As I noted yesterday, part of the effort to pass the USA Freedom Act involved what I call a “data handshake:” A deal whereby all four major telecoms would keep call detail records 2 years, without a mandate to do so.
At Foreign Policy, I have more details on this — with a focus on how this works with the Business Records law that authorizes the phone dragnet.
The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.
The government has repeatedly told courts that under Section 215, the NSA can only ask telecoms for business records they already hold. Yet Feinstein seems to have revealed, perhaps unintentionally, that under the new law the telecom companies would be willing to hold records at least an extra six months just so the government could presumably spy on their customers, if necessary. And in order to keep the records available under the law, the companies would claim they were keeping the records for business reasons. By doing this orally, no records could be obtained under discovery in a customer lawsuit or leaked by an NSA whistleblower like Edward Snowden. The telecoms could claim that they are not agents of the nation’s spies, even after they seem to have agreed to a handshake deal making them into just that.
Compare agreeing to this data handshake with what Verizon said in June.
At a Senate hearing in June, Verizon’s Associate General Counsel Michael Woods explained that Verizon keeps call detail records for just 12 to 18 months. “We don’t have data five years back,” Woods explained in response to a question from Collins. “All collection would be from our ordinary business records.”
In June, Woods made clear that Verizon objected to holding call detail records longer. His written testimony insisted that “national security is a fundamental government function that should not be outsourced to private companies.” He described that if a telecom company were asked to “retain data for the use of intelligence agencies,” it would be serving as “an agent” of the government.
Now, as I conclude in my piece, the telecoms that agreed to the data handshakes were probably calculating, correctly, that their customers would be better off if they held the records for 6 months longer than they needed to given their business needs than having the government hold them at all. I get the logic behind this deal.
But it is indefensible. The law, as written, cannot oblige Verizon to hold these records. The reason it can’t is because the law was never intended to set up an intrusive dragnet. Had it done so –and hopefully if the government tries to do so now — then it would have been publicly debated. And the program’s inefficacy would have been a much bigger issue.
The strong-arming of telecoms, presumably including Verizon, into this data handshake ought to refocus efforts to find a better solution to get the government the coverage it actually needs, but without inventing dragnets that have not shown to be useful.
I’m going to transcribe some comments Dianne Feinstein made Tuesday night about how proponents of USA Freedom Act got around a data mandate requiring telecoms to keep data longer than they otherwise would. The short version? Rather than a data mandate, USA Freedom Act would have relied on a data handshake.
I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms. Senator Chambliss and I wrote a letter to the four big telecoms, and we asked them if they would hold the data. The answer came back from two, yes. And the answer came back from two, no. Since that time, the situation has changed — not in writing — but by personal testament from two of the companies, that they will hold the data for at least two years for business reasons. Now here’s the problem. The mandate that was inherent in the 215 Act is gone. But the fact is that the telecoms have agreed to hold the data. The President himself has assured me of this.
I’ll write more on this, which is legally unbelievably fascinating. But for now, I just wanted to post it.
As I laid out in this timeline, sometime in fall 2009, the NSA submitted an end-to-end report describing the Internet dragnet. Then, weeks later, David Kris wrote Reggie Walton, admitting that the had been collecting data outside the categories approved by Colleen Kollar-Kotelly in 2004 — that is, admitting that the rosy picture NSA had painted in its end-to-end report was entirely false. Sometime shortly thereafter, DOJ decided not to submit its Internet dragnet reauthorization application, effectively shutting down the Internet dragnet on or around October 30, 2009 until John “Bates-Stamp” Bates reauthorized it sometime around July 2010.
Which is why I find the discussion of the PATRIOT reauthorization during precisely that time period so interesting.
On October 1 the Senate Judiciary Committee had its first open hearing on PATRIOT reauthorization. At that point, an effort to require Section 215 have particular ties to terrorism got shut down in an action we now know served to preserve the phone dragnet. The discussion around it created the interest for a classified briefing. On October 7, they got that briefing. Also on October 7, the Obama Administration gave Jeff Sessions a bunch of changes they wanted off of what the bill had been on October 1.
On October 8, the Senate Judiciary Committee had another open hearing on PATRIOT reauthorization. The committee adopted Sessions changes over DiFi’s already watered down version of what Pat Leahy had originally pushed on October 1 (this is what elicited Russ Feingold’s concerns about SJC acting as the Prosecutors Committee). The changes limited Section 215 protections for libraries, fixed the gag order problem with NSLs with a non-fix that is similar to one included in USA Freedom Act. Most significantly, they watered down what would have been new minimization procedures for the PRTT authority (which were ultimately stripped in any case), making clear minimization procedures should only be adopted in exceptional circumstances. As I guessed correctly at the time, this was probably done to protect the PRTT dragnet that was collecting vast amounts of Internet metadata (as well as, contrary to Jeff Sessons’ claims in the hearing, content).
They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.
By asserting it had the authority to impose minimization procedures on the Internet dragnet, the FISC tried, utterly unsuccessfully, to prevent the NSA from illegally wiretapping Americans. When the FISC again asserted its authority to impose minimization procedures, NSA just took its toys and went overseas, where it didn’t have that meanie rubber stamp FISC to contend with.
I raise this not only because it suggests DOJ was making legislative efforts to undercut the FISC just as they discovered a huge problem with their Internet dragnet. But also because, in my opinion, the USA Freedom Act makes a similar effort to withdraw any claim the court might make to be able to impose and review compliance with minimization procedures. I don’t think it’s an Internet dragnet this time — as I’ll write later, I think it’s either location (which is fairly banal) or more interesting flow analyses. But I think Congress — with the support of civil liberties NGOs, this time — is still trying to undercut the way that FISC has best been able to impose some controls on the government’s spying.
Ken Dilanian has a story about someone who looks a lot like Chris Inglis raising questions about the phone dragnet in 2009.
A now-retired NSA senior executive, who was a longtime code-breaker who rose to top management, had just learned in 2009 about the top secret program that was created shortly after the Sept. 11, 2001, attacks. He says he argued to then-NSA Director Keith Alexander that storing the calling records of nearly every American fundamentally changed the character of the agency, which is supposed to eavesdrop on foreigners, not Americans.
Alexander politely disagreed, the former official told The Associated Press.
The former official, who spoke only on condition of anonymity because he didn’t have permission to discuss a classified matter, said he knows of no evidence the program was used for anything other than hunting for terrorism plots in the U.S. But he said he and others made the case that the collection of American records in bulk crossed a line that had been sacrosanct.
He said he also warned of a scandal if it should be disclosed that the NSA was storing records of private calls by Americans – to psychiatrists, lovers and suicide hotlines, among other contacts.
While interesting, it’s the kind of story — and it is accompanied by enough obvious errors and general lack of awareness about the program — that it raises questions about the further backstory (as for the errors, the most obvious include badly misstating how many people access the data, misstating where Basaaly Moalin is from, and accepting the source’s claim it has only been used to hunt terrorist plots rather than informants).
How do you write an intelligent story about anything having to do with the dragnet in 2009 and not mention the other issues going on with the dragnet, the 9 month process during which the ultimate structure leftover from Stellar Wind was cleaned up?
Indeed, the buried lede of this story is that someone this senior in the NSA would just be discovering the program, 8 years after it started and 3 years after it got put under FISC review. That’s consistent with what we saw from dragnet data, mind you — one reason the program was so screwed up in 2009 was that NSA’s regular coders hadn’t been overseeing its integration, even while the program appears to have gotten integrated into ICREACH in 2008.
But especially given the evidence that tech people committed the worst known violation and had access to commit far more serious ones, this part of the story should be the news.
It also raises questions about two other things going on that year. It is true that DOJ delayed quite some time from when Dianne Feinstein and Kit Bond first asked for language to resume the reauthorization program. Then, once they did start the process, DiFi was up boasting about how this (and presumably the PRTT program) were the most important investigations going on. Whether the government was honest about what they told SSCI about the program, it’s fairly clear that’s where the legislative push to retain it came from.
Then there’s the question I already raised: the change in FBI’s interpretation of Basaaly Moalin’s donations to Al-Shabaab, which earlier in 2009 they viewed as an effort to fight back against (US-backed) Ethiopian invaders. That is, did Moalin get prosecuted solely so they could have a dragnet win to justify all the other things they’re doing with the data?
The Senate just voted down cloture on the USA Freedom Act, 58-42. Even while we disagreed on the bill, I extend sincere condolences to civil liberties allies who worked hard to pass this in good faith. I know you all have worked hard in good faith to pass something viable.
Several things about the vote were predictable (in fact, I predicted them in June). Just as one example, I noted to allies that if Jeff Flake — who had a great record on civil liberties while he was still in the House — did not support the effort, it would fail. Four Senators — cosponsors Mike Lee, Ted Cruz, and Dean Heller, plus Lisa Murkowski voted for cloture; Rand Paul did not. Bill Nelson voted against cloture as well (there are reports he is claiming it was a mistake, but given how closely this bill was whipped that would be … telling).
Equally predictable was the fear-mongering. GOP Senator after GOP Senator got up and insisted if the phone dragnet ended, ISIL would attack the country. None noted, of course, that the phone dragnet had never succeeded in preventing a terrorist attack. Pat Leahy made that point but it’s one opponents of the dragnet need to make in more concerted fashion.
Then there was a piece of news that neither side — supporter or opponent — seemed to want to mention. Dianne Feinstein revealed that at first 2 of 4 providers (presumably the fourth is T-Mobile though it could even be Microsoft, given that Skype is a more important phone carrier for international traffic) had refused to keep phone records, but that they had voluntarily agreed to do so for a full two years (this is at least a 6 month extension for Verizon, though may be significantly longer for cell calls).
The most dramatic part of the debate came after everyone left, when a frustrated Pat Leahy made the case for defending the Constitution. He recalled the anthrax letter addressed to him, on September 18, 2001, that killed a postal worker who processed it (
another letter killed a Tom Daschle aide see Meryl Nass’ correction). “13 years ago this week, a letter was sent to me, addressed to me. It was so deadly, with the antrax in it that one person who touched the envelope–addressed to me, that I was supposed to open–They died!” Leahy reminded that the FBI had still not caught all the culprits for the attack. (That he believes that was first reported here in 2008; I believe FBI has, in fact, caught none of the culprits.) That attack targeting him personally, Leahy noted, did not convince him he had to abrogate the Constitution. “This nation should not let our liberties to be set aside by passing fears.” Leahy said. “If we do not protect our Constitution we do not deserve to be in this body.”
Senators like Marco Rubio got up and screamed about terrorists. But unless I’m mistaken, Pat Leahy is the only one remaining in the Senate who was personally targeted by a terrorist.
Maybe we ought to highlight that point?
Updated w/additions from Leahy’s comments.
The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)
That line, from the FISCR opinion finding the Protect America Act constitutional, gets to the core problem with the FISA Court scheme. Even in 2009, when the line was first made public, it was pretty clear the government had made a false claim to the FISA Court of Review.
Now that we know that FBI had already been given authority to keep PAA-collected content in databases that they could search at what is now called the assessment stage of investigations – warrantless searches of the content of Americans against whom the FBI has no evidence of wrong-doing — the claim remains one of the signature moments where the government got approval for a program by being less than candid to the court (the government has been caught doing so in both Title III courts and at FISC, and continues to do so).
That’s also why I find Greg McNeal’s paper on Reforming the FISC, while very important, ultimately unconvincing.
McNeal’s paper is invaluable for the way he assesses the decision — in May 2006 — to authorize the collection of all phone records under Section 215. Not only does the paper largely agree with the Democratic appointees on PCLOB that the program is not authorized by the Section 215 statute, McNeal conducts his own assessment of the government’s application to use Section 215 for that purpose.
The application does not fare well.
Moreover, the government recognized that not all records would be relevant to an investigation, but justified relevance on what could best be described as usefulness or necessity to enable the government’s metadata analysis, stating:
The Application fully satisfies all requirements of title V of FISA. In particular, the Application seeks the production of tangible things “for” an international terrorism investigation. 50 U.S.C. § 1861(a)(1). In addition, the Application includes a statement of facts demonstrating that there are reasonable grounds to believe that the business records sought are “relevant” to an authorized investigation. Id. § 1861(b)(2). Although the call detail records of the [redacted] contain large volumes of metadata, the vast majority of which will not be terrorist-related, the scope of the business records request presents no infirmity under title V. All of the business records to be collected here are relevant to FBI investigations into [redacted] because the NSA can effectively conduct metadata analysis only if it has the data in bulk.49
The government went even further, arguing that if the FISC found that the records were not relevant, that the FISC should read relevance out of the statute by tailoring its analysis in a way that would balance the government’s request to collect metadata in bulk against the degree of intrusion into privacy interests. Disregarding the fact that the balancing of these interests was likely already engaged in by Congress when writing section 215, the government wrote:
In addition, even if the metadata from non-terrorist communications were deemed not relevant, nothing in title V of FISA demands that a request for the production of “any tangible things” under that provision collect only information that is strictly relevant to the international terrorism investigation at hand. Were the Court to require some tailoring to fit the information that will actually be terrorist-related, the business records request detailed in the Application would meet any proper test for reasonable tailoring. Any tailoring standard must be informed by a balancing of the government interest at stake against the degree of intrusion into any protected privacy interests. Here, the Government’s interest is the most compelling imaginable: the defense of the Nation in wartime from attacks that may take thousands of lives. On the other side of the balance, the intrusion is minimal. As the Supreme Court has held, there is no constitutionally protected interest in metadata, such as numbers dialed on a telephone.50
Thus, what the government asked the court to disregard the judgment of the Congress as to the limitations and privacy interests at stake in the collection of business records. Specifically, the government asked the FISC to disregard Congress’s imposition of a statutory requirement that business records be relevant, and in disregarding that statutory requirement rely on the fact that there was no constitutionally protected privacy interest in business records. The government’s argument flipped the statute on its head, as the purpose of enhancing protections under section 215 was to supplement the constitutional baseline protections for privacy that were deemed inadequate by Congress.
McNeal is no hippie. That he largely agrees and goes beyond PCLOB’s conclusion that this decision was not authorized by the statute is significant.
But as I said, I disagree with his remedy — and also with his assessment of the single source of this dysfunction.
McNeal’s remedy is laudable. He suggests all FISC decisions should be presumptively declassified and any significant FISC decision should get automatic appellate review, done by FISCR. That’s not dissimilar to a measure in Pat Leahy’s USA Freedom Act, which I’ve written about here. With my cautions about that scheme noted, I think McNeal’s remedy may have value.
The reason it won’t be enough stems from two things.
First, the government has proven it cannot be trusted with ex parte proceedings in the FISC. That may seem harsh, but the Yahoo challenge — which is the most complete view we’ve ever had of how the court works, even with a weak adversary — really damns the government’s conduct. In addition to the seemingly false claim to FISCR about whether the government held databases of incidentally collected data, over the course of the Yahoo challenge, the government,
In short, the materials withheld or misrepresented over the course of the Yahoo challenge may have made the difference in FISCR’s judgment that the program was legal (even ignoring all the things withheld from Yahoo, especially regarding the revised role of FBI in the process). (Note, in his paper, McNeal rightly argues Congress and the public could have had a clear idea of what Section 702 does; I’d limit that by noting that almost no one besides me imagined they were doing back door searches before that was revealed by the Snowden leaks).
One problem with McNeal’s suggestion, then, is that the government simply can’t be trusted to engage in ex parte proceedings before the FISC or FISCR. Every major program we’ve seen authorized by the court has featured significant misrepresentations about what the program really entailed. Every one! Until we eliminate that problem, the value of these courts will be limited.
But then there is the other problem, my own assessment of the source of the problem with FISC. McNeal thinks it is that Congress wants to pawn its authority off onto the FISC.
The underlying disease is that Congress wants things to operate the way that they do; Congress wants the FISC and has incentives to maintain the status quo.
Why does Congress want the FISC? Because it allows them to push accountability off to someone else. If members ofCongress are responsible for conducting oversight of secretoperations, their reputations are on the line if the operations gotoo far toward violating civil liberties, or not far enoughtoward protecting national security. However, with the FISC conducting operations, Congress has the ability to dodge accountability by claiming they have empowered a court to conduct oversight.
I don’t, in general, disagree with this sentiment in the least. The last thing Congress wants to do is make a decision that might later be tied to an intelligence failure, a terrorist attack, a botched operation. Heck, I’d add that the last thing most members of Congress serving on the Intelligence Committees would want to do is piss off the contractors whose donations provide one of the perks of the seat.
But the dysfunction of the FISC stems, in significant part, from something else.
In his paper on the phone dragnet (which partly incorporates the Internet dragnet), David Kris suggests the original decision to bring the dragnets under the FISC (in the paper he was limited by DOJ review about what he could say of the Internet dragnet, so it is not entirely clear whether he means the Colleen Kollar-Kotelly opinion that paved the way for the flawed Malcolm Howard one McNeal critiques, or the Howard one) was erroneous. Continue reading
There has been a lot of belated attention to the impact that Mark Udall’s loss yesterday will have on the Senate Intelligence Committee. I’ve been pointing to the possibility of a Udall loss and a Richard Burr Chairmanship since March. I warned you all of this when there was still time to do something about it!
Yesterday’s election will have huge impact on intelligence matters. It’s crystal clear, for example, that Burr has zero intention of exercising any oversight into the intelligence community, as we know he has been uninterested in their law-breaking in the past. I actually think Burr may be more interested in their competence than Feinstein has been, but that may be just a pipe-dream.
Burr might even be the very very rare Gang of Four member who doesn’t use the position to leak what the intelligence community wants to make public to the press. I say that because Burr was a key player in requiring the White House to provide the committees a list of sanctioned leaks, which I actually think was a badly needed reform (though I have no idea whether the White House has complied).
There’s also the matter of the 3 or 4 new Republicans that will gain seats on the Intelligence Committee (adding at least one for the majority, along with replacing Saxby Chambliss and Tom Coburn, both of whom retired). It’d be nice to see a libertarian among these — perhaps someone like Mike Lee, given that Utah has a lot of intelligence equities. But I highly doubt Mitch McConnell would put anyone with an interest in civil liberties on the Committee.
But there is one area where yesterday’s shellacking might harbor good news for civil liberties: Thad Cochran.
With Republicans in the majority, Barb Mikulski (D-NSA) will lose her Chairmanship of the Appropriations Committee; Cochran is expected to get that Chair. Mikulski has always been — even more than Dianne Feinstein — the impediment to any real civil liberties change in the Senate, because she is far more powerful. Importantly, she served as a guarantee that smart policies put through on appropriations bills — like Alan Grayson’s elimination of a requirement that NIST consult with the NSA on encryption standards, and the Massie-Lofgren amendment to defund back door searches — would not make it into any final bill.
Losing the majority, even losing Mikulski on Appropriations on all other matters, is a huge loss, don’t get me wrong.
But it does mean that Thad Cochran might, just maybe, allow good things to move through the Senate on appropriations. With Barb Mikulski there was no chance in hell of doing something on an appropriations bill. Without her, there’s at least a possibility. (Remember that Ted Stevens permitted a Ron Wyden amendment defunding TIA to go through appropriations in 2003, so such things are not unheard of.)
There’s no reason to believe that Cochran, in general, is any friendlier to civil liberties than Mikulski. But he’s not the NSA’s own personal senator. And that may be a tiny bright spot.
The NYT has a long story claiming to show that Obama is “lurching from crisis to crisis” but ultimately providing evidence to support this observation, which appears at the very end of the story.
Yet he remains deliberative, methodical and not swayed by outside criticism of his style.
It seems DC has decided it is a Big Story that Obama doesn’t show senseless panic, like the inept members of Congress do.
What the story also shows is that Obama — like all Presidents going back to Reagan — relies too much on his National Security Council and not enough on his agencies. There’s a hint of an argument that that is what leads to Obama’s apparent lack of strategy (which as I said earlier this week, may be an appearance or may be real, I’m not sure anyone knows).
And to support that, the story includes this incident (which is by far the most interesting part of the article aside from where it says Chuck Hagel doesn’t speak up often in larger meetings for fear it will leak to the press, as his explanation for not speaking up got leaked to the press).
Over the Columbus Day weekend, the White House chief of staff, Denis R. McDonough, traveled to the San Francisco home of Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, to negotiate personally over redactions in a Senate report on the C.I.A.’s detention and interrogation policies after the Sept. 11 terrorist attacks.
That Mr. McDonough would get involved in such an arcane matter puzzles some legislative aides on Capitol Hill, given the other demands on his time.
Some liberals have been deeply disappointed with Mr. Obama’s slowness in embracing the Senate report, and have questioned Mr. McDonough’s involvement in redacting it, noting his close ties to the C.I.A. director, John O. Brennan, with whom he served as a deputy national security adviser during the president’s first term. Mr. McDonough said he traveled to Mrs. Feinstein’s home because he views the role of Congress in foreign policy as sacrosanct.
“This is an important case study of the role of Congress in foreign policy,” he said, “and I want to get it right.”
Forgive me if you spat up your drink, reading about McDonough’s deep respect for Congress’ “sacrosanct” role in foreign policy. What a load of baloney!
But of course McDonough needed to provide an alternate explanation for the real one — the one that explains why McDonough’s investment in the torture report is no surprise.
President Obama’s White House has been heavily involved in the torture declassification process for years, since when National Security Advisor James Jones intervened to keep a short phrase secret making it clear torture was authorized by a Presidential finding, not by OLC memos. This is more of the same (and probably arises out of precisely the same instincts). That’s not in the least news, even if the NYT hasn’t acknowledged what is going on.
The headline for this story should be, “BREAKING White House intervening to protect torture.” Instead, the NYT has taken a No Drama Obama story and turned into a demand for MOAR PANIC.
I want to pull several details of the HuffPo’s last two pieces on the CIA torture report together (kudos to HuffPo for stealing Ali Watkins from McClatchy).
Tuesday’s story presents conflicting claims about whether the CIA impersonated SSCI staffers to access the part of the server dedicated to their work.
One side — explicitly relying on the CIA Inspector General’s own report — say the CIA impersonated staffers, and possibly worse.
According to sources familiar with the CIA inspector general report that details the alleged abuses by agency officials, CIA agents impersonated Senate staffers in order to gain access to Senate communications and drafts of the Intelligence Committee investigation. These sources requested anonymity because the details of the agency’s inspector general report remain classified.
“If people knew the details of what they actually did to hack into the Senate computers to go search for the torture document, jaws would drop. It’s straight out of a movie,” said one Senate source familiar with the document.
The quote from the other side issued a non-denial denial (though perhaps there was a more direct denial not quoted): CIA did not use Administrator access (which is not what the other source claimed).
A person familiar with the events surrounding the dispute between the CIA and Intelligence Committee said the suggestion that the agency posed as staff to access drafts of the study is untrue.
“CIA simply attempted to determine if its side of the firewall could have been accessed through the Google search tool. CIA did not use administrator access to examine [Intelligence Committee] work product,” the source said.
Now consider today’s story, which describes the inconclusive result of the Senate Sergeant-at-Arms report. Here, the dispute is portrayed as a disagreement over whether the CIA has the original access logs, or only copies of them.
Computer records may have provided evidence on how the CIA document made its way into the Intelligence Committee’s hands. Those records, Senate sources said, were erased by the CIA.
The claim is technically true. The computer audit logs that recorded activity on the CIA computers used for the committee’s report were overridden from the machines’ local drives at regular intervals throughout the five-year study, HuffPost has learned. The records, however, continued to be stored elsewhere, and were provided to the Sergeant-at-Arms office for its inquiry. The CIA said that the Senate office received the computer audit records earlier this year.
“CIA cooperated fully with the Senate Sergeant-at-Arms review and provided all the relevant information that the [Sergeant-at-Arms] requested,” said CIA spokesman Dean Boyd. “In fact, audit data was specifically provided to the [Sergeant-at-Arms] in July 2014. Furthermore, CIA continues to maintain copies of this audit data to this day. Claims alleging otherwise are patently false.”
A source familiar with the Senate inquiry has since said that the CIA submitted copies of records to the Sergeant-at-Arms, rather than the records themselves, which the investigators considered unreliable.
The Sergeant-at-Arms “can’t verify any of what CIA is saying,” said the source, who was briefed on the investigation.
In other words, the Sergeant-at-Arms got records that they can’t actually use to verify what happened on the servers. They would have gotten those logs after this issue had already blown up.
I’m reminded of the White House emails, where the content of the emails appears to have been doctored right as Patrick Fitzgerald was subpoenaing specific accounts.
If the CIA had doctored the access logs they stored, they would have been able to eliminate any trace of CIA using SSCI credentials to access the server.
So where does the claim that CIA impersonated the SSCI staffers come from? And what as the inaccurate information based on which the CIA IG referred Senate staffers for investigation?
The CIA had asked the Department of Justice to pursue criminal charges against the Senate staff for removing the document, which the Justice Department declined in June to investigate. The CIA’s inspector general has since determined that the criminal referral was based on “inaccurate information.” The inspector general also publicly accused CIA staff of misleading the offices’ investigators during its inquiry.
That doesn’t necessarily mean that the Inspector General was working with dodgy access logs. CIA has any number of ways to lie — it’s what we pay them to do. By 2010, after all, the CIA had already altered or destroyed all this evidence of their torture:
Since there are so many incidences of destroyed or disappearing torture evidence, I thought it time to start cataloging them, to keep them all straight.
- Before May 2003: 15 of 92 torture tapes erased or damaged
- Early 2003: Gitmo commander Mike Dunlavey’s paper trail documenting the torture discussions surrounding Mohammed al-Qahtani “lost”
- Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
- June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
- November 8-9, 2005: 92 torture tapes destroyed
- July 2007 (probably): 10 documents from OLC SCIF disappear
- December 19, 2007: Fire breaks out in Cheney’s office
(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
Again, we don’t know that the CIA altered the access logs.
But if they didn’t, it would almost constitute an exception to their rule of destroying evidence.
Update: As a reminder, here were the conclusions in the CIA IG Report summary that was publicly released.
Agency Access to Files on the SSCI RDINet: Five Agency employees, two attorneys and three information technology (IT) staff members, improperly accessed or caused access to the SSCI Majority staff shared drives on the RDINet.
Agency Crimes Report on Alleged Misconduct by SSCI Staff: The Agency filed a crimes report with the DOJ, as required by Executive Order 12333 and the 1995 Crimes Reporting Memorandum between the DOJ and the Intelligence Community, reporting that SSCI staff members may have improperly accessed Agency information on the RDINet. However, the factual basis for the referral was not supported, as the author of the referral had been provided inaccurate information on which the letter was based. After review, the DOJ declined to open a criminal investigation of the matter alleged in the crimes report.
Office of Security Review of SSCI Staff Activity: Subsequent to directive by the D/CIA to halt the Agency review of SSCI staff access to the RDINet, and unaware of the D/CIA’s direction, the Office of Security conducted a limited investigation of SSCI activities on the RDINet. That effort included a keyword search of all and a review of some of the emails of SSCI Majority staff members on the RDINet system.
Lack of Candor: The three IT staff members demonstrated a lack of candor about their activities during interviews by the OIG.
In James Risen’s new book, he provides new details on what happened to the NSA whistleblowers — Bill Binney, Kurt Wiebe, Ed Loomis, Thomas Drake — who tried to stop President Bush’s illegal wiretap program, adding to what Jane Mayer wrote in 2011. He pays particular attention to the effort Diane Roark made, as a staffer overseeing NSA on the House Intelligence Committee, to alert people that the Agency was conducting illegal spying on Americans.
As part of that, Risen describes an effort Roark made to inform another Congressman of the program, one who had not been briefed: Richard Burr.
Despite the warning from (HPSCI’s Republican Staff Director Tim) Sample not to talk with anyone else on the committee about the program, she privately warned Chris Barton, the committee’s new general counsel, that “there was an NSA program of questionable legality and that it was going to blow up in their faces.” In early 2002, Roark also quietly arranged a meeting between Binney, Loomis, and Wiebe and Richard Burr, a North Carolina Republican on the House Intelligence Committee. Binney told Burr everything they had learned about the NSA wiretapping program, but Burr hardly said a word in response. Burr never followed up on the matter with Roark, and there is no evidence he ever took any action to investigate the NSA program.
I’m not actually surprised that Burr learned the Intelligence Community was engaging in illegal behavior and did nothing. From what we’ve seen in his response to torture, he has served entirely to help CIA cover up the program and protect the torturers. Indeed, in his treatment of John Brennan’s confirmation, he made efforts to ensure Brennan would have to protect the torturers too.
So it’s no surprise that Burr heard details of an illegal program and ignored them.
Still, it’s worth highlighting this detail because, if Democrats do lose the Senate as they are likely to do in November, Richard Burr will most likely become Senate Intelligence Committee Chair. While Dianne Feinstein may be a badly flawed Chair overseeing the IC, Burr will be a nightmare, unloosing them to do whatever they’re ordered.
That’s the kind of career advancement that comes to a guy who remains silent about wrongdoing.