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Two of Obama’s Independent Intelligence Advisors Have Supported Oversight in Past; Why Not Now?

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I’ve written recently about Obama’s refusal to appoint anyone to the Privacy and Civil Liberties Oversight Board, which is supposed to ensure the government protects privacy while laying out a dragnet to catch terrorists, most recently when Thomas Kean and Lee Hamilton issued their 10-year report card on the 9/11 Commission’s recommendations. And I wrote about Bush’s efforts to bypass the intelligence oversight that is supposed to be exercised by the Intelligence Oversight Board by simply eliminating the part of the Presidential Foreign Intelligence Advisory Board that did that oversight, the IOB.

But it seems Obama has ensured–as he has with PCLOB–that IOB can’t do its job. Or at least that’s the appearance from the government’s stone-walling on information about the board.

The Electronic Frontier Foundation has been trying to see whether Obama has fulfilled his promise to restore the IOB to functionality by FOIAing who is on it and what they’ve been doing (and whether they’ve been ignoring the National Security Letters the Army has been sending out).Thus far, the government has denied their FOIA.

The IOB is supposed to alert the president and attorney general when it spots behavior that is unlawful or contrary to executive order. However, in his nearly three years in office, President Obama has not yet announced any appointments to the IOB. EFF’s suit comes after the ODNI refused to respond to a Freedom of Information Act (FOIA) request for membership, vacancies, and other information about the IOB made earlier this year.

“The IOB has a critically important mission – civilian oversight of America’s intelligence activities. The board exists to make sure government agencies are not overstepping their authority and abusing citizens’ rights,” said EFF Open Government Legal Fellow Mark Rumold. “History has shown that intelligence agencies overseeing their own behavior is like the fox guarding the henhouse. If the IOB is ineffective, impaired, or short-staffed, that’s information Americans need to know.”

So now they’re suing to get that information.

But there’s something else weird about Obama’s stone-walling here. Here’s the list of people Obama has appointed to the President’s Intelligence Advisory Board, the board that oversees the IOB.

  • Chuck Hagel (10/28/2009)
  • David Boren (10/28/2009)
  • Roel Campos (12/23/2009)
  • Lee Hamilton (12/23/2009)
  • Rita Hauser (12/23/2009)
  • Paul Kaminski (12/23/2009)
  • Ellen Laipson (12/23/2009)
  • Les Lyles (12/23/2009)
  • Jami Miscik (12/23/2009)
  • Richard Danzig (12/1/2010)
  • Daniel Meltzer (12/1/2010)
  • Thomas Wheeler (4/17/2011)
  • Mona Sutphen (9/6/2011)
  • Phillip Zelikow (9/6/2011)

You know, Lee Hamilton, the 9/11 Commission Chair who just weeks ago was nagging the Administration that, “there should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.” And Phillip Zelikow, who wasn’t involved in the anniversary nagging, but who was involved in the original recommendation? (FWIW, Chuck Hagel voted for PCLOB as part of the larger counterterrorism reform package of which it was a part.)

These men obviously think (or at least used to think) our intelligence community needs some oversight. I realize PCLOB isn’t the same thing as IOB (as originally conceived and even as statutorily defined PCLOB was supposed to be stronger in some ways than IOB, though it was targeted at privacy, not intelligence violations). So why not push for oversight designated to be a part of the board on which they serve?

Seven years ago, Hamilton and Zelikow signed off on the this language:

[W]hile protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right.

This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.

Right now, even as Hamilton and Zelikow serve as Obama’s handpicked independent intelligence advisors, the checks and balances on our intelligence system are actually worse than when they signed off on those words. They may not be able to do anything about EFF’s FOIA to learn what has become of the IOB. But it’d be nice if they used their advisory position to implement checks and balances more generally on the intelligence community.

10 Years Later, 9/11 Commission Says President Is Failing to Protect Civil Liberties

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The 9/11 Commission released a 10-year report card on the recommendations they made back in 2004. And one of three recommendations that remains entirely unfulfilled–the only one that is entirely the responsibility of the executive branch–is implementing a board to defend civil liberties.

“[T]here should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.”

An array of security-related policies and programs present significant privacy and civil liberty concerns. In particular, as the FBI and the rest of the intelligence community have dramatically expanded their surveillance of potential terrorists, they have used tools such as National Security Letters that may implicate the privacy of Americans. Privacy protections are also important in cyber security where the government must work with the private sector to prevent attacks that could disrupt information technology systems and critical infrastructure. The same Internet that contains private correspondence and personal information can also be used as a conduit for devastating cyber attacks.

To ensure that privacy and liberty concerns are addressed, the 9/11 Commission recommended creating a Privacy and Civil Liberties Oversight Board to monitor actions across the government. Congress and the president enacted legislation to establish this Board but it has, in fact, been dormant for more than three years.

Describing the PCLOB as “dormant” is actually a huge favor to Obama. It only suggests, but does not make explicit, that before the end of his Administration Bush actually got around to rolling out the PCLOB–evenven if it was so compromised by executive branch control that Lanny Davis felt obliged to resign.

But Obama has avoided even that much oversight by simply letting the PCLOB go unfilled for his entire Presidency. As the report card explains, Obama finally got around to making nominations after Democrats lost the numbers in the Senate to approve his nominees (though one was the Michael Mukasey Assistant Attorney General who rolled out greater investigative powers for the FBI). And even if those two were by some freakish even confirmed, PCLOB would still be short a quorum to do any work.

The Obama administration recently nominated two members for the Board, but they have not yet been confirmed by the Senate. We take the administration at its word that this Board is important: in its May 2009 review of cyber security policy, the administration noted the Board’s importance for evaluating cyber security policies. We urge the president to appoint individuals for the remaining three positions on the board, including the chairman, immediately, and for the Senate to evaluate their nominations expeditiously.

[snip]

If we were issuing grades, the implementation of this recommendation would receive a failing mark. A robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties.

PCLOB is an entity mandated by law. But the President refuses to comply with that law to provide for some oversight over civil liberties, no matter how inadequate.

It’s not me accusing Obama of failure on this point–it’s a bipartisan commission primarily concerned with the national security of the country. But they are, in fact, calling him a failure.

Another Possibility with Mukasey’s 9/11 Story

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While we’re talking about Mukasey’s claim that Bush could have prevent 9/11 and didn’t, I want to raise one more possibility. Mukasey’s story, remember, is that the US had noted a phone call from an Afghan safe house to somewhere in the US–but the US couldn’t track the call because didn’t know where the phone call went.

And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went."

Glenn Greenwald (who has been flogging this issue heroically), reviews the 9/11 Commission report and concludes that such an intercept didn’t happen.

Critically, the 9/11 Commission Report — intended to be a comprehensive account of all relevant pre-9/11 activities — makes no mention whatsoever of the episode Mukasey described. What has been long publicly reported in great detail are multiple calls that were made between a global communications hub in Yemen and the U.S. — calls which the NSA did intercept without warrants (because, contrary to Mukasey’s lie, FISA does not and never did require a warrant for eavesdropping on foreign targets) but which, for some unknown reason, the NSA failed to share with the FBI and other agencies. But the critical pre-9/11 episode Mukasey described last week is nowhere to be found in the 9/11 Report or anywhere else. It just does not exist. [emphasis Glenn’s]

And Glenn is not alone. Chairman Conyers says he doesn’t know anything about it.

And Philip Zelikow says he doesn’t know what Mukasey is talking about.

Not sure of course what the AG had in mind, although the most important signals intelligence leads related to our report — that related to the Hazmi-Mihdhar issues of January 2000 or to al Qaeda activities or transits connected to Iran — was not of this character. If, as he says, the USG didn’t know where the call went in the US, neither did we. So unless we had some reason to link this information to the 9/11 story ….

In general, as with several covert action issues for instance, the Commission sought (and succeeded) in publishing details about sensitive intelligence matters where the details were material to the investigative mandate in our law.

Read more →

9/11 Commission Decries Obstruction

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Thomas Kean and Lee Hamilton must have been waiting all holiday long to launch this grenade against the Administration just as Congress returns and the torture tape inquiry heats up.

MORE than five years ago, Congress and President Bush created the 9/11 commission.

[snip]

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

The op-ed goes on to lay out the key details included in Zelikow’s memo, the chronology of dates when the 9/11 Commission asked for interrogation records that would have included the torture tapes the CIA later went on to destroy. Of note, Kean and Hamilton clearly include the White House among those who obstructed the Commission’s work.

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

I’ll be curious to see whether and how Kean and Hamilton can ratchet up attention on this issue. Unlike the several judges who were ignored in their requests regarding the tapes, Kean and Hamilton are in a position to really hammer this issue. And unlike Congress (who appears to have been lied to about matters depicted in the tapes), Kean and Hamilton seem willing to call obstruction obstruction. They do acknowledge that they aren’t the ones who will get to investigate the torture tape destruction.

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

But it’s probably worth noting that they’re launching this grenade from Mukasey’s home town.

Timing, Again

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Marty Lederman points out that today’s NYT story clarifies one of the issues I’ve been trying to pinpoint on timing.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes — which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission sought "documents," "reports" and "information" related to the interrogations from the CIA — but "staff members never specifically asked for interrogation videos."

[snip]

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson.

Then, as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain). Read more →