John Kiriakou

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

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.

John Kiriakou’s Prosecution Is an Important Precedent to CIA – Senate Intelligence Committee Spat

On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.

The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.

Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.

The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”

A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.

U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.

The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.

[snip]

If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.

[snip]

If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?

Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.

Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)

But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

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Operation Stall

McClatchy has now posted an update to the tale of the CIA-SSCI spat.

It appears the following happened: Sometime around August, SSCI staffers working on a database at CIA discovered the internal CIA report, started under Leon Panetta, that corroborated the SSCI report. It also contradicted CIA’s official response to the SSCI Report.

Several months after the CIA submitted its official response to the committee report, aides discovered in the database of top-secret documents at CIA headquarters a draft of an internal review ordered by former CIA Director Leon Panetta of the materials released to the panel, said the knowledgeable person.

So having discovered even the CIA disagreed with the CIA’s response, the SSCI staffers took a copy with them.

They determined that it showed that the CIA leadership disputed report findings which they knew were corroborated by the so-called Panetta review, said the knowledgeable person.

The aides printed the material, walked out of CIA headquarters with it and took it to Capitol Hill, said the knowledgeable person.

Mark Udall raised the report in a December hearing. In January, CIA accused SSCI of absconding with the document.

After the CIA confronted the panel in January about the removal of the material last fall, panel staff concluded that the agency had monitored computers that they’d been given to use in a high-security research room at the CIA campus in Langley, Va., a McClatchy investigation found.

In response, the CIA asked DOJ to start an investigation.

Then there’s this weird question about the document. I’m not sure whether the issue is how the document first got included in the database at CIA, or whether it’s how it migrated to SSCI.

White House officials have held at least one closed-door meeting with committee members about the monitoring and the removal of the documents, said the first knowledgeable person.

The White House officials were trying to determine how the materials that were taken from CIA headquarters found their way into a data base into which millions of pages of top-secret reports, emails and other documents were made available to panel staff after being vetted by CIA officials and contractors, said the knowledgeable person.

My favorite part of this passage, though, is that contractors are helping choose with documents CIA’s overseers are allowed to see.

Because contractors should surely have more visibility into what the CIA does than CIA’s overseers, right?

All of which is to say the SSCI busted the CIA for lying in their official response to the Committee. And as a result, CIA decided to start accusing the Committee of breaking the law. And now everyone is being called into the Principal’s office for spankings.

This reminds me of what happened when Gitmo defense lawyers tried to independently identify the identities of their clients torturers. The lawyers got too close to the torturers, which set off a process that ultimately led to John Kiriakou, as the sacrificial lamb, going to jail.

But it seems that this is part of a larger CIA effort to stall. As McClatchy notes, CIA took 3 extra months to provide their initial response to SSCI. Then this erupted 2 months later. It has now been almost 3 months since Udall first revealed the existence of the Panetta report. Which brings us just 8 months away from an election in which the Democrats stand a good chance of losing the Senate, and with it, the majority on the Committee that might vote to declassify the report in defiance of CIA’s wishes. Which may be why Saxby Chambliss is fanning the CiA’s flames for them.

“I have no comment. You should talk to those folks that are giving away classified information and get their opinion,” Intelligence Committee Vice Chairman Saxby Chambliss (R-Ga.) said when asked about the alleged intrusions.

Stall, stall, stall. It’s what CIA did with the OPR report, it’s what they did with the torture tape investigation, and now this.

CIA may well suck at doing their job — getting intelligence that is useful to the country. But they sure are experts at outlasting any oversight onto their real activities.

BREAKING: CIA Admits to SSCI Millions of Its Official Records Are Badly Inaccurate

As I noted in this post, today John Brennan will try to convince Dianne Feinstein and Saxby Chambliss that their (well, really McCain and the Democrats’) 6,000 page report documenting that torture didn’t work and CIA lied to Congress (and the White House and DOJ and the public) about it not working.

Here’s the basis on which Brennan will stake his claim that SSCI’s report is wrong.

The CIA report catalogues errors that teams of agency analysts found in the committee’s research. It also questions the panel’s methodology, noting that the committee collected millions of internal CIA cables and other documents on the interrogation program, but it did not interview anyone directly involved.

Never mind that the CIA chose not to make its officials available to the committee. Never mind that John Kiriakou made it clear that the cables describing Abu Zubaydah’s torture, at least, both downplayed the number of times he had been waterboarded and exaggerated how effectively it worked.

The CIA will make the case that if you were to read millions of their cables recording their intelligence programs, you would have a grossly distorted understanding of those programs. CIA will make the case that nothing true they do is written down.

Or something like that.

Now, there’s abundant evidence the conclusions of the SSCI report are actually correct, no matter what torturers would say if asked.

But I do think it ought to raise at least as many concerns to be told that the millions of CIA cables and other documentation SSCI read doesn’t convey the truth about what CIA is doing.

Hell, I think John Brennan just made the case that the lawyers for Gitmo detainees who were held by the CIA need to interview all of the CIA personnel in person.

Leon Panetta: Sheep Dipping Secrets

POGO has a story that adds a new twist to an old story.

The old story is Leon Panetta, leaking classified info, in this case, leaking info on the Osama bin Laden raid to a Zero Dark Thirty executive.

In June 2011, when he was director of the Central Intelligence Agency, Panetta discussed the information at a CIA headquarters event honoring participants in the raid that killed Osama bin Laden, according to an unreleased report drafted by the Inspector General’s office and obtained by the Project On Government Oversight (POGO).

“During this awards ceremony, Director Panetta specifically recognized the unit that conducted the raid and identified the ground commander by name,” the draft report says.  “According to the DoD Office of Security Review, the individual’s name is protected from public release” under federal law, the report says.

“Director Panetta also provided DoD information, identified by relevant Original Classification Authorities as TOP SECRET//SI//REL TO USA, AUS, CAN, GBR, NZL, as well as, SECRET/ACCM,” the report says.

This is the investigation Peter King requested in 2011.

The new, but predictable, twist, is that when DOD’s Inspector General tried to investigate this, it apparently got no cooperation from Panetta himself, who had subsequently moved over to head DOD itself. More importantly, the IG stalled the report, apparently until Panetta retired.

The unknown fate of the IG report was the subject of a December 2012 email exchange—obtained by POGO—between a congressional staff member and an employee in the IG’s office.  The congressional aide mentions having heard that someone in the IG’s office was “sitting on it until Secretary Panetta retires” and asks the IG employee for any information about it.

The IG employee replies:  “That effort . . . has been controlled and manipulated since inception by the IG Front Office.”  The employee adds:  “There is a version ready to hit the street, been long time ready to hit the street…but we will see if that happens anytime soon.  Highly unusual tight controls and tactical involvement from senior leadership on this project.”

The employee says the matter reflects broader problems within the IG’s office.

“I have grave concerns that the message and findings are now controlled and subject to undue influence across the board at DoD IG.  I have never experienced or seen so much influence or involvement by outsiders now in developing and issuing oversight reports.”

The IG employee invokes whistleblower status.

“I consider this protected communications on alleged wrong-doings within the Government.”

While it doesn’t say so directly, POGO suggests the Obama Administration may have pulled this off by withholding the nomination for the Acting Inspector General to become its permanent IG.

The Defense Department IG’s job has been vacant since December 2011, and the office has been headed on a temporary basis by Lynne M. Halbrooks, who is now the principal deputy inspector general. She has sought support to be named permanent inspector general, a presidential appointment that traditionally involves the approval of the secretary.

In short, Panetta exposed a classified identity to a movie maker, as well as SIGINT pertaining to the Osama bin Laden raid (perhaps reports on the intercepts the government used to identify the courier?). But rather than being treated like John Kiriakou, for example, Panetta got moved into a position to prevent any release of this information.

The term “sheep dip” has been adopted to refer to the practice of having Special Forces operate under CIA guise, as they did on this OBL raid, to operate under CIA’s covert authorities. It turns out the institutional shell game with the OBL raid served not to keep secrets, nor even to sustain deniability from the Pakistanis (particularly after Panetta identified Shakeel Afridi), but rather to allow the Administration to treat this covert operation just like they do covert operations like drones (Joby Warrick’s book, The Triple Agent, includes a lot on drones that obviously comes from Panetta’s office too), to make them selectively public.

John Brennan’s Kangaroo Court

Congratulations to Barack Obama, whose invisible hand censor has made Gitmo even more of a kangaroo court than it was under Bush.

As Jim laid out, over the last two days of Gitmo hearings, we saw (thanks to livetweeters like Carol Rosenberg, Jason Leopold, and Daphne Eviatar) someone improperly cut the feed from the court room to the journalists for 3 minutes, just as Khalid Sheikh Mohammed’s lawyer, David Nevin, started to read from his unclassified motion to preserve the black sites. After it happened, Judge James Pohl was rather angry about what he saw as an improper use of the censorship system. Today, it became clear that the OCA–the original classification authority–pressed the censor button, via some AV means that Judge Pohl either didn’t fully understand or want to discuss.

In other words, CIA has ultimate control over his court room.

For the last day, I’ve been predicting that Moral Rectitude Transparency and Assassination Czar John Brennan was responsible for the improper censorship. It was almost certainly some CIA minion Brennan will manage not long after his February 7 confirmation hearing rather than Brennan himself. Though remember–the legal record indicates that the National Security Council, and not CIA, asked to have torture made into a Special Access Program in the first place, though before most of the 9/11 detainees being tried were tortured (the exception, I think, is Ramzi bin al-Shibh). So either John Brennan in his guise as Obama’s NSC counterterrorism advisor or his rising CIA Director–ultimately, it was his portfolio censorsing unclassified information in the trial.

But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.

And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.

We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.

CIA’s Torturers Get Their Scalp

With the news that John Kiriakou will head to prison for 30 months, it’s worth remembering how he got sent there.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

The CIA has succeeded in making an object lesson of a man who betrayed their omerta.

OK, But Can We Also Fire Lanny Breuer?

I’ve lost count of how many White House petitions are seeking some kind of vengeance for the harsh treatment of Aaron Swartz. Fire Carmen Ortiz. Fire Stephen Heymann. Pardon Swartz. Commute John Kiriakou’s sentence.

One of the most ethical suggestions I’ve seen (and I’m not even sure if there is a White House petition for it) is to fix the Computer Fraud and Abuse Act. [Update: Thanks to Saul Tannenbaum, here it is.]

The government should never have thrown the book at Aaron for accessing MIT’s network and downloading scholarly research. However, some extremely problematic elements of the law made it possible. We can trace some of those issues to the U.S. criminal justice system as an institution, and I suspect others will write about that in the coming days. But Aaron’s tragedy also shines a spotlight on a couple of profound flaws of the Computer Fraud and Abuse Act in particular and gives us an opportunity to think about how to address them.

I didn’t know Aaron personally, but he doesn’t strike me as the kind of guy who would seek individualized solutions to systemic problems. And one of the problems with the system that destroyed him is a law that badly criminalizes actions that don’t present much harm.

Moreover, as Corey Robin argues in this post, asking Obama to take action to absolve the actions of his own government defeats the point.

Asking the state to pardon Swartz doubly empowers and exonerates the state. It cedes to the state the power to declare who is righteous and who is wrong (and thereby obscures the fact that it is the state that is the wrongful actor in this case). The petitioning language to Obama only adds to this. The statement depicts Obama as somehow the good father who stands above the fray—much like how the Tsar was depicted in the petition of the Russian workers who marched with Father Gapon on the Winter Palace in 1905 and were summarily slaughtered.

Pardoning Swartz also would allow the government, effectively, to pardon itself.

These petitions seem to serve the purpose of pretending that Swartz’ treatment was abnormal.

It was not.

Not only has Obama’s Administration treated all those who liberate information without his government’s sanction as dangerous criminals, but his DOJ has been ruthless against just about everyone who is not a Wall Street Executive.

Jesslyn Radack–who knows how aggressively Obama’s DOJ has targeted those who free information as well as anyone–discusses the legal futility of trying to go after Stephen Heymann. But she also notes that the real remedy to prevent more people from experiencing what Swartz did is to start fixing DOJ.

What might be more realistic is for citizens to demand that the Senate Judiciary Committee exercise meaningful oversight over the out-of-control Justice Department, which has waged an unprecedented, unaccountable, brutal war on whistleblowers and hackers, and to create something akin to the Church Committee to investigate the improper monitoring and targeting of hackers, whistleblowers, Occupy participants, journalists, and a numerous other groups of non-violent “offenders” who’ve done nothing to harm anyone or the country, and have been acting purely in the public interest.

It would be a good start (though SJC Chairman Patrick Leahy has been lax in examining any Obama Administrations abuses).

But there is one action Obama could take today that would both address some of the problems with his dysfunctional DOJ and attest he means to change things systematically: Fire DOJ’s Criminal Division head, Lanny Breuer.

Lanny Breuer is not the only reason Obama’s DOJ has been so aggressive (though he has been instrumental in ensuring it ignores bank crimes). There are far more senior and far less senior people who have fostered DOJ’s overreach. But Breuer runs this system. Moreover, as the head of this system of prosecutorial overreach, he has actually explicitly rewarded abuse.

If we want to fix the injustice that was done to Aaron Swartz, we need to fix the aspects of the system that rewarded such behavior. We need to fix the law that empowered the prosecutors gunning for him. We need to put some breaks on DOJ’s power. And we should start by getting rid of the guy who has fostered this culture of abuse for the last four years.

Will NYT’s Ombud Encourage a NYT Pre-Sentencing Memo for Bradley Manning, Too?

When I first read Scott Shane’s long profile of John Kiriakou, I thought, “how interesting that the NYT is doing a piece that exposes the government’s double standards just in time for the sentencing of Kiriakou, one of their sources.”

That’s not to say I’m not glad to see the piece: the profile did more to raise the scandal of Kiriakou’s prosecution than just about anything short of a 60 Minutes piece might.

And I’m much less interested in Shane’s references to his own role in Kiriakou’s indictment

Mr. Kiriakou first stumbled into the public limelight by speaking out about waterboarding on television in 2007, quickly becoming a source for national security journalists, including this reporter, who turned up in Mr. Kiriakou’s indictment last year as Journalist B.

[snip]

After Mr. Kiriakou first appeared on ABC, talking with Brian Ross in some detail about waterboarding, many Washington reporters sought him out. I was among them. He was the first C.I.A. officer to speak about the procedure, considered a notorious torture method since the Inquisition but declared legal by the Justice Department in secret opinions that were later withdrawn.

Then I am by this passage.

In 2008, when I began working on an article about the interrogation of Khalid Shaikh Mohammed, I asked him about an interrogator whose name I had heard: Deuce Martinez. He said that they had worked together to catch Abu Zubaydah, and that he would be a great source on Mr. Mohammed, the architect of the Sept. 11 attacks.

He was able to dig up the business card Mr. Martinez had given him with contact information at Mitchell Jessen and Associates, the C.I.A. contractor that helped devise the interrogation program and Mr. Martinez’s new employer.

Mr. Martinez, an analyst by training, was retired and had never served under cover; that is, he had never posed as a diplomat or a businessman while overseas. He had placed his home address, his personal e-mail address, his job as an intelligence officer and other personal details on a public Web site for the use of students at his alma mater. Abu Zubaydah had been captured six years earlier, Mr. Mohammed five years earlier; their stories were far from secret. [my emphasis]

As I have mapped out before, the indictment strongly suggests that Kiriakou was Shane’s source for Martinez’ phone number, and with that suggestion, implies that Shane got Martinez’ identity from Kiriakou rather than one of the 23 other sources he had for the article.

With this passage, Shane rebuts what would have been a key point at trial (and may help Kiriakou in his sentencing). At least according to Shane, he not only learned of Martinez’ identity before he asked Kiriakou about it, but was able to find Martinez’ home address and email on an alumni network site. (Note, Shane doesn’t address whether Kiriakou was the source for the “magic box” technology discussed in the article, about which Kiriakou was also alleged to have lied to CIA’s Publication Review Board.)

In short, the whole article serves as a narrative pre-sentencing memo, offering a range of reasons why Kiriakou should get less than the 30 months his plea deal currently recommends.

Continue reading

Blabby Brennan to Replace Publicity Petraeus at CIA?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But hey. We knew that.

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

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

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

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

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

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

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

Emptywheel Twitterverse
emptywheel @richardSFO True. Tho not sure if you saw him w/Execs fr Comcast and TW. Pretty great at hammering them on lies abt merger.
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emptywheel Of a book that starts lying at word 64, http://t.co/YfPsXVeVpN @benjaminwittes says, "Rizzo is just being honest." http://t.co/b3JtB1eSdo
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bmaz @LegallyErin Hang in there!
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bmaz @arcsine Yes, that is how I read it too; which, considering how they communicate, makes sense. @MichaelKelleyBI
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bmaz @MichaelKelleyBI Think DB article very disingenuously constructed+ that you have no way of supporting your claim short of rank supposition
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bmaz @adamsteinbaugh Good grief, good way to exacerbate the initial pain.
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bmaz @MichaelKelleyBI Good of you to assign who they are with no evidence.
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bmaz @Ali_Gharib Them "helping him craft the question" is not in there. @MichaelKelleyBI just pulled that out of vapor @NoahShachtman @benwizner
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bmaz @Ali_Gharib Other than that it is disingenuous+unsupported for @MichaelKelleyBI tonasser they contributed. @NoahShachtman @benwizner
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bmaz @ammartin33 Agree has been some degree of a shift. But think the Danger Room guys always went out of their way to stay close to govt sources
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bmaz @kgosztola @thedailybeast Exactly. That said, looks to me like DB+Schachtman puffed the hell out of what was said.
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