HPSCI

House Intelligence Parrot: These Programs Are Not Secret…

… but it’s a grave danger for you to know about them.

Bob Minehart, a staffer for Democrats (presumably Dutch Ruppersberger) on the House Intelligence Committee, has put together a pair of talking point documents for members of the House to talk about the programs revealed by the Guardian last week. (I found out Minehart is the author by checking the documents’ metadata.) The talking points largely track what James Clapper released, though with a few differences that may come from Mike Rogers which I may return to.

The talking points claim the reporting on the programs have inaccuracies.

The articles referenced above contain numerous inaccuracies that imply the United States Government is spying on Americans. That is just plain false.

But the documents include a number of claims that are meaningless, given the underlying standards involved.

The FISA Court authorizes intelligence collection only after the Intelligence Community has proven its case, based on underlying facts and investigations.

The most pathetic part of these talking points, however, is the claim that these are not secret programs. Not the Section 215 dragnet of every Americans’ call data.

There is no secret program involved here – it is strictly authorized by a U.S. statute.

And not the direct access to Internet companies data with just a 51% certainty that the data collected is foreign.

There is no secret program involved – it is strictly authorized by a U.S. statute.

But in spite of this claim that massive dragnets deceitfully denied in Congressional hearings are not secret, the PRISM-related set still warns about what grave danger the leak of the information created.

The unauthorized disclosure of information about this critical legal tool puts our national security in grave danger, puts Americans at risk of terrorist and cyber attacks, and puts our military intelligence resources in danger of being revealed to our adversaries.

These are not secret programs, Dutch Ruppersberger wants you to know. But revealing them will kill us all.

House Intelligence Committee Moves to Learn How OTHER Services Don’t Throw Away Incidental US Person Data

I’ve long been tracking the implications of the Air Force’s policy to keep US person data incidentally collected using domestic drones. Effectively, it would allow the government to collect data on select locations (such as a likely drug trafficking route), so long as it didn’t target any particular American, and then refer back to or data mine that information in the future.

The policy is (not surprisingly, since both are DOD) very nearly parallel to what we think is happening with the NSA’s collections. So long as they weren’t originally targeting a US person, the government seems to be saying, nothing prevents them from going back to use the data in the future.

Which is why I’m not all that impressed by the House Intelligence Committee’s push, in this year’s appropriations bill, to require other services and DOD agencies to lay out what they’re doing with domestic collections.

Congress has directed the Secretary of Defense to report on the handling of surveillance data collected by military unmanned aerial systems operating in domestic airspace.  A provision in the 2013 continuing appropriations conference bill approved by the House yesterday explained:

“The conferees are aware of concerns that have been raised regarding the use of unmanned aerial vehicles (UAV) and their sensors in domestic airspace. The conferees understand that the Air Force has policies and procedures in place governing the disposition of UAV collections that may inadvertently capture matters of concern to law enforcement agencies. These policies and procedures are designed to ensure constitutional protections and proper separation between the military and law enforcement. However, it is unclear if other Services and Defense agencies have similar policies and procedures in place, or if these policies and procedures need to be revised or standardized. Therefore, the conferees direct the Secretary of Defense to report to the congressional defense committees on the policies and procedures in place across the Services and Defense agencies governing the use of such collections and to identify any additional steps that need to be taken to ensure that such policies and procedures are adequate and consistent across the Department of Defense. This report shall be submitted not later than 90 days after the enactment of this Act.” [my emphasis]

Given the liberal policies the Air Force uses on “incidentally” collected information, it doesn’t seem to offer much protection under the Fourth Amendment (not least because the Clapper decision means we would never be able to challenge such collection). Rather, this effort seems designed to placate concerns about violations of Posse Comitatus and potentially stave off real privacy efforts.

When the Michael Chertoff threatened to use satellites to conduct this kind of surveillance 5 years ago, Democrats (led by Bennie Thompson and Jane Harman) balked, and forced Chertoff to back down. Since then, however, drones that can and do conduct the same kind of surveillance (in the guise of training, mind you!) have been rolled out without, until just recently, any focus on the same issues.

Yet another example of what a Democratic President can get away with that a Republican cannot.

30 Ways to Shrink Intelligence Oversight

Correction: I misunderstood a few things about this. First, this is the request from DNI, not what the Intelligence Committees have agreed to. And the House–which has taken up this request–did not accept all these requests (including the clearances audit). This post has been altered accordingly.

The DNI released their 2013 Intelligence Authorization request yesterday. Almost 10 pages of the 24 page document describe reporting that these “oversight” committees will no long require from the Intelligence Community. The bill starts by putting a default 3 year expiration on any new reporting requirements. And then it includes a list of 27 reports that the bill will eliminate and another 3 that it will modify.

And while some of the reports may well be redundant or outdated (the justification given for most of the changes), some seem really troubling. For example, the bill would eliminate a requirement–passed just three years ago–that the Administration audit and report (partially in unclassified form) the total number of security clearances and how long it takes to approve and reapprove those clearances. Here’s how the bill justifies eliminating such a report:

Justification: Section 506H includes two enduring reporting requirements. The requirement for a quadrennial audit of positions requiring security clearances should be repealed because the National Counterintelligence Executive, in partnership with other agencies with similar responsibilities, examines the manner in which security clearance requirements are determined more frequently than once every four years. Rather than submit a report regarding a quadrennial activity, the executive branch can provide more frequent briefings, as requested, if congressional interest persists.
With regard to the annual reporting requirement on security clearance determinations, the Executive Branch as a whole has made significant progress in expediting and streamlining the security clearance process since the passage of the Intelligence Reform and Terrorism Prevention Act, thus reducing the saliency of this report. This reporting requirement should be replaced by briefings, as requested, if congressional interest persists.

What this effectively does is eliminate one way for citizens to see at least the outlines and scope of our secret government. Rather than a partially unclassified report, instead, the intelligence community will brief Congress, rendering it not only secret, but eliminating some of the paperwork that can be FOIAed or archived.

The bill also would eliminate a requirement for the Director of National Intelligence and CIA Director to each provide an annual list of any advisory committees they’ve created, their subject, and their members. I’m guessing the proposed substitution–regular Congressional notifications and briefings–is probably not going to include the same level of detail. And given ODNI’s inadequate response to Electronic Frontier Foundation on an advisory committee as important as the Intelligence Oversight Board, I’m not all that confident it will provide adequate notice on more obscure advisory committees. Moreover, there is a history of advisory board members obtaining great influence and advantages from their position. Lists of members should be on paper somewhere.

Continue reading

CIA General Counsel: If the President Authorizes It, It’s Legal

I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–”national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

Continue reading

The “Oversight” over NCTC’s Not-Terrorist-Terrorist Database

Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

That should trouble you, because he’s the cornerstone of oversight over the National Counterterrorism Center’s expanded ability to obtain and do pattern analysis on US person data.

The Guidelines describe such oversight to include the following:

  • Periodic spot checks overseen by CLPO to make sure database use complies with Terms and Conditions
  • Periodic reviews to determine whether ongoing use of US person data “remains appropriate”
  • Reporting (the Guidelines don’t say by whom) of any “significant failure” to comply with guidelines; such reports go to the Director of NCTC, the ODNI General Counsel, the CLPO, DOJ (it doesn’t say whom at DOJ), and the IC Inspector General; note, the Guidelines don’t require reporting to the Intelligence Oversight Board, which should get notice of significant failures
  • Annual reports from the Director of NCTC on an (admittedly worthwhile) range of metrics on performance to the Guidelines; this report goes to the CLPO, ODNI General Counsel, the IC IG, and–if she requests it–the Assistant Attorney General for National Security

There are a few reasons to be skeptical of this. First, rather than replicate the audits recently mandated under the PATRIOT Act–in which the DOJ Inspector General develops the metrics, these Guidelines have NCTC develop the metrics themselves. And they’re designed to go to the CLPO, who officially reports to the NCTC head, rather than an IG with some independence.

That is, to a large extent, this oversight consists of NCTC reporting to itself.

Continue reading

CIA Secretly Breaking the Law with Impunity Again

Apparently, the Jan Schakowsky’s House Subcommittee completed its investigations of all the times the CIA failed to inform the Gang of Eight about covert ops and in other ways broke the law. Apparently, that investigation found “several instances” where CIA failed for follow the law procedures. But you can’t know precisely what those violations are, because they’re secret.

Here’s Silvestre Reyes’ statement on the investigation.

Today, the Committee officially completed its investigation into the congressional notification practices of the Intelligence Community by voting to adopt a final report presented by Subcommittee on Oversight and Investigations Chair Jan Schakowsky.

In its investigation, the Committee examined sixteen specific instances, spanning three Administrations, in which the Community did not provide Congress with complete, timely, and accurate information about intelligence activities. The Committee also examined federal law and regulations concerning the provision of information about intelligence activities to Congress; congressional notification policies, practices, and procedures across the Intelligence Community; and whether those contributed to any past notification failures.

The findings, I believe, are impressive and eye-opening. The report details the facts uncovered by the investigation in a thorough and even-handed manner. Its analysis is careful and well-founded. Its conclusions and recommendations are reasonable. I commend Ms. Schakowsky and her staff for their excellent work.

Given the sensitive nature of the investigation’s core issues, the content of the report is classified. I can say, though, that in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies. It’s the Committee’s aim to have these standards implemented on an official level, through policy, procedure, or law.

I am pleased to note that several of the recommendations contained in this report, including Gang of Eight reform, were largely enacted back in October when the President signed the FY2010 Intelligence Authorization Act into law.

Finally, let me emphasize that the Committee supports the efforts of the intelligence workforce in its difficult mission to keep America safe. And, while there may be differences of opinion with respect to specific findings, I think that all members can agree that the Committee must be kept fully and currently informed of significant intelligence activities in order to assist the Intelligence Community and keep them well-resourced. [my emphasis]

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Continue reading

Torture Tape Investigation in HPSCI

Last week we learned that John Durham asked a computer forensics expert to contribute to a legal declaration pertaining to whether or not the CIA Inspector General had–or had ever had–evidence pertaining to the interrogations of two Gitmo detainees.

Today we learn that two of the people involved in the Torture Tape destruction are current high-raking Administration officials.

The [HPSCI] panel interviewed two “current, high-level government officials” in April, according to a congressional official, who declined to name the officials.

Both [Intelligence] panels have interviewed CIA Director Michael V. Hayden. 

It’s not clear whether this passage means that Hayden (who just resigned from the military) is one of the two "current, high-level government officials" or not–he’d certainly qualify.

But that leaves another "current, high-level government official." This is significant because several of the key players (like Jose Rodriguez, who remains under subpoena from HPSCI) are former officials. Two notable exceptions are John Rizzo, who works in CIA’s General Counsel office, and John Helgerson, CIA’s Inspector General. We also know that John Negroponte, currently at State, wrote a memo pertaining to the Torture Tapes when he was DNI. Finally, there’s always everyone’s favorite current high-level government official involved with the torture tapes, David Addington.

But I’m not holding my breath.

I’m just as intrigued by the news that Crazy Pete Hoekstra and Silvestre Reyes have gotten into a spat over this investigation.

The House investigation has been riven by partisan disputes. In January, Peter Hoekstra of Michigan, the panel’s ranking Republican, publicly took issue with Democrats over issuing a subpoena for Rodriguez, selecting witnesses and other aspects of the investigation. Democrats have maintained that they have been responsive to Republican input.

A spokesman for Hoekstra declined to comment Tuesday.

As I have said repeatedly, one of the people spinning hard to dissociate himself from the Torture Tape destruction is Porter Goss, who was head of the CIA when the Torture Tape was destroyed, and who received Negroponte’s warning not to destroy the Torture Tape. I’ve long worried that an HPSCI investigation, handled badly, would work the same way Lee Hamilton and Dick Cheney’s HPSCI investigation into Iran-Contra did–to immunize key players from prosecution. In particular, I’ve worried about Pete Hoekstra attempting to protect his former colleague, Porter Goss, from any incrimination.

So I consider it a good sign that Crazy Pete has his knickers in a twist about the investigation. 

Shorter Rizzo to Rodriguez: Well, If You’re Not Going to Testify, I Will Screw You

Remember how I suggested that this passage from Pincus’ love letter to Bob Bennett and his client Jose Rodriguez might be targeted to (among others) Porter Goss and John Rizzo?

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

Well, here’s what Rizzo had to say to that.

 "I told the truth," Rizzo said in a brief appearance before reporters.

Which doesn’t sound like it was all too helpful for Rodriguez’ little story. Continue reading

Emptywheel Twitterverse
bmaz @cocktailhag @lrozen But, hey, I am only 50+ years old+not an international sage who has called for intervention over years. Whatta I know?
2hreplyretweetfavorite
bmaz @cocktailhag @lrozen No, inspire of all the war drum bangers, I have, per long history, no respect, and only contempt.
2hreplyretweetfavorite
bmaz @cocktailhag Well, my original indoctrination to the principle was: "Long arm for taking, and a short arm for giving". About 30 years ago.
2hreplyretweetfavorite
bmaz Whats scary pathetic is that half wit "experts" in "press" are again agitating, just like Vietnam, Iraq, Libya etc for war in Syria+Ukraine
2hreplyretweetfavorite
bmaz I am not sure you geniuses on the east coast with long arm for asking, and short arm for answering, actually give a shit about Sep of Pwrs.
3hreplyretweetfavorite
bmaz I KNOW all you DC Press Peoples are all up on everything, but after weeks of telling you, now @lawfareblog says so, can you pay attention?
3hreplyretweetfavorite
bmaz Maybe the war drum bangers for Syria, Iraq, Ukraine, Somalia+all the other asinine places in world are right; history says no. cc: @lrozen
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bmaz .@nicholsong Ooops, yeah, I fell for that BS back in the day, see: http://t.co/zj45YfdKlZ But turned out to be total bullshit. cc: @lrozen
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bmaz .@nicholsong You have something that says the current, apparent, Obama Admin. rolling desecration of the WPR is fine and dandy? Really?
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bmaz So, sorry, hope I didn't insult any of high holy 30 somethings over petty little thing like Sep of Pwrs. Cause, you know #PoliticalBullshit
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bmaz Lawdy, I JUST CAN'T WAIT for some nubes at @TNR to tell me how freakin OK+normal it is for Obama to be desecrating WPR Separation of Powers.
3hreplyretweetfavorite
bmaz @timmathews Really, that is a great location, right in the heart of New Orleans. #BonusPointsForFalseCheer?
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