Dick Cheney

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In Telling of Brennan Fit, Panetta Somehow Forgets the Torture Documents Stolen Back for the White House

As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.

With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.

To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.

She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.

When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.

“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”

I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.

[snip]

It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.

Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.

There are just three problems with this story.

First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.

In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.

In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.

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.

And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.

We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.

While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.

Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.

Noted Torture Apologist, Branded a Terrorist

For months, I’ve been pointing out that the fear-mongering estimates about the number of Americans who have joined ISIS are inflated due to faulty Terror Watchlist procedures.

That’s in large part because the government considers any unexplained travel to a place known for its terrorist training enough to treat you as a Suspected Terrorist.

[T]he government considers traveling to an area of terrorist activity to be reasonable suspicion that someone is a known or suspected terrorist. The watchlist guidelines list just that as one behavioral indicator for being watchlisted as a known or suspected terrorist (see page 35).

3.9.4 Travel for no known lawful or legitimate purpose to a locus of TERRORIST ACTIVITY.

This means that any Americans who have traveled to Syria or Iraq are likely classified, by default, as terrorists. And many of those may have traveled for entirely different reasons (like freelance journalism).

Given the realities of travel to Syria, this must (and has, among people indicted for attempted material support) extend to people who make one-way travel plans to Turkey, from whence recruits often walk across the border.

Yesterday, Spencer Ackerman got a Senior Official to make the same point I’ve been making — the 100 alleged fighters include a lot of people who are not fighters but instead got swept up because the terror watchlisting process is way too dysfunctional.

The US government believes there are 20 to 30 Americans currently fighting in Syria for the panoply of jihadist groups there, according to a senior official.

The estimate is less than an earlier and much-quoted assessment of approximately 100 Americans taking part in Syria’s civil war and the spillover violence in neighboring Iraq, where the Islamic State militant group (Isis) has launched a war of conquest.

A senior administration official, speaking to the Guardian on condition of anonymity, said that the estimate of roughly 100 represented all Americans who have travelled to Syria or attempted to travel to Syria over the past 18 months, a qualification that US government spokespeople have typically not provided.

Not all of the 20 to 30 Americans went to Syria to join Isis. Some fight with rebel groups resisting the regime of dictator Bashar al-Assad or rival jihadist groups.

[snip]

Nor have all the 100-odd Americans who have travelled or attempted to travel to Syria in the past year and a half gone to fight. The estimate also includes humanitarian aid workers and others attempting to alleviate the Middle East’s most brutal conflict, the official said.

Told ya.

If you want to see how ridiculous this is in practice (or, perhaps, how ironically appropriate) consider the plight of Stephen Hayes, Dick Cheney’s mouthpiece and all-around torture apologist. He recently got put on the Selectee list because — he believes — he made a one way trip to Istanbul for what was actually a cruise but if you do lots of mindless dragnettery might appear like a trip to join Jabhat al-Nusra. (I wouldn’t be surprised if he’s two degrees from some suspect, given how broadly those things get defined and how many international acquaintances he has.)

Hayes, who spoke to POLITICO by phone on Tuesday, suspects that the decision stems from U.S. concerns over Syria. Hayes and his wife recently booked a one-way trip to Istanbul for a cruise, and returned to the States, a few weeks later, via Athens.

It turns out Hayes is finding out the same thing I learned when my white northern European over-educated spouse went through the immigration process. Even for people who have resources and perfect English, making the bureaucracy work the way it is supposed to can be daunting.

At the time of our conversation, Hayes was on the DHS website trying to fill out forms to get his name cleared. It wasn’t going well.

“Not surprisingly, it’s confusing,” Hayes said. “The first time I did it, the whole site froze. Now it’s asking me for my passport number and a bunch of other information. Then I think I’m supposed to submit an actual copy of my passport, which I obviously can’t do electronically.”

Yes, I admit some glee that some like Hayes got swept up in the mindless dragnettery his boss championed. But even Hayes — whose life will soon be back to normal, I imagine — does not deserve this pointless harassment.

Consider how much worse this accidental terror-tourism is for Muslims who can’t run to the press which will mock their plight?

Stephen Hayes may be, by many measures, a horrible human being, arguably even a material supporter of war crimes. But his cruise out of Turkey does not make him a terrorist, no matter what the National Counterterrorism Center claims.

Happy Monday of Drum-Up-War Week

”From a marketing point of view, you don’t introduce new products in August.” —  Andy Card

12 years ago today, Michael Gordon and Judy Miller published a story about aluminum tubes based off deliberate leaks from Dick Cheney and Condi Rice. Dick Cheney then cited the story on Meet the Press.

More than a decade after Saddam Hussein agreed to give up weapons of mass destruction, Iraq has stepped up its quest for nuclear weapons and has embarked on a worldwide hunt for materials to make an atomic bomb, Bush administration officials said today.

Yesterday, Obama himself appeared on Meet the Press, to roll out his new war.

CHUCK TODD:

Thanks for doing this. We start with a very basic question. Are you preparing the country to go back to war?

PRES. OBAMA:

I’m preparing the country to make sure that we deal with a threat from ISIL. Keep in mind that this is something that we know how to do. We’ve been dealing with terrorist threats for quite some time. This administration has systematically dismantled Al Qaeda in the FATA.

ISIL poses a broader threat because of its territorial ambitions in Iraq and Syria. But the good news is coming back from the most recent NATO meeting is the entire international community understands that this is something that has to be dealt with.

So what I have done over the last several months is, first and foremost, make sure that we got eyes on the problem, that we shifted resources, intelligence, reconnaissance. We did an assessment on the ground. The second step was to make sure that we protected American personnel, our embassies, our consulates. That included taking air strikes to ensure that towns like Erbil were not overrun, critical infrastructure, like the Mosul Dam was protected, and that we were able to engage in key humanitarian assistance programs that have saved thousands of lives.

The next phase is now to start going on some offense. We have to get an Iraqi government in place. And I’m optimistic that next week, we should be able to get that done. And I will then meet with congressional leaders on Tuesday. On Wednesday, I’ll make a speech and describe what our game plan’s going to be going forward.

But this is not going to be an announcement about U.S. ground troops. This is not the equivalent of the Iraq war. What this is is similar to the kinds of counterterrorism campaigns that we’ve been engaging in consistently over the last five, six, seven years. And the good news is is that because of American leadership, we have I believe, a broad-based coalition internationally and regionally to be able to deal with the problem.

And the NYT — including Michael Gordon — published a story based partly on leaks (those are about bombing Syria) from senior officials warning that this war would take 3 years.

The Obama administration is preparing to carry out a campaign against theIslamic State in Iraq and Syria that may take three years to complete, requiring a sustained effort that could last until after President Obamahas left office, according to senior administration officials.

On Wednesday, Obama will roll out this new war, just in time for 9/11.

I’m thinking if maybe we could force Michael Gordon to take the entire month of September off in the future we might get out of this war cycle?

If note, we might as well just mark this in our regular calendar: Labor Day, Back to School, New War Roll-Out. Because it seems to be an annual thing.

Tortured Diplomacy

The AP has a story reporting (something that was public) that Colin Powell was not briefed on torture from the start, which meant in several cases Ambassadors to affected countries got briefed and instructed not to tell their superiors.

A Senate report on the CIA’s interrogation and detention practices after the 9/11 attacks concludes that the agency initially kept the secretary of state and some U.S. ambassadors in the dark about harsh techniques and secret prisons, according to a document circulating among White House staff.

The still-classified report also says some ambassadors who were informed about interrogations of al-Qaida detainees at so-called black sites in their countries were instructed not to tell their superiors at the State Department, the document says.

[snip]

A former senior CIA official said the secretary of state at the time, Colin Powell, eventually was informed about the program and sat in meetings in which harsh interrogation techniques were discussed. But Powell may not have been informed when the techniques were first used in 2002, the official said.

[snip]

The former CIA official said it would be standard practice for ambassadors informed about a covert operation to be instructed not to share it with others who did not have a “need to know,” as determined by the National Security Agency. Ambassadors in countries in which the CIA set up black sites to interrogate prisoners were usually told about it, said the official, who, like others interviewed for this story, would not be quoted by name because some of the information remains classified.

This narrative — developed as part of the initial Senate Intelligence Committee effort to study torture which ultimately became the torture report — suggests Colin Powell may not have briefed on torture techniques until September 16, 2003.

According to CIA records, pursuant to a request from the National Security
Adviser, the Director of Central Intelligence subsequently briefed the Secretary of
State and the Secretary of Defense on the CIA’s interrogation techniques on
September 16, 2003.

That seems very late — but he was apparently specifically not invited to a July 2003 meeting at which Principals reauthorized torture even in light of Khalid Sheikh Mohammed’s treatment. And these two comments from 2009 were awfully vague.

Remember, in January 2002, Powell and others at State tried very hard to get Bush to adhere to the Geneva Conventions they failed. Which is probably why he didn’t find out for a long time.

In any case, the implication is that Powell’s Ambassadors knew, but Powell did not.

I’ve just started looking at who the Ambassadors in question might be — especially with AP’s anonymous and probably lying CIA source claiming Ambassadors did get told (which the CIA often doesn’t do but which is a violation of protocol) but two stick out right away.

First, there’s Darryl Johnson, Ambassador to Thailand while Abu Zubaydah was being tortured. I don’t know anything about him, but note he presented his credentials on March 29, literally the day after Zubaydah was captured in Pakistan. Imagine asking your hosts to use their military base to torture people on on your second day officially on the job!

Even more interesting is Chris Hill, the lifetime diplomat who was Ambassador to Poland from 2000 through 2004, spanning the period when a number of detainees were being tortured. Hill went on to serve as Ambassador to South Korea immediately thereafter, then became Assistant Secretary of State for East Asia. In the latter two roles he played a key role in the 6-party talks with North Korea and had very significant disagreements with Dick Cheney. Hill then went on to serve as Ambassador to Iraq. I find it interesting to imagine how knowledge of Cheney’s torture might have made their principled disagreements even worse.

Of course, it’s possible AP’s source is lying and none of these men — or the other Ambassadors in the black site countries — really were briefed.

Update: Here’s a 2008 story (there were many similar ones at the time) that insinuates Powell was at the torture meetings. I think it’s meant to deceive.

PapaDick and BabyDick Try to Sustain the Terror Industry

PapaDick and BabyDick Cheney are at it again. They’ve got a piece in the Weekly Standard trying to renew the magic power of terrorterrorterror.

The intelligence claims they make are so batshit crazy they’re even being debunked in the WSJ (by a 9/11 Commission staffer).

But as with the other PapaDick/BabyDick interventions, I’m interested in certain of their detailed plans, which they hide after all their batshit intelligence lies.

The goal here, first of all, is to “get back on offense in the war on terror.”

As we work to defeat ISIS in Iraq and prevent the growth of a terrorist state in the heart of the Middle East, we must also move globally to get back on offense in the war on terror. This means, first, recognizing and admitting the size and scope of the threat we face. Al Qaeda is not “diminished,” nor is “the tide of war receding.” We remain at war, and law enforcement mechanisms will not keep us safe.

Part of that requires spending more than we already do on defense — which hints at one of the clients they’re working for here.

Second, we need to reverse the dramatic decline in defense spending we’ve seen in the last six years. A nation at war cannot hope to prevail if only 4 of its 42 Army brigades are combat ready. We need to make restoration of our military and a reversal of the disastrous defense budget cuts one of our top priorities.

We must occupy Afghanistan even if they don’t want us.

Third, we need to halt the drawdown of our troops in Afghanistan. The tragedy, terror, and chaos in Iraq will be repeated in Afghanistan if we abandon the fight there. Pulling out all U.S. troops without regard to conditions on the ground or the recommendations of our commanders will ensure a victory for America’s enemies.

As with PapaDick and BabyDick’s earlier recent eruptions, they’re serving our “friends and allies in the Middle East,” not necessary the American people.

Fourth, we need to reassure our friends and allies in the Middle East that America will not abandon them. We need to demonstrate through increased intelligence cooperation, military assistance, training, joint exercises, and economic support that we know they are on the front lines of the war on terror.

This apparently includes the military coup government in Egypt, and serving them requires even more arms.

We should immediately provide the Apache helicopters and other military support the government of Egypt needs to fight the al Qaeda insurgency in the Sinai.

And we must ignore all precedent on nukes just for Iran, because it threatens nuclear armed Israel.

Fifth, we should be clear that we recognize a nuclear-armed Iran is an existential threat to Israel and to other nations in the region, as well. We should refuse to accept any “deal” with the Iranians that allows them to continue to spin centrifuges and enrich uranium. In the cauldron of the Middle East today, accepting a false deal—as the Obama administration seems inclined to do—will only ensure Iran attains a nuclear weapon and spark a nuclear arms race across the region. The Iranians should know without a doubt that we will not allow that to happen, and that we will take military action if necessary to stop it.

We must renew our imperial push, even while screaming terrorterrorterror, because our puppet masters in the Middle East require it.

That, and more Apache helicopters.

Maybe It’s Time Liz and Dick Cheney Registered Under FARA?

In my Salon piece last week, I noted that in their attack on Obama, Liz and Dick Cheney were talking about interests, but made it clear they were really presenting the interests of “capitals from the Persian Gulf to Israel.”

And we should note whose interests Cheney represents.

Clearly, his temper tantrum serves, in part, to distract from his own culpability.

But note who else’s views Cheney cites? He claims he heard “a constant refrain in capitals from the Persian Gulf to Israel,” complaining about Obama’s actions. He describes a senior official in an Arab capital laying out ISIS’ aspirations on a map. He portrays those same figures in the Middle East demanding, “Why is he abandoning your friends?” “Why is he doing deals with your enemies?”

Even while Cheney parrots the interests of Middle Eastern leaders and conflates their interests with America’s, he scoffs at Obama’s (belated) efforts to address a far more immediate risk for America, climate change.

They’re back at it:

“I think the notion that somehow the Iranians have any interests in common with us is outrageous,” [Liz] Cheney said Tuesday on Rush Limbaugh’s radio show, according to a transcript. “The fact that we might be working with the Iranians again just gives our allies — you know — they’re apoplectic.”

This whole “Alliance for a Stronger America” schtick seems to do nothing else but lobby for the use of American service members and weapons to serve the interests of our “friends” — presumably Saudi Arabia and Israel — in the Middle East.

If they want to advocate for risking US lives and treasure to serve the Saudis, that’s their prerogative. But the law — the Foreign Agents Registration Act — requires that “ persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

It’s probably time for the Cheney’s to disclose who they’re working for here. No matter how prominently they feature the word “America” in their organization name, they appear to be working for other governments. Given that they’re acting like agents of a foreign power, they probably should admit that formally.

Dick Cheney’s Interests: Not Ours

In Salon today, I’ve joined the chorus of people objecting to PapaDick Cheney and his spawn Liz BabyDick’s op-ed claiming of Obama that, “Rarely has a U.S. president been so wrong about so much at the expense of so many.” 

In addition to reviewing some of the so wrong things Cheney said 12 years ago to get us into Iraq, I look closely at two things few others have, both suggesting certain things about whose interests Cheney claims to represent.

First, while claiming to speak for America’s interests in Iraq, he actually cites the leaders of Middle Eastern countries.

Clearly, his temper tantrum serves, in part, to distract from his own culpability.

But note who else’s views Cheney cites? He claims he heard “a constant refrain in capitals from the Persian Gulf to Israel,” complaining about Obama’s actions. He describes a senior official in an Arab capital laying out ISIS’ aspirations on a map. He portrays those same figures in the Middle East demanding, “Why is he abandoning your friends?” “Why is he doing deals with your enemies?”

And he does so even while he mocks the notion of actually doing something about climate change, a threat that (in the form of extreme weather events) more immediately threatens Americans today.

Even while Cheney parrots the interests of Middle Eastern leaders and conflates their interests with America’s, he scoffs at Obama’s (belated) efforts to address a far more immediate risk for America, climate change. “Iraq is at risk of falling to a radical Islamic terror group and Mr. Obama is talking climate change,” Cheney complains.

ISIS may be overrunning Iraqi cities, but extreme weather events are endangering cities in the United States and across the world. Much of the American West is struggling with extreme drought. Cheney, however, would have the president ignore this threat and instead prioritize the concerns he heard from his friends in the Middle East.

ISIS’ actions in Iraq are troubling — though it’s not clear that the US can do anything to fix it, certainly not now.

But the US has real problems here at home that threaten American lives and well-being. We really need to spend time working on our own governance before we decide to re-govern another country on the other side of the world.

Peter Baker, Meat Grinder for Bush

Screen shot 2013-10-10 at 10.45.46 AM

In the NYT, Peter Baker presents his version of George Bush’s decision not to pardon Scooter Libby as the best pitch for his new book, Days of Fire, Bush and Cheney in the White House. Given that the piece is not at all newsworthy (and as I’ll show, Baker’s version of it is badly flawed), I suppose Baker thought that Bush’s refusal to fulfill Cheney’s request supports Baker’s contention that Bush, not Cheney, was the dominant player in the relationship.

One piece of evidence Baker provides to support that contention is this quote from Alan Simpson.

Cheney “never did anything in his time serving George W. that George W. didn’t either sanction or approve of,” said Alan Simpson, a former Republican senator from Wyoming and a close friend of Cheney’s.

If Baker believes Simpson’s claim, however, then his entire reading of Cheney’s involvement in leaking Valerie Plame’s identity is wrong (and not just because he quotes Liz Cheney pretending PapaDick had no role in the leak).

Baker provides dialogue suggesting that Bush and certain lawyers — Baker identifies them as White House Counsel Fred Fielding and his Deputy William Burck — debated whether Libby was protecting Cheney.

“All right,” the president said when the lawyers concluded their assessment. “So why do you think he did it? Do you think he was protecting the vice president?”

“I don’t think he was protecting the vice president,” Burck said.

Burck figured that Libby assumed his account would never be contradicted, because prosecutors could not force reporters to violate vows of confidentiality to their sources. “I think also that Libby was concerned,” Burck said. “Because he took to heart what you said back then: that you would fire anybody that you knew was involved in this. I just think he didn’t think it was worth falling on the sword.”

Bush did not seem convinced. “I think he still thinks he was protecting Cheney,” the president said. If that was the case, then Cheney was seeking forgiveness for the man who had sacrificed himself on his behalf.

Baker implies that Bush’s conclusion — that Libby believed he was protecting Cheney — convinced himself it would not be ethical to pardon Libby based on Cheney’s insistence. (Note, whatever you and I were paying Burck, it was far too much, because his logic as portrayed here is pathetically stupid.)

That would imply that Bush believed — Burck’s shitty counsel to the contrary — that Cheney played some role in the leak.

But Alan Simpson, who truly does know Cheney well, says Cheney never did anything without either Bush’s sanction or approval. Which would imply that whatever Cheney did to leak Plame’s identity, he did with the approval of Bush.

Which brings us to the other gaping hole in Baker’s account (aside from his complete misunderstanding of the evidence surrounding the leak itself). Baker uses the word “lawyers” 11 times in this excerpt, including (but not limited to) the following.

In the final days of his presidency, George W. Bush sat behind his desk in the Oval Office, chewing gum and staring into the distance as two White House lawyers briefed him on the possible last-minute pardon of I. Lewis Libby.

“Do you think he did it?” Bush asked.

“Yeah,” one of the lawyers said. “I think he did it.”

[snip]

At the time, Bush said publicly that he was not substituting his judgment for that of the jury. So how would he explain a change of mind just 18 months later? That was the argument Ed Gillespie, the president’s counselor, made to Cheney when he came to explain why he was advising Bush against a pardon. “On top of that, the lawyers are not making the case for it,” Gillespie told Cheney, referring to the White House attorneys reviewing the case for Bush. “We’ll be asked, ‘Did the lawyers recommend it?’ And if the lawyers didn’t, it’s going to be hard to justify for the president.”

[snip]

The following Monday, Bush had his final, definitive meeting with the White House lawyers, ending any possibility of reconsideration. There would be no pardon for Libby. [my emphasis]

Lawyers lawyers lawyers. Baker emphasizes how important the counsel of Nixon’s old lawyer and his apparently half-witted deputy were to Bush’s decision, and he implies, with his description of which lawyers Ed Gillespie referred to, that those lawyers were limited to official White House lawyers.

Nowhere — at least nowhere in this excerpt — does Baker mention that Bush also consulted with his own lawyer, Jim Sharp, as reported by Time 4 years ago.

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004. Sharp was known in Washington as one of the best lawyers nobody knew.

[snip]

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. “What’s the bottom line here? Did this guy lie or not?”

The lawyer, who had followed the case very closely, replied affirmatively.

Yet neither Time then nor Baker now considered the implications of Bush consulting with the lawyer who knew what questions he got asked when Pat Fitzgerald interviewed the President.

Those questions would have included whether — as Libby’s grand jury testimony recorded Cheney as having claimed — the President declassified the information, including Plame’s identity, Cheney ordered Libby to leak to Judy Miller. They also would have included why — as the note above shows — Cheney almost wrote that “the Pres” had ordered Libby to stick his neck in a meat grinder and rebut Joe Wilson, before he cross out the reference to the President and used the passive voice instead. They would have also included questions about Bush’s public comments about rebutting Wilson in meetings. (I laid out these details in this post.)

Peter Baker pretends that Bush had no personal knowledge of the leak or — more importantly — of Fitzgerald’s reasons for suspecting Cheney ordered the leak. He somehow forgets that Bush consulted his own lawyer, along with Fielding and Fielding’s lackey, either to interpret what Libby did or, more likely, what implications pardoning Libby would have for his own legal exposure.

Which is pretty bizarre. While including these details might make Bush look like a self-interested asshole, they are the only details that make sense if — as Baker suggests with the Simpson quote — whatever Cheney did that required Libby’s protection, he did with Bush’s sanction.

Could an Independent NSA Inspector General Have Prevented 3 Years of Violations?

Last week, two former Senate Intelligence Committee members proposed a fix for the NSA no one has yet floated: making NSA’s Inspector General independent. Doing so, they argue, would give the IG more leeway to direct her investigations of the NSA and provide Congress needed insight into NSA’s real activities.

But one important option has yet to be proposed: creating an independent inspector general’s office at the NSA, comparable to the office that was created within the CIA in 1989.

[snip]

Not only was the inspector general’s office viewed differently after the law was passed, but the office itself was different. It decided which of the CIA’s activities would be investigated, inspected or audited without waiting for direction or approval from agency management. Employees of the IG’s office no longer had to worry about the potential effect on their careers if their findings and conclusions were critical of the agency. They may not have always gotten everything right, but they were freer to call things as they saw them and did so, at times to the chagrin of CIA management.

Having an independent inspector general at the CIA produced other advantages for the oversight process: It gave the congressional intelligence committees a more reliable partner — an office that lawmakers could call upon to conduct investigations beyond their own capabilities — and they learned of problems they otherwise might not have come across.

The same dynamic is not possible at the NSA today because the agency’s inspector general is appointed by and works for the NSA director. For all practical purposes, he is a member of the director’s staff and does not report directly to the intelligence committees.

I’m particularly interested in this recommendation given a few data points from the transition period between the illegal phone dragnet to the Section 215 dragnet in 2006.

As the documents submitted in 2009 make clear, the dragnet remained largely if not entirely unchanged from what it was before 2006. The initial “bug” that “arose” in 2009 was really just a “feature” — an alert system on suspect phone identifiers — of the illegal program that never got shut down or properly disclosed to the FISA Court. Many of the subsequent “bugs” (such as access to the queried data for FBI and CIA) also seem to be “features” no one turned off to keep the program legal.

And the Inspector General (from 2002 to 2006, NSA defender Joel Brenner served in that role) knew about the features of the illegal program because he was belatedly read into the illegal program in 2002 and actually provided 3 suggestions to improve oversight of it (see pages 45-46). Among other things, Brenner instituted and attended monthly due diligence meetings.

As Keith Alexander’s February 2009 declaration to Reggie Walton reveals, as the program was transferring to FISC authorization in 2006, someone in the IG office suggested NSA tell the FISA Court how the alert system worked, but NSA chose not to follow that suggestion.

Agency records indicate that, in April 2006, when the Business Records Order was being proposed, NSA’s Office of Inspector General (“OIG”) suggested to SID personnel that the alert process be spelled out in any prospective Order for clarity but this suggestion was not adopted.

More interesting still is the role of a 2006 study submitted to the FISA Court (starting at 85). Continue reading

By “Secret Law” Did They Mean “Not Written Down”?

For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.

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