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One of Just Four Overseers on Drone Targeting Believes First Amendment Protected Activities Merit Execution

While the Gang of Four do not have access to the CIA’s kill list (and therefore did not know whether Samir Khan was on it before his death), they are the only people outside the Executive Branch who had, before today, seen the government’s rationale for killing Anwar al-Awlaki (and DOJ still has 8 memos on targeted killing to turn over). Thus, up until today, the Gang of Four has been the only outside review on that killing, 16 months after Awlaki’s death.

That’s all very nice because last March, in the context of the Administration’s refusal to turn over these memos, Dianne Feinstein offered this guarantee that the targeted killing program — and all other counterterrorism programs — are constitutional.

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

That’s it. One of the only assurances that Awlaki’s death, and everyone else’s, is legal.

Which is all the more troubling given that DiFi’s judgement of what makes someone a legitimate target is so outrageous it made even John Brennan pause.

DiFi presented a series of terrorist attacks and asked Brennan to validate that Awlaki was, in fact, involved. It went something like this:

DiFi: Did he have connection to Umar Farouk Abdulmutallab?

Brennan: Yes.

DiFI: Can you tell us what that was?

Brennan: I prefer not to.

DiFI: Did he have a connection to Fort Hood?

[long pause and serious squirming]

Brennan: As a member in AQAP he had a role in inciting a number of individuals. There were a number of occasions where individuals, including Awlaki, has been in touch with Nidal Hasan.

DiFi: Did Faisal Shahzad tell interrogators he was inspired by Awlaki.

Brennan: Yes

DiFI: Last October, was he involved [not sure she used that word, and she means October 2010] in the failed attempt to bring down cargo aircraft?

Brennan: Awlaki was involved in overseeing a number of attacks–there was a relationship there.

Now, it is rather telling that Brennan didn’t want to address Abdulmutallab; I think it possible that there are problems with Abdulmutallab’s confession, as I lay out here. That said, there is also NSA information (leaked by Pete Hoekstra and made fairly obvious by the Webster report) and, probably, information from people infiltrated into AQAP, meaning Brennan needed to protect sources and methods.

And the toner cartridge plot is pretty weak, too, as Jabir al-Fayfi reportedly testified that others from AQAP were really in charge of the operation.

But for DiFi to suggest that Awlaki could be killed because of his role in the Nidal Hasan attack is outright irresponsible. After all, FBI read the correspondence between Hasan and Awlaki in real time. And yet having read it all — and having read whatever else email Awlaki received between June 2009 and December 24, 2009 when the US first tried to kill Awlaki — they still didn’t consider Awlaki to be operational (though one office following him believed he aspired to be).

As of January 7 and June 16, 2009, the FBI knew Anwar al-Aulaqi was an anti-American, radical Islamic cleric and the subject of a Tier <redacted> FBI counterterrorism investigation. San Diego believed [<redacted> that Aulaqi was [developing ambitions beyond radicalization] <redacted>. WFO viewed him at that time as merely inspirational. The FBI’s full understanding of Aulaqi’s operational ambitions developed only after the attempted bombing of Northwest Airlines Flight 253 on Christmas Day 2009.

Indeed, William Webster spent years trying to figure out whether FBI should have known Hasan was planning an attack from the emails, which is a much closer call. But even after reading everything that might have transpired between the two, no one believes that Awlaki had anything more than an inspirational role.

And yet one of the only four people outside the Administration who has attested to the legality of the strike on Awlaki thinks this should be part of the case to justify a due process free execution.

It got worse from there. She went on to insist that [rough transcript] ” Awlaki was not, by far, an American citizen of whom America would be proud.”

But like writing a bunch of First Amendment protected hateful propaganda, being “an American of whom America would not be proud” is not reason to be executed.

Dianne Feinstein, however, thinks it is.

 

The Administration’s Drafty Secrecy Claims

As I’ve noted a couple of times, both Jason Leopold and Scott Shane FOIAed the white paper someone strategically leaked to Mike Isikoff this week.

Leopold requested the white paper in August, shortly after Pat Leahy discussed it in a hearing. Just weeks later, DOJ granted him expedited processing. But then his request dropped off the face of the earth — I guess the Administration treated this “expedited” request with the same temporal measure as the Administration treats “imminence.”

Scott Shane requested the white paper in December. In January DOJ rejected his request, citing deliberative process (basically claiming the white paper was a draft).

The disparate treatment of the two requests — and the leaking of it to Isikoff after two different people had been denied it already — is troubling enough.

But I think there’s another problem with the claim they made to Shane, that it was a draft.

The letter that Ron Wyden and 10 other Senators sent to President Obama the other day suggests that the reason they’re being given for not receiving the OLC memos is because they are drafts.

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens. We are not asking for any pre-decisional legal advice and do not believe that providing this information would violate and Constitutional privilege. However, if there is any concern that providing this information to Congress might implicate some sort of privilege, we would encourage you to simply waive whatever privilege might apply, if you would like to make it clear that you are not setting a precedent that applies to other categories of documents.

At one level, this language suggests a consistency from the Administration. Every single document they have on drone strikes, it would seem, is a draft.

Except that the Senators’ helpful suggestion — that if these so-called drafts really are drafts, then Obama could just waive the privilege this time around without implicating other drafts it wants to keep secret — suggests (I’m going to see if I can confirm it) that what the Committees have (remember, 9 of the 11 Senators are on either the Intelligence or Judiciary Committee, and so have officially received the white paper) was not considered a draft when it was given to them. If they already received a draft, after all, it would not be novel for them to get more drafts.

It’s just that when a reporter who has an active FOIA on precisely this kind of document asks for it, it suddenly reverts to draft status, until such time as someone finds it convenient for Mike Isikoff to have it.

Ah well, John Brennan has made it clear the terrorists will win if the Administration doesn’t presumptively turn over documents under FOIA. So I’m sure the Administration will sort this all out in “expedited” fashion.

Update: Thanks to Charlie Savage for linking to the letter off of which Scott Shane FOIAed the document. It reads:

On June 22, 2012, the Department provided us with a copy of a Department of Justice White Paper titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is A Senior Operational Leader of Al-Qa’ida or An Associated Force.” That document, which is marked as “Draft November 8, 2011,” sets forth the legal framework for considering the circumstances in which a particular, identifiable United States Citizen may be targeted. In transmitting that document to us, the Department acknowledged that this white paper is not classified, but took the position that it is not intended for public dissemination.

So DOJ did represent to HJC, at least, that it was a draft.

Two more interesting details, though. The memo was finalized 5 days after the date — November 3, 2011 — when DOJ’s Office of Information Policy arbitrarily enacted as the end date for their FOIA.

And the memo was handed to HJC, at least, the day after DOJ responded to the NYT and ACLU FOIA.

Man, according to John Brennan’s own rules, the terrorists are winning.

Dianne Feinstein’s Limited Hang-Out

Shorter Dianne Feinstein: “Well, the magical release of that white paper sure eliminates any need to release the Office of Legal Council memos that depict far worse legal theories, even to the grunt members of my committee who have are legally entitled to read it.”

I have been calling for the public release of the administration’s legal analysis on the use of lethal force—particularly against U.S. citizens—for more than a year. That analysis is now public and the American people can review and judge the legality of these operations. The administration has also described its legal analysis in speeches by the Attorney General and several senior officials during the past two years.

The white paper itself was provided to the Senate Intelligence and Judiciary Committees in June 2012 as a confidential document. The white paper (along with other documents and briefings) has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force. That oversight is ongoing, and the committee continues to seek the actual legal opinions by the Department of Justice that provide details not outlined in this particular white paper.

While the analysis in the white paper is not specific to any one individual, there has been significant question over the death of a U.S. citizen and operational leader of al-Qa’ida in the Arabian Peninsula named Anwar al-Aulaqi. As President Obama said at the time of his death, Aulaqi was the external operations leader for AQAP. He directed the failed attempt to blow up an airplane on Christmas Day in 2009 and was responsible for additional attempts to blow up U.S. cargo planes in 2010. He was actively plotting and recruiting others to kill Americans until the time of his death in Yemen.

The analysis is completely disingenuous for a number of reasons. As I have shown, DiFi utterly rolled John Cornyn when he tried to get the legal analysis released last year. She has done — and appears to be doing — far more to obstruct the release of the actual legal analysis than to facilitate it. And as at least 12 Senators strongly suggest, the white paper probably doesn’t reflect the memos (note that DiFi, like Wyden, uses the plural) — or at least one memo — that claims the authority to kill Americans solely on the President’s Article II power. At best, the intelligence (not evidence) to support the claims she advances about Anwar al-Awlaki is not a slamdunk; perhaps the  CIA is lying to her again, perhaps DiFi is lying herself to prevent Americans from assessing how badly she is fulfilling her role as a member of the Gang of Four who has presumably read the Administration’s legal justification and not objected to the President killing another American without due process.

Perhaps unsurprisingly, DiFi’s statement accords nicely with what Jay Carney said at the White House.

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Rather than Lying to Congress, CIA Now Blows It Off

Five months into Obama’s first term, then-CIA Director Leon Panetta caused a scandal by telling Congress about Blackwater-staffed assassination squads deployed under the Bush Administration; we would ultimately learn the program was run by a still-active mafia hitman.

Partly in response and partly because of the CIA’s lies to Congress under the Bush Administration, the Intelligence Committees began to tie funding to full briefing of the Committees, rather than just Gang of Eight (which were really Gang of Four) briefings Bush used to avoid oversight. The White House responded by issuing a veto threat if Congress violated the “fundamental compact” of letting CIA operate with almost no oversight. In response, after adding the shoot-down of a missionary plane to the scope, then House Intelligence Chair Silvestre Reyes got Pete Hoekstra to support an investigation into all the times CIA lied to Congress, which Reyes announced in July 2009. By October 2009, the House Intelligence Committee released its preliminary conclusion that CIA had lied to Congress on at least five occasions. In summer 2010, Nancy Pelosi got pissed. In October 2010, Obama finally signed Intelligence Authorization purportedly agreeing to new oversight. In November 2010, Reyes released the final results of the HPSCI inquiry, which showed that “in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies.” However, he said, most of the problems were fixed with that year’s Authorization. In the next Congress, Reyes would be replaced as Ranking Member at HPSCI by Dutch Ruppersberger, a servant to the NSA.

From June 2009 until October 2010, a Democratic Congress and the Obama Administration were engaged in a surprisingly contentious argument over whether the Administration would permit Congress to engage in adequate oversight of the Intelligence Community. In October 2010, the Administration purportedly agreed to abide by the clear terms of the National Security Act, which requires briefing of all members of the Intelligence Committees on covert programs.

With that in mind, consider the timeline suggested by Senate Intelligence Committee member Ron Wyden’s letter to John Brennan (see also this post).

December 2010: Wyden and Russ Feingold ask Eric Holder about “the interpretation of a particular statute” (probably having to do with online privacy)

Before January 2011: Wyden asks about targeted killing authority

April 2011: Wyden calls Eric Holder with questions about targeted killing authority

May 2011: Intelligence Community provides some response to Wyden, without answering basic questions

Before January 2012: Wyden asks for “the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities”

Early 2012: Wyden repeats request for response to letter about a particular statute (probably online privacy)

February 2012: Wyden renews his request for answers on targeted killing

In October 2010, the Obama Administration agreed to let Congress oversee the Intelligence Community’s activities.

Almost immediately thereafter, the Administration started stonewalling Wyden, a member of one of those Committees with supposedly renewed oversight authority, on at least three issues (though two–the lethal authority and the targeted killing–are closely related). (As I’ll discuss in a follow-up post, they also blew off Wyden’s request to revoke an OLC opinion that probably guts Americans’ privacy.)

And remarkably, one of the topics on which the IC is stonewalling Wyden–where the IC has engaged in lethal counterterrorism authorities–may well be precisely the issue that set off this process back in June 2009, the use not just of drones to kill alleged terrorists, but also assassination squads.

Even as Wyden made this timeline clear, he also revealed not only that the CIA lied to all the outside entities overseeing its torture program, but continues to lie to the American people about that program.

As Obama’s top counterterrorism advisor and an at least tangential participant in the earlier decisions on the “lethal counterterrorism authorities,” John Brennan has presumably been instrumental in the continued stonewalling of Congress. In a few weeks, he hopes to be approved to lead the CIA.

Senate Intelligence Torture Report: CIA Lied to the White House and the Public

I’m going to have a few more posts on Ron Wyden’s letter to John Brennan in advance of Brennan’s confirmation hearing.

In light of the Zero Dark Thirty debate and Dianne Feinstein’s spat with Michael Morell, I find this passage rather interesting.

I am particularly interested in getting your reaction to the report’s revelation that the CIA repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department, and Congress, and your view on what steps should be taken to correct inaccurate statements that were made to the public.

Frankly, it shouldn’t be a “revelation” that CIA lied to the Justice Department and Congress, at least. As I was able to show from publicly released documents, CIA was running an op on Congress. And it presented misleading documents to DOJ, both in terms of details about the techniques CIA would use as well as the crimes committed under the torture program (though I think both Congress and especially DOJ allowed themselves to be lied to at various points).

Nevertheless, it is apparently a significant conclusion of the torture program that CIA was lying to every potential avenue of oversight over their program.

Frankly, any approach to Brennan’s confirmation hearings that doesn’t also demand public release of the torture report would be yet more dereliction of Congress’ oversight role (either in his role in the White House or his prospective role at CIA, John Brennan would seem to have a significant role in Classification Authority for the torture program, so it should be a fair demand). Sadly, we probably won’t get it.

But even as a slew of journalists and film critics debate whether ZD30 is a CIA effort to pitch their torture program in the best light or not, we have yet more confirmation that CIA lied … to everyone (except maybe Cheney and Addington?).

Even as Wyden asks Brennan what steps he’ll take to make sure CIA doesn’t lie to every entity exercising oversight over it, Zero Dark 30 continues to pack theaters and convince squishy liberals torture worked.

It’s Hard to Summarize Opinions Pertaining to Two Purportedly Unrelated Laws

Steven Aftergood relays the explanation of a senior intelligence official as to why the intelligence community can’t release even a teensy little bit of the FISA Court’s classified opinions.

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Aftergood’s source goes on to explain that they can’t just summarize the Court’s decisions, because … well, I don’t really understand this objection, but I suspect it has to do with some disagreement between the FISC and DOJ about the opinions that currently exist.

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

Aftergood holds out hope that a letter from Dianne Feinstein will provide sufficient independent direction to convince the Court to write their own summary.

Now, I’m interested in this for two reasons. First, consider what it means that the Administration and their complacent-overseer DiFi refused to let Jeff Merkley’s amendment–which would have called for summaries in some cases–pass. For starters, it would have shortened the time frame (two years have already passed since Lisa Monaco assured Senators she’d declassify opinions if only they confirmed her) it’d take to ask the Courts for a summary and get it. Additionally, it would have required the government admit if they could not, would not, declassify any teensy bit of the opinions on this secret law. That is, they’d have to finally admit there is secret law, which they’re denying right now.

I’m officially predicting that all this will be wrapped up a few short months after after the PATRIOT Act gets extended in 2015, forestalling the moment yet again when we confirm that the government is conducting massive surveillance on innocent Americans.

But then there’s the claim that they cannot summarize this themselves (suggesting, as I said, that there was no way DOJ could write a summary that the FISC would buy off on).

Frankly, I don’t buy that. Even John Yoo’s November 2, 2001 opinion authorizing the illegal wiretap program–a 21 page document redacted down to 183 words–communicates the main gist of the opinion:

FISA only provides a safe harbor for electronic surveillance and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

FISA purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence.

[snip]

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.

[snip\

Thus, unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

…we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence to defend the nation from direct attacks.

[snip]

…intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

[snip]

…no governmental interest is more compelling than the security of the Nation.” Haig v. Agee. 453 US 280. 307 (1981)

Of course, in this case, the government is hiding the current interpretation of law. So rather than displaying the ugly shreds of our Constitution as it existed when Dick Cheney roamed the halls (though some of these opinions were written under the Bush Administration), the government is faced with revealing the ugly shreds of our Constitution as it exists. And 183 words, even in an opinion written by FISC, is probably sufficient to get some complacent people rather worried.

Then there’s the matter I noted the other day. In Merkley’s speech supporting his amendment, he focused on how Section 215 plays–apparently in conjunction with FAA (that’s why the government doesn’t want FAA debated at the same time as Section 215; because we might get “confused”)–particularly the passage that allows the government to get business records relevant to an investigation.

Let me show an example of a passage. Here is a passage about what information can be collected: “ ….. reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),” and so on.

Let me stress these words: “relevant to an authorized investigation.”

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what “relevant to an authorized investigation” means or what “tangible things” means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

As I noted, Merkley professes not to know whether the “relevant to” provision of Section 215 has been used to gut probable cause in a way far more thorough than even John Yoo accomplished. But most of the co-sponsors of his Amendment do know.

And while I still think you’d be able to summarize even that, if the thing they’re trying to hide is that Section 215 has been grafted onto FAA so as to permit the government to access any tangible thing from anyone for whatever shoddy reason the government invents, I do get why it’d be hard to summarize that and still hide the fact that that’s what is now going on.

I guess they think it’d be confusing for us if their claims that there isn’t a massive program of government surveillance were proven to be utterly false.

Blabby Brennan to Replace Publicity Petraeus at CIA?

“He is a horrendously political animal, and there will be a tendency to politicize information to put the best spin for the administration on it.”

–An anonymous CIA officer, speaking of John Brennan, with whom he worked at CIA during the Bush Administration

As predicted, John Brennan’s past support for torture has generated only limited concern from John McCain and Dianne Feinstein, but no real threat that it will hold up his confirmation. No one, as far as I know, seems to care that Brennan was involved in Dick Cheney’s illegal wiretap program, nor that he decided to give NCTC access to the federal data of completely innocent Americans, nor his “intimate familiarity” with the genesis of NYPD’s abusive domestic spying program. And while there has been much discussion of his role in drone strikes–much of it credulously insisting Brennan wants to put order to drone strikes with an effort stalled after Mitt lost–even drone skeptics like Ron Wyden have not yet raised it as a confirmation issue.

John Cornyn’s warning that Brennan won’t be approved until the leak investigations finish is much more interesting, however.

“John Brennan has not been absolved of responsibility for the slew of high-level security leaks that have characterized this White House,” Sen. John Cornyn (R-Texas) told POLITICO in a statement Monday. “This investigation needs to be resolved before his nomination can move forward.”

An aide to Sen. John McCain (R-Ariz.), speaking on condition of anonymity, said: “The questions about national security leaks by this administration have not yet been answered, and that will obviously be an issue as the Senate considers his nomination.”

Sure, to some degree Cornyn’s professed concern just reflects Cornyn being not only a partisan asshole, but a hypocrite about leaks.

But there seems good reason to inquire into what John Brennan’s sieve-like qualities will have on national security.

Consider his role in the exposure of the sources and methods used to set up a sting entrapping AQAP in an UndieBomb plot and with it sustaining the claim that AQAP wants to–and has the ability to–strike in the US. After the AP revealed there had been a plot (having held off at the request of the Administration), Brennan called his predecessors to spin the plot and in doing so made it clear that it was a sting, thereby exposing the British passport holder who set up the sting as an infiltrator.

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.

A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the ClintonWhite House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”

A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC’s Nightline that there was a Western spy or double-agent in on the plot: “The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn’t going to let it happen.”

The White House made it clear they would have revealed the plot anyway. Indeed, they did so in an analogous situation two years earlier. And our Saudi and Yemeni partners tend to boast about such things anyway. Much of the outrage over this so-called leak served only to beat up on the AP that had exposed the aforementioned abusive NYPD program.

Nevertheless, revelations about how Brennan briefs his predecessors who then run to their respective networks to officially leak this information show that he is an enthusiastic participant in the asymmetric spread of information in DC.

But hey. We knew that.

Nevertheless, the asymmetry is key. As I’ve noted, Brennan has an interesting closeness to half of the Administration’s whistleblower prosecutions. Yet one of those prosecuted whistleblowers–John Kiriakou, whose book someone who looks exactly like Brennan helped to get publishedsuggested today that Brennan is “the most prolific leaker in this administration.” A former senior Administration official seems to agree.

“It’s not on people’s radar, but this could be an issue,” said the former administration official, who asked not to be named discussing a potential downside of Brennan’s nomination. “He’s a guy who comes across as a strong, silent type who never speaks, [but] he actually does a lot of talking both internally with the president and externally with select, influential reporters. … I’m not saying the guy seeks it, but [other White House officials] view him as the most credible internal mouthpiece on national security matters.”

Which brings me back to this point. It’s not just that Brennan exposes sources and methods while seemingly supporting the unprecedented prosecution of whistleblowers who do the same. But it’s also that he does so for political gain. This is not–contra Brennan’s many boosters–transparency. It’s about enforcing an official version of events that often contradicts markedly from the truth.

Mind you, it is not at all unprecedented to have a skilled leaker madly spinning Administration policies rather than leveling with the American people at CIA. That doesn’t make it good for national security, but it happens a lot.

All that said, one of yesterday’s jokes is that Brennan–a man with ties to torture and illegal wiretapping–is replacing a guy purportedly ousted for a consensual affair. There are reasons why such affairs on the part of the Director of CIA raise more concerns in the nuclear era than they might have in the past. And that nuclear tie may be the related complications cited to explain why Petraeus had to resign.

Or maybe not. In Rajiv Chandrasekaran’s recent report on Petraeus’ habit of giving the pundits who advanced his career Top Secret clearance and access to materials that might be used to oppose Administration policies, he suggested this practice was receiving new scrutiny at DOD, the kind of scrutiny that might necessitate retirement.

John Cornyn is largely being an asshole in raising Brennan’s blabby mouth in respect to his nomination. But in doing so, he may just expose the deep hypocrisy underlying this Administration’s asymmetric leaks. That may be the price Cornyn demands to rubberstamp Brennan’s CIA appointment.

The Dianne Feinstein-Jose Rodriguez Grudge Match

It cannot be sheer coincidence that Dianne Feinstein released two letters to acting CIA Director Michael Morell just hours before WaPo published yet another fact-free defense of torture from Jose Rodriguez.

In addition to demanding proof for assertions Morell made–after DiFi sent her first letter–in a letter to CIA employees about Zero Dark Thirty…

In your December 21, 2012, statement to CIA employees regarding the film, Zero Dark Thirty, you state that “the film creates the strong impression that enhanced interrogation techniques” were “the key to finding Bin Ladin” and that this impression “is false.” However, you went on to refer to multiple streams of intelligence that led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad and stated that “Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”

DiFi also noted (in her first letter) that the false assertions in the film tracked public claims made by Michael Hayden and Rodriguez.

As you know, the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound. While this information is incorrect, it is consistent with public statements made by former Director of the CIA Counterterrorism Center, Jose Rodriguez, and former CIA Director Michael Hayden.

DiFi sent her first letter December 19. Morell made his incorrect claims two days later. Then DiFi demanded he back his claims on Monday.

Then here we are, on Thursday, with Rodriguez both denying the brutal aspects of the torture depicted in the movie resemble what the CIA did, while claiming (as DiFi predicted) that torture was central to finding Osama bin Laden.

I guess this is why the name of Jane Harman–who may have been terrible on a number of points but pushed back on the Bush Administration’s torture regime–got floated in the last few days as CIA Director, instead of Morell, who had previously been a lock?

In addition to preventing Morell from officially directing the CIA, DiFi does have another way to respond to this insubordination: to release her long report showing that torture not only didn’t work, but did resemble the brutal scenes in the movie.

Mind you, she’s going to face an increasingly fierce battle over classification. Does CIA retain primary classification authority for the program–in which case they’ll fight her? Or does Obama–and will the CIA’s godfather, John Brennan, allow the report to be released?

In any case, this seems a clear moment when DiFi’s authority (indeed, when Congress’ authority) on an issue on which she has been productive, is being challenged head on.

We shall see whether the Congressional overseer or the torturer wins this battle.

Why Not Have a Hearing on Civilian Drone Casualties?

Yesterday, I suggested that Mike Rogers and Dutch Ruppersberger’s certainty that public accounts of drone casualties are overstated may say more about our failed intelligence oversight than it does about the number of civilians who have died in our drone strikes.

Later yesterday, Steven Aftergood posted a must read reflection on how our intelligence oversight has backed off public accountability. I’ll have more to say about Aftergood’s post, but for the moment I wanted to look at a measure of public accountability he uses: the number of public oversight hearings, particularly those with outside experts.

Over the past decade, however, the Committee’s priorities appear to have changed, to the detriment of public accountability.  In fact, despite the Committee’s assurance in its annual reports, public disclosure even of the Committee’s own oversight activities has decreased.

In 2012, the Committee held only one public hearing, despite the prevalence of intelligence-related public controversies.  That is the smallest number of public hearings the Committee has held in at least 25 years and possibly ever.  A non-governmental witness has not been invited to testify at an open Committee hearing since 2007.

Breaking! Under Dianne Feinstein’s leadership, the Senate Intelligence Committee has had its fewest public hearings in at least 25 years!

Aftergood’s point, though, suggests one remedy for the problem with Mike Rogers’ boasting (or more lucrative assurances from DiFi that her oversight is all we need on drone strikes).

Why not have a public hearing at which the major contributors to the discussion of drone casualties testify in the same place?

The Intelligence Committees could invite both The Bureau for Investigative Journalism and the AP to explain how they conducted independent assessments of civilian casualties and what those assessments showed. They could invite Peter Bergen to explain his dubious numbers publicly (at one point, after all, Bergen actually knew as much about Osama bin Laden as the people hunting him in secret).  They could invite Pepperdine professor Gregory Neal–who has a paper saying that when the government uses its collateral damage estimation process, it does a remarkably good job at keeping collateral damage low, but admits that “due to the realities of combat operations, the process cannot always be followed.” Hell, they could even invite John Brennan to lie publicly about civilian casualties, as he has done in the past. Maybe, too, Brennan can explain how all militant age men are treated and counted, by default, as militants.

The point is there is a partial remedy to the grave problems with the cognitive challenges overseers like Mike Rogers and Dianne Feinstein face. One of those is to publicly accept the testimony of those who have different investments than the intelligence community.

Right now, continuing to rest the drone program’s legitimacy on repeated public calls to “trust me” actually undermines its legitimacy.

Sadly, resting our national security policy on repeated “trust mes” appears to be what Rogers and Feinstein like.

Ron Wyden: Liar, Liar, Alexander Pants on Fire

Ron Wyden, Dianne Feinstein, and a few other Senators are conducting what constitutes “a debate” on the FISA Amendments Act extension.

The highlight of the debate, thus far, came when DiFi promised to wave a classified letter answering some of Ron Wyden’s questions around in front of the TV. Mind you, she has not yet fulfilled that promise. But she made the promise, so I am glued to the screen waiting for her to embody the ridiculous nature of this so-called debate by waving her letter in lieu of telling us what it actually says.

Aside from that excitement, however, the high point of the debate has come from Ron Wyden, repeatedly suggesting NSA head General Keith Alexander is a liar.

At issue was a speech Alexander made in July at the DefCon hackers conference. He made two claims that Wyden and Mark Udall questioned in an October letter.

Specifically, you said:

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrayed privacy protections for Americans’ communications as being stronger than they actually are. We urge you to correct this statement, so that Congress and the public can have a debate over the renewal of this law that is informed by at least some accurate information about the impact it has had on Americans’ privacy.

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false.” We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark. Specifically we ask that you please answer the following questions:

  • The intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the FISA Amendments Act, and has even declined to estimate the scale of this collection. Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, or at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?
  • Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

Alexander replied to Wyden and Udall on November 13. In it, he responded to the first Wyden/Udall question by claiming he was speaking about a foreign intelligence context.

I noted at the outset that NSA has a foreign intelligence mission, and my subsequent reference focused on the type of circumstance in which U.S. person information may be disseminated when this foreign intelligence requirement is not met (e.g., when there is evidence of a crime).

He went on to rehearse the legal requirements for minimization, which only applies to information not deemed “foreign intelligence information.” That is, he basically admitted that information deemed to be foreign intelligence information can be shared.

Alexander answered the second Wyden/Udall question by dodging.

Second, my response did not refer to or address whether it is possible to identify the number of U.S. person communications that may be lawfully but incidentally intercepted pursuant to foreign intelligence collection directed against non-U.S. persons located outside the United States as authorized under FAA 702.

In your letter, you asked for unclassified answers to several questions that you feel are important to allow the public to better understand my remarks delivered at the conference. While I appreciate your desire to have responses to these questions on the public record, they directly relate to operational activities and complete answers would necessarily include classified information essential to our ability to collect foreign intelligence.

Wyden referred to these letters at least twice in his various speeches in this “debate.” And while he has been careful to suggest that Alexander may have just misspoke, he has repeatedly made it clear that Alexander lied when he said US person data could not be shared.

I don’t know why General Alexander described minimization as he did. But why did it take Udall and I to make big push to correct?

The implication, it seems, is that the government has simply deemed all the US person information they collect to be foreign intelligence (indeed, elsewhere Jeff Merkley talked about how the “relevant to an investigation” standard makes all conceivable information context for foreign intelligence), meaning minimization requirements are largely meaningless.

In response to Alexander’s claims on hundreds of millions of dossiers, Wyden noted, over and over again, that in spite of NSA’s refusal to answer the question of how many Americans’ data has been collected, Alexander did not in his response–and has not since–denied that NSA keeps hundreds of millions of dossiers on people.

Director of NSA would not provide public answer on whether NSA keeps hundreds of millions of dossiers on people.

Clearly, Alexanders denial that NSA keeps dossiers (which itself stems from claims former NSA coder William Binney made) is simply a word game about the meaning of dossier. NSA doesn’t have dossiers, you see. It has information on hundreds of millions of Americans.

Information–that Wyden makes clear–is not subject to the plain meaning of minimization requirements.