As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.
The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)
The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.
On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.
MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.
Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.
Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.
As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.
Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.
The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:
Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.
The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Continue reading
Some time in mid-2004, 8 high ranking National Security officials gave then presiding FISA Court Judge Colleen Kollar-Kotelly a briefing. Their goal was to convince her the then halted and now-discontinued Internet dragnet program was so important, and the terrorist threat against the US so great, she should write a shoddy legal opinion authorizing NSA to restart the program under the authority of the FISA Pen Register statute.
As part of the briefing, they replicated a process they had used for Bush’s illegal wiretap program: to have CIA’s analytical people write what they called a “scary memo” explaining why al Qaeda was so dangerous we had to continue that dragnet.
After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to’ undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. [my emphasis]
As head of the Terrorist Threat Integration Center (and later as head of the nascent National Counterterrorism Center), John Brennan oversaw that “scary memo.”
Last year, John Brennan admitted that he used information derived from the torture program (he calls it the detention and interrogation program) for those “scary memos.”
Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives. Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?
Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.
Burr: I said I wasn’t clear whether I understood, whether whether I was clear.
Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.
Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.
Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation. [my emphasis]
We can imagine the kind of things Brennan might have used in his “scary memos” and that briefing to Kollar-Kotelly, on which the entire FISC-authorized dragnet .
Hassan Ghul — whom CIA tortured even after he provided critical information about Osama bin Laden’s courier — was already in custody, and given uncertainty about when his torture started, may have provided such information.
On March 20, 2013, I wrote one of several stories calling bullshit on reports that CIA would get out of the drone business. Not only did John Brennan’s actions up to that point (as opposed to what had been leaked to journalists anonymously) make it clear he intended for CIA to keep that portfolio. But his confirmation testimony made it clear he intended to retain and use CIA’s paramilitary — as distinct from traditional military — capabilities (and no, I’m not sure where the line between the two lies).
Today, the NYT has another of those stories reporting that — shock!! — I was right after all. It has a new twist though. It selectively quotes from Brennan’s confirmation materials to suggest he testified he would get CIA out of paramilitary operations.
During his confirmation hearings, Mr. Brennan obliquely criticized the performance of American spy agencies in providing intelligence and analysis of the Arab revolutions that began in 2009, and said the C.I.A. needed to cede some of its paramilitary role to the Pentagon.
“The C.I.A. should not be doing traditional military activities and operations,” he said.
This is what the quote actually looked like in context.
MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.
And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?
BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.
And the CIA should not be doing traditional military activities and operations. [my emphasis]
That is, Brennan was not suggesting CIA should get out of paramilitary ops. On the contrary, he said CIA should retain that ability but not do traditional military activities.
His responses to questions for the record were even more clear.
What role do you see for the CIA in paramilitary-style intelligence activities or covert action?
The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.
How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action?
As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly.
The NYT quotes one more Brennan claim with much more fidelity, however, and in a way that is far more illuminating to the story it tells.
“Despite rampant rumors that the C.I.A. is getting out of the counterterrorism business, nothing could be further from the truth,” the C.I.A. director said during a speech last month at the Council on Foreign Relations.
The agency’s covert action authorities and relationships with foreign spy services, Mr. Brennan said, “will keep the C.I.A. on the front lines of our counterterrorism efforts for many years to come.”
Those lines come from this speech, which was most closely watched as Brennan’s rebuttal to Dianne Feinstein on the torture report, but which in fact declared the war on terror would continue along the same lines as it had since 9/11.
And despite rampant rumors that the CIA is getting out of the counterterrorism business, nothing could be further from the truth. CIA’s global mission, our intelligence collection, analysis, and covert action authorities and capabilities, as well as our extensive liaison relationships with intelligence and security services worldwide, will keep CIA on the frontlines of our counterterrorism efforts for many years to come.
Which is interesting, because the items reported in NYT’s story all say more about the US remaining hostage to the way we outsourced certain intelligence activities after 9/11 than anything else.
As a reminder, the Gloves Come Off Memorandum crafted by Cofer Black and signed on September 17, 2001 included a number of different activities. In addition to capturing and detaining top al Qaeda leaders (which became the torture program) and killing top al Qaeda figures using Predator drones (which remains in CIA hands), it authorized heavily subsidizing (“buying” was the word Bob Woodward used) Arab liaison services, originally including Jordan and Egypt but presumably adding Saudi Arabia once we got over the fact that the Saudis had ties to the attack. In a 2006 interview, John Brennan echoed and endorsed Cofer Black’s plan when discussing the war on terror.
With that in mind, consider the real scope of the details described in the NYT story:
That is, the NYT is really reporting that, in spite of nominal efforts to change things, we remain captive to those relationships with liaison services, almost 13 years after 9/11. And that happens to also translate into operating drone strikes in such a way that two countries which were implicated in the 9/11 attacks — Pakistan and especially Saudi Arabia — have managed to stay relevant and above criticism by sustaining (perhaps artificially) our dependence on them.
And, almost certainly, the President’s implicit role in all these actions gives the CIA the institutional clout to make sure it retains whatever parts of this portfolio it cares to.
This, at least, should be the story.
In all of these countries, it’s not clear whether our reliance on these long-term partners helps or exacerbates the war on terror. But no one should maintain any illusions that it will change.
Trying to prove once again that no level of hypocrisy is ever high enough for the US security theater industrial complex, today’s New York Times gives space for John Brennan to lament the use of Syria as a training ground for al Qaeda terrorists. Never mind that the US touted its efforts at developing death squads to send into Syria last fall, we must be outraged against this latest development:
Dozens of seasoned militant fighters, including some midlevel planners, have traveled to Syria from Pakistan in recent months in what American intelligence and counterterrorism officials fear is an effort to lay the foundation for future strikes against Europe and the United States.
“We are concerned about the use of Syrian territory by the Al Qaeda organization to recruit individuals and develop the capability to be able not just to carry out attacks inside of Syria, but also to use Syria as a launching pad,” John O. Brennan, the C.I.A. director, told a House panel recently.
But wait a minute. Didn’t we spend all that time and money droning the shit out of the terrorists in Pakistan? Oh, yeah:
The extremists who concern Mr. Brennan are part of a group of Qaeda operatives in Pakistan that has been severely depleted in recent years by a decade of American drone strikes. But the fighters still bring a wide range of skills to the battlefield, such as bomb-building, small-arms tactics, logistics, religious indoctrination and planning, though they are not believed to have experience in launching attacks in the West.
That is just classic Brennan security theater. We are supposed to get our panties in a wad about a group that he spent years to render “severely depleted” and now they suddenly are going to move to Syria, where they will magically develop the ability to attack the West even though they “are not believed to have experience in launching attacks in the West”.
Okay, then. Recall that just back in September, the US was thumping its chest over its own efforts in training death squads for Syria. Except that Obama then had to doctor the record a bit on the timing and size of the first death squad we sent in when it coincided too closely with the chemical weapons attack in August. Oh, and we had to tell people that the guy eating his opponent’s heart really was from one of the moderate groups we were training.
The bottom line is that the US can use the region to train any group of terrorists it wants to use in service of its own goals, but nobody else is allowed to do exactly what we are doing.
Meanwhile, the humanitarian situation in Syria remains dire. Reuters reports on a just released but not published report from the UN. And, of course, the US is wasting no time in spinning the findings of the report:
A U.N. report on how Syria’s neediest civilians are often not accessible to humanitarian relief workers makes it clear that the government of President Bashar al-Assad shoulders most of the blame, a U.S. official said on Tuesday.
“What the report shows is that the magnitude and frequency of violence committed by the Assad regime far outstrips that of the armed groups in Syria,” a U.S. official told Reuters on condition of anonymity.
“The Syrian government’s massive and indiscriminate use of violence is the single most important factor driving the humanitarian crisis,” the official said. “The report is very clear on this and in pointing to the government’s failure to implement the resolution’s provisions.”
Information released to date doesn’t make either side look very good: Continue reading
Back when Mark Udall first hinted about the CIA’s efforts to intimidate the Senate Intelligence Committee, he said CIA had taken “unprecedented action.”
That’s language Harry Reid repeats in a letter to John Brennan informing him that the Senate Sergeant-at-Arms will conduct a forensic review of the SSCI computers.
You are no doubt aware of the grave and unprecedented concerns with regards to constitutional separation of powers this action raises.
The language Reid uses in a letter to Eric Holder is even stronger.
As Majority Leader of the Senate, I have a responsibility to protect the independence and effectiveness of our institution. The CIA’s decision to access the resources and work product of the legislative branch without permission is absolutely indefensible, regardless of the context. This action has serious separation of powers implications. It is immaterial whether this action was taken in response to concerns about the Committee’s possession of a disputed document; this stands as a categorically different and more serious breach.
In my capacity as the leader of the U.S. Senate, the CIA’s actions cause me great concern. The CIA has not only interfered with the lawful congressional oversight of its activities, but has also seemingly attempted to intimidate its overseers by subjecting them to criminal investigation. These developments strike at the heart of the constitutional separation of powers between the legislative and executive branches. Left unchallenged, they call into question Congress’s ability to carry out its core constitutional duties and risk the possibility of an unaccountable Intelligence Community run amok. The CIA cannot be permitted to undermine Congress’s ability to serve as an effective check on executive power as our nation’s Founders intended.
For all the talk of interbranch conflict, however, the letter to Brennan includes hints of partisan conflict. He asks Brennan to keep his staffers away from Senate staffers except the Sergeant-at-Arms.
To ensure its [the Sergeant-at-Arms review] independence, I ask that you take whatever steps necessary to ensure that CIA personnel refrain from further interaction relating to this issue with Senate staff other than the Segeant-at-Arms staff conducting the examination while the examination is underway.
This suggests there has been such contact. And there’s no reason to believe anyone from the Democratic side would be working back channel with Brennan’s spooks.
As I noted last week, the Republicans — especially Richard Burr, who would become Intelligence Chair if Republicans retake the Senate — have been going after Mark Udall aggressively. In the interim we’ve seen fairly obvious hit jobs that use the CIA-SSCI dispute to focus on Udall’s electoral prospects in November.
So while I believe everything Reid says about separation of powers — while I believe he regards this as an unprecedented threat to separation of powers — this also reeks of an attempt to prevent the collaboration of Republicans and the CIA.
We’ll see whether it has the other probable goal: giving DOJ an easy way to back out of any entanglement in this dispute.
The argument is actually fairly crafty. He acknowledges he probably will “question [the Report's] merits” once it comes out.
I don’t know what’s in the report, and I wasn’t approached during its preparation. I can only guess that I would be among those who question its merits once it enters the public domain.
Given that he effectively admitted to Steven Colbert back in September, above, he was responsible for inserting the tortured claim from Ibn Sheikh al-Libi that Iraq had ties to al Qaeda, and given that he left government after being denied a promotion because his analysts pushed for more torture [correction from Nada Bakos: the claim his analysts pushed for more torture floated when he retired is not accurate], what he likely means is that the Report is going to show very damning evidence about his actions.
But then Mudd appears to say nice things about democracy — as he did with Colbert.
This judgment, though, isn’t particularly relevant. In our system of checks and balances, there will often be times when overseers and officials from executive branch agencies don’t agree, and both parties have a right to speak on a matter that is of such interest to the public. We’re in a finger-pointing Beltway battle between two entities nobody much trusts. Let the people sort it out, after they see what both sides say; let the public decide where the pendulum rests.
There are key points that might get lost in this ugly rumble. Primary among them is the quality of the Senate report, which the CIA evidently argues is profoundly flawed and therefore misleading. This may well be true, but it’s not clear it should stand in the way of the report’s release. The agency has its perspective; the overseers have theirs.
Time the release of the Senate report to coincide with the release of a CIA rebuttal. Give both sides their say, and then let the public weigh in. [my emphasis]
But in fact, Mudd’s defense of democracy — let the people sort it out! — is instead an appeal for a relativism in which there is no truth, only competing truths. Mudd suggests that since both sides get to have their say, we’ll come to an adequate outcome.
Of course, Mudd is full of shit on this point. FIrst, because Mudd, a torture defender, has for years been permitted by CIA to go on TV and write Daily Beast columns. He and other torturers have had opportunity to give uncontested rebuttals for years, even with the help of Hollywood. CIA’s torture critics, however, have been and even still are getting ominous warnings not to talk to the press. We’ve had 5 years in which only the torture fans get to defend torture, and that’s what Mudd considers a fair fight.
But also because while John Brennan’s CIA may argue the report is flawed, whoever drafted the Panetta Report actually agreed with the Senate Report. Let’s have that report as CIA’s rebuttal, what say you, Mudd?
The “CIA” doesn’t think the report was flawed; the CIA’s institutional defenders do.
Then, couched in another apparent nod to democracy, Mudd suggests that torture was useful.
Do Americans, and their representatives in lawmaking bodies, want their security services to interrogate prisoners using these tactics? Do they believe these tactics represent American values?
If the answer is “no,” the question of whether the tactics are successful becomes moot. Let’s assume, for the moment, that we all accepted as fact that the tactics were hugely successful in eliciting valuable intelligence. Would this then change the argument? I hope not: If you want to judge that these programs aren’t appropriate for a democratic society, that judgment shouldn’t come with a sliding scale. So why waste time on the question of the program’s utility? Why pretend that the answer would sway those who believe America should never again return to the tactics the CIA used?
As an intelligence officer who was at the CIA’s Counterterrorist Center during the early 2000s, and was once its deputy director, my views of this debate are not complex, and they won’t be changed by this report. The al Qaeda prisoners we held at CIA facilities helped us understand the adversary. A lot? A little? Somewhere in between? Outside observers can debate it, but it’s hard to argue that sitting across from the most senior leaders of your adversary, over a long period of time, isn’t helpful to understanding how they think and act. It is.
This judgment, though, is as irrelevant today as it will be the day this Senate report appears in public.
One of America’s top analysts lays out the defense for torture efficacy this way:
“Sitting across from the most senior leaders of your adversary [is] helpful to understanding how they think and act.”
Torture is useful.
This is what CIA considers crack analysis!!!! It’s useful to sit down with Khalid Sheikh Mohammed, and therefore it was useful to waterboard him 183 times!!!
Apparently one of CIA’s former top analysts doesn’t understand that one can sit down with someone — the FBi had a pretty good track record at doing this — without engaging in medieval torture first. This former top analyst feigns not understanding that “sitting across from” someone is different from “pretending you’re drowning” someone over and over and over and over.
Maybe instead of releasing the report we should just let CIA’s torturers continue to expose just how stupid they really are (or pretend to be). Because while Mudd’s pre-rebuttal was meant to sound all democratic and whatnot, when you look closely it just exposes the stupidity of those who defend torture.
Update: I’ve changed the title of this to match exactly how Mudd characterized the sitting with KSM.
I wanted to return to one other detail of John Brennan’s (designed to be made public, I believe) January 27 letter to Dianne Feinstein explaining the urgent need to continue the “investigative, protective, or intelligence activity” targeted at CIA’s overseers.
In the letter, Brennan describes the original basis for CIA’s claimed suspicion into SSCI this way:
CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and review audit data to determine whether anyone had access the files. [my emphasis]
The original basis CIA used to justify investigating their overseers was a log purportedly recording which documents they had been given.
Recall that CIA worked with contractors — SAIC, as I understand it — to review and re-review each document before they turned it over to SSCI.
CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff.
This process accounts for much of the $44 million cost of the report.
The log must have come out of this process: contractors, being paid handsomely by the CIA to slow the investigation, recording each document that they claimed to hand over to investigators.
So at the base of Brennan’s claim is a log, made by self-interested contractors employed by CIA, about torture.
The CIA’s contractors don’t have a very reliable history recording issues relating to torture.
Recall that — contrary to much of the public reporting on the matter — the destruction of the torture tapes did not just destroy ugly images of torture inflicted on Abu Zubaydah.
In addition, by destroying the torture tapes, CIA destroyed evidence that:
That is, one of the likely reasons why CIA destroyed the torture tapes is that their handsomely paid self-interested contractors produced a substantively inaccurate log about torture.
And at the base of the CIA’s witch hunt into SSCI staffers is a log about torture presumably made by handsomely paid self-interested contractors.
Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.
I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”
It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy. The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:
Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;
I believe that the CIA Director delegates this duty to the CIA General Counsel.
Note how low the bar is for the referral—possible violations of federal law. Think about what that low standard means. It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law. As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.” It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]
But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,
The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).
In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”
Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?
But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.
In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
There’s a lot to be said about John Brennan’s appearance at the Council on Foreign Relations today (video here). I’m actually most interested in Brennan’s refusal, twice, to answer questions about whether the NSA needs to engage in bulk collection.
QUESTION: Good morning. Tom Risen with U.S. News and World Report. I’d like to follow up on some — talk about the intelligence gaps. Edward Snowden, yesterday, said that he’s accused the NSA’s mass surveillance of distracting from pinpointed, credible threats. Do you think from where you sit that there’s been any intelligence gaps in the NSA or the CIA on how they could conduct monitoring or spying better?
BRENNAN: Well, you know, anybody who violates their oath in terms of protecting sensitive classified information really has done a great disservice not just to the country, but also has put the American people at harm. NSA, CIA, and others now are looking at what it is that we need to do to mitigate whatever types of — of gaps that we might now face as a result of — of disclosures, publicly.
So we are trying to stay ahead of the challenge, do what we can, both in the HUMINT and SIGINT, as well as other fronts, working very closely with our intelligence partners. But, you know, distractions, you know, do take away from our focus on the — the substantive functional issues that really deserve our full attention.
MITCHELL: And can you [keep our country safe] without the mass collection of metadata?
BRENNAN: You know, there — there are a lot of challenges as that digital domain has changed. You know, you ask five people what metadata means, you know, they’ll have probably five different explanations. Probably three or four of them are going to be totally off the mark. Metadata itself is changing. You know, content, bulk data collection, these are things that, you know, really, you know, challenge the mind as far as, how are you going to ensure that if there is a terrorist in this country and he’s determined to do harm with, you know, a conventional explosive or a, you know, biological or chemical weapon, how are you going to be able to operate at the speed of light so that if you get intelligence you find out where that person is? You know, as I said, memories of 9/11, I think, recede in the smoldering ashes on the Manhattan landscape. [my emphasis]
Brennan first responds to Snowden’s claim by attacking his person, without addressing his claim. He then babbles about the challenge of thinking of bulk data. “Content, bulk data collection, these are things that, you know, really, you know, challenge the mind.” Which is a not very graceful way to dodge the question. But he doesn’t answer the question either time.
Most reporters, however, are focusing on Brennan’s prevarications in response to Dianne Feinstein’s statement today.
Well, first of all, we are not in any way, shape or form trying to thwart this report’s progression, release. As I said in my remarks, we want this behind us. We know that the committee has invested a lot of time, money and effort into this report, and I know that they’re determined to put it forward.
We have engaged with them extensively over the last year. We have had officers sit down with them and go over their report and point out where we believe there are factual errors or errors in judgment or assessments. So we are not trying at all to prevent its release.
As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean, we wouldn’t do that. I mean, that’s — that’s just beyond the — you know, the scope of reason in terms of what we would do.
This review that was done by the committee was done at a facility where CIA had a responsibility to make sure that they had the computer wherewithal in order to carry out their responsibilities, and so if there was any inappropriate actions that were taken related to that review, either by CIA or by the SSCI staff, I’ll be the first one to say we need to get to the bottom of it.
And if I did something wrong, I will go to the president, and I will explain to him exactly what I did, and what the findings were. And he is the one who can ask me to stay or to go.
Golly! We would never do any such thing as spy! And even if we get caught, only the President can make me leave, not the Committee.
But I’m most excited that Brennan chose to troll yours truly to introduce his talk.
Now just over a year ago, I had the privilege of placing my hand on the very first printed copy of the Constitution, a draft edited and annotated personally by George Washington himself that is one of the most treasured items held in the National Archives. With my hand on that document, Vice President Biden swore me in as the director of the Central Intelligence Agency.
I chose to take my oath on that precious piece of history as a clear affirmation of what the Constitution means to all of us at the agency. We have no higher duty than to uphold and defend the rule of law as we strive every day to protect our fellow citizens. Like so many things involving, CIA, though, people read nefarious intentions into my decision to take my oath on an early draft of the Constitution that did not contain the Bill of Rights, our Constitution’s first 10 amendments.
So at the risk of disappointing any conspiracy theorists who might be here today, let me assure all of you that I, along with my CIA colleagues, firmly believe in and honor not only the Constitution, but also the Bill of Rights, as well as all subsequent amendments to our Constitution. I just happen to be guilt of being an ardent admirer of George Washington and of the historical foundations of this great country. [my emphasis]
You’ll recall that I was among the first to point out that John Brennan staged a photo op at his swearing in, and either botched the photo op or unveiled his real beliefs, because he swore to protect and defend a Constitution that includes no First or Fourth Amendment.
Take that Dianne Feinstein! You may have accused John Brennan of violating Articles I, II, and III today. But Brennan’s still responding to me busting him for violating the First and Fourth Amendment.