.”

    TAC, which is staffed by other former senior officials from the Intelligence Community, operates within almost every entity in the Intelligence Community including the Department of State, Department of Homeland Security (DHS), Federal Bureau of Investigations (FBI), and Defense Intelligence Agency (DIA).

    TAC’s key practice areas include intelligence and law enforcement support for terrorist screening, watch-list development and operations; intelligence analysis; systems integration and software development; multi-lingual name search and pattern matching. It has been awarded some $75m in government contracts since 2000, including some $30.6m in 2007 and $19.5m in 2008.[1] Customers include the Department of State and the FBI.

    Since 2005 its CEO has been John O. Brennan, former head of the National Counterterrorism Center and a 25-year veteran of the CIA.[2]

    In January of 2009, Brennan, was selected by President Obama to serve in his Administration as Homeland Security Advisor and Deputy National Security Advisor for Counterterrorism.

    In early 2008 TAC found itself in the midst of a scandal when a State Department spokesman revealed that a TAC contractor gained unauthorized access on March 14 to the passport records for Barack Obama and John McCain.[3]

    The TAC employee, who has not been named, is the only individual to have accessed both Mr. Obama’s and Mr. McCain’s passport information without proper authorization, a State Department spokesman said. The employee’s actions triggered an electronic alarm system, according to sources familiar with the probe.[4] TAC strongly disavowed the employee’s actions in a subseqeuent press release.[5]

    Can Barack really control Brennan, or is he a loose cannon?

    Bob in HI

    • behindthefall says:

      Does having had a TAC-man pry into the now-President’s records put the TAC CEO over a barrel wrt the Prez? Does that incident make it easier for POTUS to rein in Brennan as needed?

  10. whitewidow says:

    Isikoff has a new article up on Holder.

    Four knowledgeable sources tell NEWSWEEK that he[Holder]is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter.

  11. Loo Hoo. says:

    And Hayden screeches:

    WASHINGTON — Former CIA Director Gen. Michael Hayden angrily struck back Saturday at assertions the Bush administration’s post-9/11 surveillance program was more far-reaching than imagined and was largely concealed from congressional overseers.

    In an interview with The Associated Press, Hayden maintained that top members of Congress were kept well-informed all along the way, notwithstanding protests from some that they were kept in the dark.

    • esseff44 says:

      Here’s a link to Speaker Pelosi statement wrt the IG report. She includes a letter to Hayden asking for more info about subject activities.

      http://speaker.house.gov/newsr…..es?id=1266

      I think she might have a collection of these letters somewhere not yet declassified as well as some declassified.

  12. nolo says:

    Slightly tangential; O/T, even, perhaps — but finally Scott Shane gets one right, at the NYT:

    . . .The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

    . . .The law requires the president to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.” But the language of the statute, the amended National Security Act of 1947, leaves some leeway for judgment, saying such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”

    In addition, for covert action programs, a particularly secret category in which the role of the United States is hidden, the law says that briefings can be limited to the so-called Gang of Eight, consisting of the Republican and Democratic leaders of both houses of Congress and of their intelligence committees.

    The disclosure about Mr. Cheney’s role in the unidentified C.I.A. program comes a day after an inspector general’s report underscored the central role of the former vice president’s office in restricting to a small circle of officials knowledge of the National Security Agency’s program of eavesdropping without warrants, a degree of secrecy that the report concluded hurt the effectiveness of the counterterrorism surveillance effort. . .

    Posted 5 minutes ago — Headline looks likely to prod Holder to take aim at the Dick, directly.

    Or so I hope.

    Namaste

    • Waccamaw says:

      One can only hope that first ‘graph is a sign of the threads beginning to unravel sufficiently that the fabric of this whole sordid mess will weaken enough to be torn to shreds.

    • esseff44 says:

      Mr. Hoekstra said he believed Congress would not have approved of executing the plan. “Maybe on Sept. 12,” he said, but not later, when the fear of a wave of additional terrorist attacks began to diminish.

      Where have we seen that excuse for secrecy before. Oh, yes. Why didn’t they go to Congress to get broader powers for FISA. Because they had decided that Congress would not give them what they needed, so they just went ahead without consulting or informing anyone who would disapprove. This seems to have been the SOP of the Bush WH for not following the law.

  13. Mary says:

    So Shane says that

    * a CIA “unit” brought to the program to Panetta’s attention – kind of an odd way to phrase that, isn’t it?

    *Cheney directly ordered that the project be concealed from Congress by CIA – and he had that authority by virtue of …? Would have been a nice question for Shane to ask – was there a Presidential finding/directive etc. with the program that also delegated Presidential power over the program to Cheney?

    *the program supposedly does not involve domestic intelligence activiies and supposedly does not involve the interrogation program

    *the program was started by the counterterrrism center (if it kept running out of it, there’s another overlap with Brennan)shortly after 9/11

    *planning and training for the program took place from shortly after 9/11 through pretty much now, although the program never became “fully operational”

    Hmmm.

    @12 – thanks for the link on the Holder piece. The really sad part of it is reading how Holder’s crew at DOJ was only belatedly realizing something that has been pretty evident for the last few years – something that is a direct result of year after year after year of the Dept of Justice defending torture and year after year after year of the complete denial that anyone we disappeared and tortured was anything other than Bin Laden’s soulmate. Coupled with a press that has eschewed torture for patriotism as the topics de jure.

    Once they saw the memos, they apparently really believed that all it would take is releasing them to cause a groundswell of outrage that would require the appointment of a special prosecutor. They watched as the release created no ripples, anywhere. The editorializing in the piece, that:

    “The memos had already received such public notoriety that the new details in them did not shock many people.”

    falls very far short of the mark IMO. Years of acquiesence in, and promotion of, Executive branch crime by DOJ and the media have reshaped this country. That’s really the saddest aspect; it isn’t just the crimes against innocents and children that so many were so greedily happy to commit, it’s how remorselessly they were willing to reshape the values of a whole nation to protect themselves from the inconvenience of telling the truth about what they’ve done. The “patriots” that Obama wants to protect thought nothing of basically killing this nation and recreating it in a lesser image, for the great and glorious purpose of promoting torture.

    I don’t know which is sadder – that DOJ has so relentlessly and remorselessly helped pursue the promotion of torture by the Sovereign as a state secret, torture done by patriots to save the nation, to the point that they have for years now been successfully reshaping the nation, or that the best and brightest at Holder’s DOJ would be surprised when given evidence of that success.

    Even in this piece, the editorialized comment in the article is that if Holder does appoint a special prosecutor:

    Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform.

    Oh please. Let see – abu ghraib prosecutions, did those “roil” the country and “plunge” DC into partisan divides? Hell, Democrats have the theoretic ability (that they will never in fact exercise) to actually accomplish something if they made a moderate effort is all it takes to promote partisan warfare.

    And somehow it isn’t Blue Dogs and big pharma and Republicans and Lieberman and insurance companies etc. that are going to “imperil” (nice word choice for guys who shy away from calling freezing someone to death torture) Obama’s health care policies – it’s not even Obama himself, refusing to kick butt over the public option. It will all be Holder’s fault for seeking prosecution of torture. What a crock.

    [BTW – from the Holder piece, I’m guessing EW will like the reference by Holder’s wife to “Rich’s conniving lawyers” – golly, who might she have meant?]

    • esseff44 says:

      But in late June Holder asked an aide for a copy of the CIA inspector general’s thick classified report on interrogation abuses. He cleared his schedule and, over two days, holed up alone in his Justice Depart ment office, immersed himself in what Dick Cheney once referred to as “the dark side.” He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was “shocked and saddened,” he told a friend, by what government servants were alleged to have done in America’s name. When he was done he stood at his window for a long time, staring at Constitution Avenue.

      Newsweek article

      He seems to have had something that was lacking in the previous administration…a conscience. It sounds like he may have to fend off Rahm to apoint a special prosecutor for EIT’s/torture, but more power to him.

  14. Valley Girl says:

    I just gotta say, EW, I read your pieces because of what you do, but also because you attract the smartest commenters. Hi Mary! (not to leave anyone else out, but Mary and I, well, we go back a bit)

  15. Mary says:

    Hi backatcha Valley Girl. It’s really good to cybersee you. Hope this isn’t too epu’d for you to see. The rate of posts and topics the last 24 hours +/- is pretty dizzying.

  16. tjallen says:

    Brennan- “the government needs to have the ability to understand what the nature of that involvement is. The threshold for that type of government access can be high or can be low, and it needs to be somewhere in the middle.”

    Uhm, that’s not what the Constitution says. It says “probable cause,” not some imaginary middle level of government access to my affairs, as defined by a fearful CIA counterterrorism official. Understand “government of laws, not men” ? Why is Brennan’s opinion of when the government can interfere in my affairs more important than what the Constitution actually says?