I’m at a great conference on national security and civil liberties. Unfortunately, speakers have repeatedly claimed that NSA fully informs Congress on its programs.
Even setting aside Dianne Feinstein’s admission that the intelligence committees exercise less oversight over programs conducted under EO 12333, there are a number of public documents that show the Executive failing to fully inform Congress:
April 27, 2005: Alberto Gonzales and Robert Mueller brief SSCI on PATRIOT Authorities in advance of reauthorization. They make no mention of the use of PR/TT to gather Internet metadata, much less the violations of Colleen Kollar-Kotelly limits on the kind of data collected during the first period of its use.
October 21, 2009: A Michael Leiter and NSA Associate Deputy Director briefing to the House Intelligence Committee pointed to the September 3, 2009 phone dragnet reauthorization as proof that NSA had regained FISC’s confidence, without mentioning further violations on September 21 and 23 — violations that NSA did not inform FISC about.
August 16, 2010: DOJ did not provide the Intelligence and Judiciary Committees with some of the pre-July 10, 2008 FISC rulings providing significant constructions of FISA pertaining to — at a minimum — Section 215 until after the first PATRIOT Reauthorization.
February 2, 2011: House Intelligence Chair Mike Rogers did not invite members of Congress to read the 2011 notice about the phone and Internet dragnets. Approximately 86 freshmen members — 65 of whom voted to reauthorize the PATRIOT Act, a sufficient number to tip the vote — had no opportunity to read that notice.
May 13, 2011: In a briefing by Robert Mueller and Valerie Caproni designed to substitute for the Executive’s notice to Congressmen about the phone and Internet dragnets, the following exchange took place.
Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?
A — To the FBI’s knowledge, those authorities have not been abused.
While the balance of the briefing remains redacted, this seems to suggest the FBI did not brief House Republicans about the dragnet violations.
September 1, 2011: NSA did not provide notice to the House Judiciary Committee about its testing of geolocation data under Section 215 until after the reauthorization of PATRIOT Act, in spite of the fact that it had been conducting such tests throughout the 2010 and 2011 debates on the PATRIOT Act.
In my apparent never-ending job of documenting all the lies, half truths, and misrepresentations the Intelligence Community has told Congress, I wanted to look at one more document from the chunk the I Con released last week: the briefing given the House Intelligence Committee on the phone dragnet on October 21, 2009, during the early part of the PATRIOT Act reauthorization debate. The briefing came three weeks after then-House Intelligence Chair Silvestre Reyes requested a document on the dragnet (which would end up being the notice provided to Congress).
Here’s the last entry in the October 21 briefing’s description of the efforts to fix the problems with the dragnet.
On September 3, 2009, after receiving extensive demonstrations and briefings regarding the BR FISA program, the FISC signed the Renewal Order for BR
FISA. The order, which will remain in effect through October 30, 2009, restores to NSA the authority to make Reasonable Articulable Suspicion (RAS) determinations as to whether specific telephone identifiers may be used as “seeds” for querying against the BR FISA metadata. The signing of the renewal order is viewed as an indication that NSA is regaining the Court’s confidence in its ability to safeguard US Person privacy while using BR FISA data for vital national security missions. [my emphasis]
That is, the NCTC and NSA claimed to HPSCI — one of two committees getting the most information on the phone dragnet — that “NSA is regaining the Court’s confidence in its ability to safeguard US Person privacy.”
But the September 3 reauthorization of the phone dragnet — the last interaction with FISC referenced in the briefing — was not the most recent event prior to this briefing.
The last event we know of, at least, came when, on September 21 and 23, Judge Reggie Walton — the judge who had been working through this process for 9 months and on September 3 had ordered NSA to restrict access to the phone dragnet data to those who had been specially trained for it — had a DOJ National Security Division attorney tell him, orally, of two “likely violations” of these orders. NSA employees were emailing results of phone dragnet queries around — had even set up an email list of 189 analysts — including to people who had not received the special training required by the Court.
The NSD attorney advised that NSD and NSA were investigating the foregoing incidents and expected to be in a position to submit a preliminary written notice to the Court in short order. As of the entry of this Order, the Court has not yet received such a notice.
The Court is deeply troubled by the incidents described above, which have occurred only a few weeks following the completion of an “end to end review” by the government of NSA’s procedures and processes for handling the BR metadata, and its submission of a report intended to assure the Court that NSA had addressed and corrected the issues giving rise to the history of serious and widespread compliance problems in this matter and had taken the necessary steps to ensure compliance with the Court’s orders going forward.
In his September 25 order, Walton instructed NSA to brief him on September 28 on these latest violations.
In other words, as far as the declassified record thus far shows, FISC had newfound reason to be “deeply troubled” by violations (and probably, NSA’s failure to notice the court on them) when it briefed the House Intelligence Committee on October 21.
And the Administration didn’t tell HPSCI that, right in the middle of debates about PATRIOT (and therefore Section 215) reauthorization.
And yet the I Con and its defenders insist — insist! — Congress was fully informed when it reauthorized PATRIOT.
Yesterday, I Con the Record released more records in response to the ACLU FOIA for records on the Section 215 program (though once again, they didn’t mention the FOIA).
Three of the documents provide more data points for a notable progression I laid out in this post, in which Reggie Walton appears to have shut down some collection from one telecom on July 9, 2009, reapproved it (including retroactively) on September 3, 2009, just in time for the Intelligence Community to claim Section 215 collection was central to the Najibullah Zazi investigation.
First, a July 2, 2009 notice to Walton provided the End-to-End review “for the Court’s information.” It had been completed on June 25 and provided to the Intelligence and Judiciary Committees on June 30. It was also included in the formal DOJ filing to Walton on August 19, which left the impression that DOJ had held it for two months before sharing it with the court. But this notice makes it clear Walton received a copy with only a slight delay (and the day before they delivered the first weekly report he had demanded). It also makes it clear he had gotten it, and probably read it, before whatever action he took on July 9. What may be the problematic collection (see page 15-16) apparently got reported to FISC before May 29 (no mention of a formal notice is included, though it seems to be addressed in the May 29 order). But there are other violations (such as the sharing described on page 17 that may involve Homeland Security) that appear to have been newly disclosed with this report.
In a second document — a September 10 notice to just the Senate Intelligence Committee (?!) that Judge Walton had reauthorized the bulk collection program on September 3 — reveals that on August 4, FISC Chief Judge John Bates had written Eric Holder a letter raising concerns. The notice portrays a September 1 demonstration for Walton, Bates, and Judge Thomas Hogan (who I believe was the only other FISC judge from the DC Circuit at the time) apparently at NSA as a response to Bates’ concerns. But the description of the demonstration also notes that,
The information was presented in the context of a current operation that concerns a potential threat to the U.S. homeland.
Remember, this was before (by 2 days) the Zazi investigation started. So this must reference something else, though it certainly didn’t sound all that urgent.
In any case, while it is unclear who got Bates involved (after all, it could have been the Administration, complaining that some of its production had been cut off), it is noteworthy he was involved, which provides a little more background to the frustration he expressed in his October 3, 2011 opinion accusing the government of signifiant misrepresentations on 3 occasions.
Finally, on October 21, in what must have been part of the PATRIOT Act reauthorization push, National Counterterrorism Center’s Michael Leiter and the NSA’s Assistant Deputy Director for Counterterrorism addressed the House Intelligence Committee. Along with their case for the program and a heavily glossed description of the problems with it (which they indicate had already been noticed in some form to the Committee), they described how tips from the dragnet “have contributed directly to the following specific cases,” plural. It includes an entirely unredacted description of the dragnet’s role in the Zazi investigation (without, for example, disclosing FBI already knew of Adis Medunjanin through travel documents to Pakistan where he and Zazi trained with terrorists). And it includes a shorter description of what must be at least one other case, which is entirely redacted. It’s possible, after all, that that second “success” (which is so credible we can’t know about it) is the ongoing threat referred to in the September 10 notice, which NSA used to scare FISC into reauthorizing the dragnet.
One more detail about the notice to HPSCI. It fails to mention that, less than 3 weeks after he reauthorized the dragnet, Walton learned — from DOJ, not NSA — of further information sharing violations. In other words, the HPSCI witnesses falsely portrayed the problems as fixed, when there were pending violations still being discussed between NSA and FISC.
There’s nothing enormous in these revelations, but they do add to the understanding of how grave FISC took these violations to be, and how partial was Congressional briefing on them. Continue reading
National Counterterrorism Center head Michael Leiter resigned yesterday.
I’m agnostic about whether that’s a good thing or not. NCTC got most of the blame for missing the UndieBomber, which Leiter exacerbated by going off on a ski vacation just after the attempted attack. But Leiter supposedly made some improvements at NCTC.
But I am rather curious about the timing (along with the trial balloons about Hillary and the World Bank, though State has aggressively denied them).
After all, we spent most of Wednesday morning, during Robert Mueller’s confirmation hearing for an unusual two-year extension, talking about the importance of continuity. Mueller has to stick around not solving the anthrax case and not investigating Lloyd Blankfein for two more years, it was explained, because the current CIA Director is about to become Secretary of Defense, after which a current top General will become CIA Director. The justification for Mueller’s extension was that we need continuity at a time of great change, particularly in the aftermath of Osama bin Laden’s death and the lead-up to the 10th anniversary of 9/11.
Now, granted, NCTC head isn’t as senior a position as CIA or FBI Director. But it is, obviously, right in the thick of our preparations for the 9/11 anniversary.
So, uh, were all the stated concerns about continuity just a ruse?
There’s not all that much in this Bob Woodward piece on the raid to get Osama bin Laden that hasn’t already been reported generally elsewhere: just some details about the surveillance leading up to the raid (which I’ll discuss below) and a cute anecdote about how they measured bin Laden’s corpse to make sure it was taller than six feet.
When bin Laden’s corpse was laid out, one of the Navy SEALs was asked to stretch out next to it to compare heights. The SEAL was 6 feet tall. The body was several inches taller.
After the information was relayed to Obama, he turned to his advisers and said: “We donated a $60 million helicopter to this operation. Could we not afford to buy a tape measure?”
So it’s fair, I guess, to take the article’s selected emphasis as the narrative the White House wanted told. And that narrative focuses on what a risky decision it was to approve the raid.
The [phone call between Abu Ahmed al-Kuwaiti and a friend, from which Woodward includes direct quotes] and several other pieces of information, other officials said, gave President Obama the confidence to launch a politically risky mission to capture or kill bin Laden, a decision he took despite dissension among his key national security advisers and varying estimates of the likelihood that bin Laden was in the compound.
To communicate what a difficult decision it was, Woodward provides the competing estimates of the chances that they had really discovered OBL.
Several assessments concluded there was a 60 to 80 percent chance that bin Laden was in the compound. Michael Leiter, the head of the National Counterterrorism Center, was much more conservative. During one White House meeting, he put the probability at about 40 percent.
When a participant suggested that was a low chance of success, Leiter said, “Yes, but what we’ve got is 38 percent better than we have ever had before.”
To back that up, Woodward provides details about the limits of the US intelligence. Of note, Woodward describes that the US was never able to positively ID OBL, in spite of the fact that a man–presumably OBL–paced around the compound for an hour or two every day. While Woodward doesn’t say whether the National Geospatial-Intelligence Agency was able to get a view of his face (the implication is it was not), he does say that the absence of any information about the size of windows or walls in the compound made it difficult to even measure the height of the pacing man.
So we can take two lessons from the story President Obama’s top advisers leaked to Bob Woodward. First, Obama took a pretty big chance when he ordered SEALs to jump into a compound in the middle of a Pakistani garrison town. And second, if you want to evade our surveillance, keep your battery out of your cell phone until you’re at least 90 minutes away from your stationary location and build that location such that any outside space offers no features to allow the NGA to get a good read on you.
When James Clapper testified before the Senate Intelligence Committee, he rejected one of the central criticisms in the WaPo’s Top Secret America series–that the redundancy in the Intelligence Community contributed to waste and intelligence failures.
Clapper disputed criticism of redundancy in intelligence programs, saying that duplication is sometimes a conscious decision. “One man’s duplication is another man’s competitive analysis,” he said.
Perhaps it should come as no surprise, then, that his first act as DNI is to add to the redundancy.
After my second week on the job, I wanted to let you know what an honor it is to be leading this Community of such skilled and dedicated professionals.
When President Obama asked me to lead the Intelligence Community he said he wanted someone who would continue to build our enterprise into an integrated team. I have begun to embark on that process and wanted to share with you a few of my initial thoughts and plans.
I have asked DIA Deputy Director Robert Cardillo to join ODNI in the newly-created role of Deputy Director for Intelligence Integration. While the specifics of this position are still being developed, it unites the roles of Analysis and Collection to elevate information sharing and collaboration between these two essential functions.
Admittedly, Clapper doesn’t explain what he just hired a top DOD intell guy to do, but it sure seems like it overlaps with the mandate of the National Counterterrorism Center.
NCTC serves as the primary organization in the United States Government for integrating and analyzing all intelligence pertaining to terrorism possessed or acquired by the United States Government (except purely domestic terrorism); serves as the central and shared knowledge bank on terrorism information; provides all-source intelligence support to government-wide counterterrorism activities; establishes the information technology (IT) systems and architectures within the NCTC and between the NCTC and other agencies that enable access to, as well as integration, dissemination, and use of, terrorism information.
NCTC serves as the principal advisor to the DNI on intelligence operations and analysis relating to counterterrorism, advising the DNI on how well US intelligence activities, programs, and budget proposals for counterterrorism conform to priorities established by the President.
And the move is all the more bizarre given that Clapper only has this job because the Administration chose to fire Dennis Blair rather than hold Michael Leiter, the Director of the NCTC, responsible for failing to connect the dots on the UndieBomber attack, even though it appears that Leiter deserves more of the blame. So if I’m right that this new position is duplicative of the NCTC position, then the Administration has chosen not to fire the guy most responsible for missing the UndieBomber clues, and instead fire the DNI and replace him with a guy that–rather than firing the guy most responsible for missing the UndieBomber clues–will instead just create a second version of that guy’s position.
Now in an ideal world, the next time someone misses an attack, we’ll be justified in firing Clapper, since he’s the guy who opted for redundancy rather than holding one person responsible. But I’m guessing by then Clapper will be capitalizing on his inevitably short tenure as DNI, getting rich heading six or eight intelligence contractors.
Call me crazy, but this is probably not exactly the kind of treatment Thomas Jefferson was thinking the Declaration of Independence would receive 234 years after he wrote it.
Many nights an item prompts a call to wake the NCTC director, Michael Leiter, 41, the junior member of the nighthawks. He displays a copy of the Declaration of Independence, next to a deck of baseball-style cards of high-value terrorist targets: “I keep the ones who are dead on top. It’s a little macabre, but that’s the world we live in.” When the NCTC calls in the middle of the night, he is often half-awake.
Among those cards, after all, is probably the one that signifies that the President has approved, with no due process, an order to assassinate US citizen Anwar al-Awlaki. That’s the kind of thing that Jefferson objected to when he called the following “Despotism”:
He has affected to render the Military independent of and superior to the Civil power.
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For depriving us in many cases, of the benefits of Trial by Jury:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
While I’m making wildarsed Fourth of July guesses, let me also suggest that this kind of security porn–a 24-style terror play in 9 acts–is probably not exactly what Thomas Jefferson imagined as the role of the free press when he so furiously defended it.
I’m thoroughly unsurprised by the news of Dennis Blair’s ouster. After all, it’s an impossible job that appears to serve one purpose: to provide a deck chair you can rearrange every two years as a scapegoat for our continuing inability to detect terrorists even with all the surveillance toys we’ve got.
(Actually, if you’re Michael McConnell, it serves a second, more personal, purpose: giving you means to privatize intelligence for the benefit of your once and future employers.)
But I’ve got a few questions after I read the following on Twitter:
Chuck Todd: MT @SavannahGuthrie POTUS asked for Blair’s resignation; Blair appealed to Chief of Staff to make a rebuttal — an offer that went nowhere.
Major Garrett: + Feinstein: “I look forward to working with the President as he identifies his nominee.” Feinstein Cmte rpt final straw for Blair
That is, if you believe the tweets of the White House Press Corps, Blair was ousted by Obama (thoroughly unsurprising news) in response to the SSCI report on the Undie Bomber.
Now, that someone would be canned in response to the SSCI report is also thoroughly unsurprising. It’s a damning report, showing we’ve made little progress since 9/11. Now, several people–like Marc Ambinder and Jeff Stein–seem to think National Counterterrorism Center Director Michael Leiter should be the one canned over this report (and that’s even before you consider that Leiter went on vacation right after Umar Farouk Abdulmutallab’s attempted attack). Whoever gets canned, though, I’m actually a bit pleased that someone will be held responsible for some pretty big failures.
So I understand all that.
It’s the timing I don’t understand. As Ambinder reported earlier this week, this report is not new. It’s just new to us. The White House has had this report for two months.
The SSCI gave its report to the White House and the intelligence agencies two months ago, and an official told me last night that the the IC had made progress implementing many of its regulations. The new budget contains more authority for the DNI to make technical decisions more quickly, which should help with the database issues. A DNI official said that Blair “accepted” blame and is making necessary changes.
If the White House were going to fire Blair in response to the report, why didn’t he get fired two months ago? Why let him start fixing thing (you know, shifting his deck chair), and then fire him?
Or did Rahm and Obama hold off on firing him until this report was declassified so he could serve as a very public scapegoat shortly after its release?