Cofer Black

Cofer Black Gets to Rebut Torture Report that Shouldn’t Include Him

Brennan with TortureIn a piece that gets at some of the points of leverage between the White House and CIA over torture, Mark Mazzetti describes George Tenet’s effort to “challenge” the torture report.

It suggests Brennan’s close ties to Tenet — Brennan was once Tenet’s Chief of Staff – led the CIA Director to reach out to Tenet to lead pushback. It describes how Brennan’s close ties to Obama Chief of Staff Denis McDonough from when he served as White House Counterterrorism Czar led McDonough to intervene when Dianne Feinstein tried to require any CIA review to take place in Senate Intelligence Committee space.

All that’s beside the real source of CIA’s power over the White House — the fact that torture operated as a Presidentially-authorized covert op for years, as has the drone program, which means CIA has the ability to implicate both George Bush personally (and Obama, in illegal drone strikes), as well as the Office of the President more generally.

My favorite detail, however, is that Cofer Black has also been involved in this pushback campaign.

Just after the Senate Intelligence Committee voted in April to declassify hundreds of pages of a withering report on the Central Intelligence Agency’s detention and interrogation program, C.I.A. Director John O. Brennan convened a meeting of the men who had played a role overseeing the program in its seven-year history.

The spies, past and present, faced each other around the long wooden conference table on the seventh floor of the C.I.A.’s headquarters in Northern Virginia: J. Cofer Black, head of the agency’s counterterrorism center at the time of the Sept. 11 attacks; the undercover officer who now holds that job; and a number of other former officials from the C.I.A.’s clandestine service. Over the speakerphone came the distinctive, Queens-accented voice of George J. Tenet.

Over the past several months, Mr. Tenet has quietly engineered a counterattack against the Senate committee’s voluminous report, which could become public next month. [my emphasis]

According to Ken Dilianian’s version of the same story, Black will not be allowed to preview the report — he’s probably among the dozen people who thought they could review it but recently learned they would not be able to.

About a dozen officials were called in recent days and told they could read the executive summary at a secure room at the Office of Director of National Intelligence, as long as they agreed not to discuss it, four former officials said.

Then, on Friday, CIA officials called them and told them that due to a miscommunication, only former CIA directors and deputy directors would be given that privilege. Former directors Michael Hayden, Porter Goss and George Tenet have been invited to read it, as have former acting directors John McLaughlin and Michael Morell.

Black’s involvement, of course, should be a story unto itself.

According to the CIA’s official version of torture, it got authorized under the September 17, 2001 Finding by language authorizing the capture and detention of top Al Qaeda officials. But they didn’t start considering torture until they picked up Abu Zubaydah at the end of March in 2002. They didn’t start torturing, the official story goes, until DOJ gave them the green light in August 1, 2002.

Why, then, would Black need to be involved in the torture pushback?

He left the Counterterrorism Director spot in May 2002, well before the torture started — at least according to the CIA version, but not the personal experience of Ibn Sheikh al-Libi and Binyam Mohamed, both of whom got tortured before Black’s departure. In his book Jose Rodriguez claims, falsely, the torture program started in June, and he led it. If this official CIA chronology is correct, Black should have had no role — and no personal interest — in the torture program.

And yet there he is with the other torturers, leading pushback.

Even in their pushback effort, then, the CIA proves that they’ve been lying for years.

The Neverending CIA Drone Story Actually about Outsourced Intelligence

On March 20, 2013, I wrote one of several stories calling bullshit on reports that CIA would get out of the drone business. Not only did John Brennan’s actions up to that point (as opposed to what had been leaked to journalists anonymously) make it clear he intended for CIA to keep that portfolio. But his confirmation testimony made it clear he intended to retain and use CIA’s paramilitary — as distinct from traditional military — capabilities (and no, I’m not sure where the line between the two lies).

Today, the NYT has another of those stories reporting that — shock!! — I was right after all. It has a new twist though. It selectively quotes from Brennan’s confirmation materials to suggest he testified he would get CIA out of paramilitary operations.

During his confirmation hearings, Mr. Brennan obliquely criticized the performance of American spy agencies in providing intelligence and analysis of the Arab revolutions that began in 2009, and said the C.I.A. needed to cede some of its paramilitary role to the Pentagon.

“The C.I.A. should not be doing traditional military activities and operations,” he said.

This is what the quote actually looked like in context.

MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.

And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?

BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.

[snip]

And the CIA should not be doing traditional military activities and operations. [my emphasis]

That is, Brennan was not suggesting CIA should get out of paramilitary ops. On the contrary, he said CIA should retain that ability but not do traditional military activities.

His responses to questions for the record were even more clear.

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

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

How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action?

As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly.

The NYT quotes one more Brennan claim with much more fidelity, however, and in a way that is far more illuminating to the story it tells.

“Despite rampant rumors that the C.I.A. is getting out of the counterterrorism business, nothing could be further from the truth,” the C.I.A. director said during a speech last month at the Council on Foreign Relations.

The agency’s covert action authorities and relationships with foreign spy services, Mr. Brennan said, “will keep the C.I.A. on the front lines of our counterterrorism efforts for many years to come.”

Those lines come from this speech, which was most closely watched as Brennan’s rebuttal to Dianne Feinstein on the torture report, but which in fact declared the war on terror would continue along the same lines as it had since 9/11.

And despite rampant rumors that the CIA is getting out of the counterterrorism business, nothing could be further from the truth. CIA’s global mission, our intelligence collection, analysis, and covert action authorities and capabilities, as well as our extensive liaison relationships with intelligence and security services worldwide, will keep CIA on the frontlines of our counterterrorism efforts for many years to come.

Which is interesting, because the items reported in NYT’s story all say more about the US remaining hostage to the way we outsourced certain intelligence activities after 9/11 than anything else.

As a reminder, the Gloves Come Off Memorandum crafted by Cofer Black and signed on September 17, 2001 included a number of different activities. In addition to capturing and detaining top al Qaeda leaders (which became the torture program) and killing top al Qaeda figures using Predator drones (which remains in CIA hands), it authorized heavily subsidizing (“buying” was the word Bob Woodward used) Arab liaison services, originally including Jordan and Egypt but presumably adding Saudi Arabia once we got over the fact that the Saudis had ties to the attack. In a 2006 interview, John Brennan echoed and endorsed Cofer Black’s plan when discussing the war on terror.

With that in mind, consider the real scope of the details described in the NYT story:

  • After another catastrophically badly targeted strike — this time on a wedding — Yemen has banned JSOC’s drones but continues to permit CIA to fly them; CIA’s flights operate out of Saudi territory, presumably with significant Saudi involvement
  • Pakistan continues to permit only drone strikes run by CIA
  • Jordan required that CIA be in charge of training Syrian rebels and other fighters there
  • CIA missed the Arab Spring because it relied so heavily on Egypt’s Omar Suleiman, to whom we had outsourced our earliest torture

That is, the NYT is really reporting that, in spite of nominal efforts to change things, we remain captive to those relationships with liaison services, almost 13 years after 9/11. And that happens to also translate into operating drone strikes in such a way that two countries which were implicated in the 9/11 attacks — Pakistan and especially Saudi Arabia — have managed to stay relevant and above criticism by sustaining (perhaps artificially) our dependence on them.

And, almost certainly, the President’s implicit role in all these actions gives the CIA the institutional clout to make sure it retains whatever parts of this portfolio it cares to.

This, at least, should be the story.

In all of these countries, it’s not clear whether our reliance on these long-term partners helps or exacerbates the war on terror. But no one should maintain any illusions that it will change.

American Dirty Hands and Chain of Command

[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War

On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.

On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.

George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.

Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)

Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.

The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:

  • The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
  • One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
  • The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets

Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement. 

But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.

There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.

As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.

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John Brennan Promises to Take the Gloves Off

In response to John Brennan’s nomination, PBS sent out the clip from their 2006 interview in which he endorsed taking the gloves off. I find that clip, plus the complete interview transcript, all the more instructive given what has transpired with the Gloves Come Off Memorandum of Notification in the last two years and, I suspect, in last week’s opinion refusing to release the targeted killing memo. (Here’s a post describing the MON, and here’s the entire series: post 1post 2post 3post 4post 5post 6,post 7post 8, post 9, plus post 10 and post 11.) The short version of those posts is that the Executive Branch doesn’t consider the OLC memos the authorizing documents for its counterterrorism program–it considers this MON that document. But it is written such that it permits both the Agency and the Executive to avoid all accountability for these law-breaking programs.

Here, when the interviewer asks Brennan about “the Dark Side”–the title of the program–Brennan responds instead by talking about “taking the gloves off.”

Why would the vice president, and even the secretary of defense, want to talk about or have the country or want to warn the country about going to “the dark side”?

I don’t know. You’d have to ask them. … The point is the war or the campaign against terrorism can be a long one, and that the opposition, whether it be Al Qaeda, or whether it be Iraq, doesn’t play by the Marquis de Queensbury rules. Therefore, the U.S. in some areas has to take off the gloves. And I think that’s entirely appropriate. I think we do have to take off the gloves in some areas, but within balance, and at the right time and the right way, and for the right reason and with full understanding of what the consequences of that might be. [emphasis mine]

As I observed, the interviewer asks about “the Dark Side”, but then Brennan offers up the term “gloves come off” instead. He does so, notably, with regards to both al Qaeda–the terrorists–and Iraq (in 2006!)–the nation-state against which we trumped up a war. He not only endorses the notion that the Iraq war was part of the war on terror, but also that the US could “take its gloves off” even in a war with another nation-state purportedly governed by the traditional law of war.

In the phrase, John Brennan is endorsing “taking the gloves off,” in the name of terrorism, with any country we happen to be fighting that might–maybe–play dirty.

Then the interviewer asks Brennan–first and foremost–about the Bybee memo, but also about the AUMF. Brennan responds by talking about Findings.

One of the things that [the administration does] right away is get lots of legal justifications lined up, from the Bybee memo [the so-called "torture memo"] to everything, commander-in-chief power, the War Authorization Act. Would there have been very much difference between what Tenet believed the CIA should do in terms of renditions and all of it and what we can assume the vice president and the president and others would want the CIA to do? Was Tenet especially more careful, more cautious, more anything than they were sounding like they were?

I think George had two concerns. One is to make sure that there was that legal justification, as well as protection for CIA officers who are going to be engaged in some of these things, so that they would not be then prosecuted or held liable for actions that were being directed by the administration. So we want to make sure the findings and other things were done appropriately, with the appropriate Department of Justice review. [brackets original; my emphasis]

At least one and probably two courts have said that no sitting Administration official has admitted that all the law-breaking in pursuit of terrorists was authorized not by an OLC memo, but first and foremost a Finding.

Oh yes one has.

And he did so in a conversation framed precisely in the same way Cofer Black, author of the Gloves Come Off MON, did.

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Is the Drone “Rule Book” an Effort to Force Kill-Not-Capture?

After reading the response to Scott Shane’s article on the drone rule book, I wanted to add a few thoughts.

First, much of the treatment of the article treated the description of the rule book itself as news. It’s not. Greg Miller discussed the effort in an article last month.

White House counterterrorism adviser John O. Brennan is seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism

The news in the Shane article is that the effort to codify the drone program accelerated–and now has lost urgency–because of the possibility that someone like Cofer Black rather than John Brennan would be running the drone program in a Romney Administration.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

That’s why I’m not sure we should assume that Obama ever intended the rules as limits on what Mitt’s Administration might do.

There are at least two other possibilities.

While it’s unclear whether this rule book effort is just part of or is the same thing as the disposition matrix also described in Miller’s article, that article does make it fairly clear the codification effort strives to make the drone program more permanent, even to streamline it (and to centralize it under oversight-free White House personnel rather than the Joint Chiefs).

Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it.

This year, the White House scrapped a system in which the Pentagon and the National Security Council had overlapping roles in scrutinizing the names being added to U.S. target lists.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.
[snip]
For an administration that is the first to embrace targeted killing on a wide scale, officials seem confident that they have devised an approach that is so bureaucratically, legally and morally sound that future administrations will follow suit. [my emphasis]

That is, the rush to implement the rule book may have been an effort to ensure the program’s permanence, to force Mitt to keep it.

And while there’s no doubt he would have (as Miller pointed out in his article), consider the alternative. Mitt’s Administration likely would have included the architect of the torture program, Cofer Black, and a former CIA Director, Michael Hayden, who has repeatedly called for retaining the torture program.

The effort to institutionalize the drone program may have been a bid to sustain the kill-not-capture preference of the Obama Administration (though the “disposition matrix” appears to have been an effort to invent some alternatives for live capture that Obama hasn’t much used). Though any effort to dictate choices to the dangerously creative Black, I suspect, would have been futile.

There’s one other related possibility.

Hayden, in particular, has been vocal about what the choice to end torture has purportedly brought about: precisely that kill-not-capture choice. Even while defending torture, Hayden has been fairly aggressive in noting how much killing the Obama approach has entailed.

Might it be, then, that the effort to draft a set of “rules” for drone killing was really an effort to make the program look more rational and measured than it has been in practice, to put the best spin on it before another bureaucrats from another party got fully briefed on it?

As Shane notes, Obama’s folks still haven’t decided when and how they use drone killing.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

So even four years in, the program is in fact an ad hoc mess, even if the Administration claims it is not.

And there are a number of killings or targetings that occurred under the Obama Administration–the incidents where “allies” gave us bad targeting data so we would kill their political rivals, the signature strikes that killed civilians, and even the targeting of Americans whom the intelligence community believed were not yet operational–that might be embarrassing if further details were leaked by the incoming Administration.

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

Mitt’s Election Would Just Mean Cofer Black Would Get His Kill List Back

Amidst all the partying and pandering, some actual journalism did take place in Charlotte. Gawker’s John Cook asked the following people about whether Americans could trust Mitt Romney to decide which American citizens to assassinate with drones (definitely click through for the video):

  • Kay Hagen, Armed Services Subcommittee Chair on Emerging Threats
  • Carl Levin, Armed Services Committee Chair and ex officio member of Senate Intelligence Committee
  • Cary Booker, Newark Mayor
  • Lanny Davis, Asshole
  • Brad Woodhouse, DNC Spokesperson
  • Chuck Schumer, Judiciary Committee Member
  • Gloria Allred, bane of bmaz’ existence
  • Bill Press, lefty radio personality
  • Unnamed Arizona delegate

Only Bill Press gives an answer that even recognizes the gravity of the answer.

It’s an interesting question, though, for another reason.

If Mitt were elected, then the Kill List’s rightful owner, Cofer Black, might well get it back. The Kill List–like so much else–goes back to the September 17, 2001 “Gloves Come Off” Memorandum of Notification that Black threw together as a wish list of expansive counterterrorism approaches. (Also on there, btw, was partnering with Libya on torture, which Human Rights Watch further exposed the other day and I plan to return to.) And remarkably, when Cofer Black was in charge of the Kill List, it was used more judiciously than Obama has used it (Black had moved out of the Counterterrorism role at CIA before Kamal Derwish became the first American killed in a drone strike on November 5, 2002). And who knows? If Black took responsibility for the Kill List back, he might choose to focus on torture like he did before.

Don’t get me wrong–I don’t want Cofer Black back in any official capacity. But it’s worth remembering that Obama’s Kill List is really just a hand me down from the guy who, along with the Kill List, also instituted torture and partnership with Moammar Qaddafi.

More Dirty Secrets Go to the Grave

I gotta believe Moussa Koussa is feeling a bit worried these days, as one after another of those harboring the secrets about the torture the US has been complicit with die. Today, Omar Suleiman brought details of how Egyptians tortured Omar Khadr and Ibn Sheikh al-Libi (the latter of whom invented details that Dick Cheney used to drum up war against Iraq), among others, on our behalf to the grave with him.

Egypt’s former spy chief Omar Suleiman died early on Thursday aged 76 whilst undergoing medical tests in the United States.

“He was fine, it happened all of a sudden,” Hussein Kamal, the head of Suleiman’s presidential campaign team and head of his personal office, told Reuters. “He was undergoing medical examinations,” he added, without revealing the cause of death.

Meanwhile, Sky News Arabia quoted an anonymous source stating that Suleiman had been suffering from a blood disease, which led to his death in a Cleveland hospital at dawn Thursday.

Egypt’s state-run news agency MENA claimed Suleiman had developed a lung disease months ago, which later caused heart problems. His health notably deteriorated over the past three weeks, it added.

I expect we’ll see a range of conspiracy theories about Suleiman’s quick death, and on US soil. But then, I guess that’s deserved, given how sordid our relationship with Suleiman has always been.

America’s torturers are outliving the evidence against them. Congratulations are in order, for example, to Dick Cheney; his new heart has given him the ability to outlive one of the witnesses to his crimes. And Cofer Black, who crafted the plan to subsidize the Egyptian torture chambers after 9/11 and now stands poised to reenter government if Mitt Romney wins the Presidency? Congratulations, your soiled slate just got one bit cleaner.

We Can’t Afford Another “Complicated and Quirky” Presidency

You’ve no doubt heard about the BoGlo piece that describes 9 different legal documents on which Mitt Romney was listed as CEO of Bain after the time–in 1999–when he now claims to have left the company.

Romney has said he left Bain in 1999 to lead the winter Olympics in Salt Lake City, ending his role in the company. But public Securities and Exchange Commission documents filed later by Bain Capital state he remained the firm’s “sole stockholder, chairman of the board, chief executive officer, and president.”

[snip]

Romney did not finalize a severance agreement with Bain until 2002, a 10-year deal with undisclosed terms that was retroactive to 1999. It expired in 2009.

[snip]

The Globe found nine SEC filings submitted by four different business entities after February 1999 that describe Romney as Bain Capital’s boss; some show him with managerial control over five Bain Capital entities that were formed in January 2002, according to records in Delaware, where they were incorporated.

I’m envisioning Mitt Romney, in 2017, claiming the treaty he signed with China in 2014 doesn’t really count because he wasn’t really acting as President when he signed it, in spite of his legal status as President.

But I’m most interested in the scant response the Mitt campaign gave.

A Romney campaign official, who requested anonymity to discuss the SEC filings, acknowledged that they “do not square with common sense.” But SEC regulations are complicated and quirky, the official argued, and Romney’s signature on some documents after his exit does not indicate active involvement in the firm.

“Complicated and quirky” says a guy (or gal) now spending his time trying to get Mitt elected to an even more complicated and quirky office, the Presidency.

Frankly, though, there’s precedent for a President claiming “complicated and quirky” absolves him of responsibility for things that occurred under his presidency. After all, while Bush signed the paperwork in the first 6 years of his presidency, it wasn’t until he fired Rummy that Bush actually took over responsibility for the big decisions from Dick Cheney.

And I can’t help but harp on the “complicated and quirky” document–the “Gloves Come Off” Memorandum of Notification, effectively written by now Romney advisor Cofer Black–that has undermined the accountability Presidency more generally. Effectively, that MON pre-authorized the CIA (at least) to do whatever they wanted within certain general areas of organization. It served as Presidential authorization, but insulated the President from any provable involvement in torture and assassination and partnering with lethal regimes. When proof that the President had authorized all this torture threatened to come out via legal means, the current President went to the mat to prevent that from happening.

All the rest–the debates about what Congress authorized the day after this complicated and quirky document, the OLC memos, the repeated investigations that always end up in immunity for all (or almost all)–are just the legal facade that hides the fact that in fact even our Constitution has become “complicated and quirky.” And while Obama at least admits his involvement in these issues–while still hiding them from legal liability–he has chosen to keep the structure in place and has relied on the plausible deniability it gives.

The thing is, as damning as this revelation may prove to be for Mitt, it is in fact quite unsurprising that a man can run for President on a resumé for which–his advisors say, behind the veil of anonymity–he can simultaneously claim credit but no responsibility.

That’s the way this country increasingly works. Even–perhaps especially–the Presidency.

The 4 Month Detainee Review Election Season Special

There’s something else I’ve been puzzling through in the Periodic Review Board directive released the other day governing how the Obama Administration will give the detainees at Gitmo reviews to see if they still need to be held.

The timing.

This DTM is effective upon its publication to the DoD Issuances Website; it shall be converted to a new DoD issuance. This DTM shall expire effective November 5, 2012. The first meeting of the Periodic Review Board (PRB) to consider whether the continued detention of any GTMO detainee is warranted shall occur no earlier than 60 days after notification to Congress in accordance with section 1005(c) of the Detainee Treatment Act of 2005 (Reference (e)).

Maybe I’m misreading the bureacratese. But I read that passage to mean the Directive went into effect on the 9th (Wednesday). The PRB cannot meet until 60 days after DOD tells Congress it will conduct such a review–so June 8, assuming this counts as notice. And then this Directive expires on November 5, literally the day before the Presidential election.

I understand why you’d let this expire on Election Day Eve. After all, if by some miracle Mitt Romney wins, you might want to free everyone to prevent top Mitt advisor Cofer Black from getting a hold of the detainees and shaming the US again.

Even barring a jail break to save these men from Cofer Black, given that it takes years for lawyers to negotiate the representation of Gitmo detainees, what could really be accomplished during four months dominated by a Presidential election.

Unless I’m misreading all this, the answer seems to be, precisely nothing.

“The Gloves Come Off” Memorandum of Notification

Operational flexibility: This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.

-Cofer Black, 9/11 Congressional Inquiry, September 26, 2002

When Cofer Black, the main author of the plan laid out in the September 17, 2001 Memorandum of Notification that appears to be at issue in the FOIA dispute between the CIA and White House and the ACLU (post 1, post 2, post 3, post 4, post 5), testified before the 9/11 Congressional Inquiry, he described the expanded operational flexibility CIA’s counterterrorism efforts gained after 9/11 by saying “the gloves come off.”

As this post shows, the legal means by which “the gloves come off” was the MON in question. Thus, rather than referring to the MON by its date, perhaps the best way for us to think of it is as the “Gloves Come Off MON.”

Before we get into what the MON did, here’s what the National Security Act, as amended, says such MONs are supposed to do. The NSA requires the President to notify congressional intelligence and appropriations committees (or, in rare cases, the Gang of Eight) of any covert operations he has authorized the CIA to conduct. Some important excerpts:

SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President’s decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.

[snip]

(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.

[snip]

(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) [the Gang of Eight], are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).

As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

Basically, the MONs are supposed to provide an up-to-date written notice of all the  potentially very embarrassing things the CIA is doing. And given that MONs cannot authorize unconstitutional or illegal (within the US) actions, it should impose some legal limits to covert operations.

Dick Cheney, in a 1989 speech complaining about Congressional overreach in foreign policy (Charlie Savage just posted this), described how this requirement to inform Congress of covert ops provided a way for Congress to oppose such actions by defunding any ongoing ones.

The 1980 law [requiring notice] did not challenge the President’s inherent constitutional authority to initiate covert actions. In fact, that law specifically denied any intention to require advance congressional approval for such actions.

[snip]

Any time Congress feels that an operation is unwise, it may step in to prohibit funds in the coming budget cycle from being used for that purpose. As a result, all operations of extended duration have the committees’ tacit support.

That’s the understanding of the limitations MONs might impose on Presidents that Cheney brought to discussions of the Gloves Come Off MON.

Bob Woodward provides an extensive discussion of what George Tenet and Cofer Black requested in this MON in Bush at War.

At the heart of the proposal was a recommendation that the president give what Tenet labeled “exceptional authorities” to the CIA to destroy al Qaeda in Afghanistan and the rest of the world. He wanted a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation. The current process involved too much time, lawyering, reviews and debate. The CIA needed new, robust authority to operate without restraint. Tenet also wanted encouragement from the president to take risks.

Another key component, he said, was to “use exceptional authorities to detain al Qaeda operatives worldwide.” That meant the CIA could use foreign intelligence services or other paid assets. Tenet and his senior deputies would be authorized to approve “snatch” operations abroad, truly exceptional power.

Tenet had brought a draft of a presidential intelligence order, called a finding, that would give the CIA power to use the full range of covert instruments, including deadly force. For more than two decades, the CIA had simply modified previous presidential findings to obtain its formal authority for counterterrorism. His new proposal, technically called a Memorandum of Notification, was presented as a modification to the worldwide counterterrorism intelligence finding signed by Ronald Reagan in 1986. As if symbolically erasing the recent past, it superseded five such memoranda signed by President Clinton.

Woodward describes other things included in Tenet’s request:

  • Providing hundreds of millions to “heavily subsidize Arab liaison services,” effectively “buying” key services in Egypt, Jordan, and Algeria
  • Equipping Predator drones with Hellfire missiles for lethal missions to take out top al Qaeda figures Continue reading
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bmaz This may be old, but as one of Kiki's moms who have it going on you should know: Kiki is itinerant: http://t.co/3L1eBORRda
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emptywheel RT @LisaBloom: #Ferguson GJ day 2: prosecutors tell GJ they know this is different from other cases because they did not give them recommen…
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emptywheel Benghazi: A Poster Child for Covert Ops Blowback https://t.co/bHSWSYCTjy My take on why HPSCI report so moderate.
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emptywheel @vachonn Doesn't work for observant non-bacon eaters, tho. @Popehat
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emptywheel @Popehat Are you bacon friendly? Skip the brining, slap a pound on top of the turkey, and write the post.
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JimWhiteGNV Who knew Darren Wilson was related to Carly Fiorina? #DemonsAreEverywhere #Ferguson
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JimWhiteGNV RT @SeanMcElwee: Americans killed in Benghazi: 4 Americans killed by terrorism in 2012: 19 Americans killed by cops in 2012: 461 #Ferguson
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emptywheel @armandodkos Just some dorks on Twitter. McCulloch has already made it clear dorks on twitter aren't serious.
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bmaz Ferguson/Wilson Grand Jury Return Thoughts and Working Materials https://t.co/sL8MoPJyxh
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emptywheel @DanteAtkins Ask him why he blames GOP for too-small stimulus, when Dems like Claire McCaskill were pushing for smaller stimulus too.
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bmaz @JustADCohen What was amazing was WHO McCullogh attacked....only the ones that differed from the preferred Wilson narrative. Total BS.
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