In a an interview with me on intelligence reform on Saturday, Speaker Pelosi suggested that the White House should either accept real reform of the oversight function–including some version of House amendments on GAO review of intelligence programs and expanded intelligence briefing beyond the Gang of Four–or accept full responsibility if anything goes wrong with its intelligence programs, because the intelligence committee (or at least the House intelligence committee) cannot exercise effective oversight under the current rules.
Recent coverage on the intelligence reform routinely points out that Speaker Pelosi refuses to budge on these two issues. But it rarely explains why Pelosi is so adamant about these reforms. In our interview, Pelosi (and Jan Schakowsky, who was in the room) laid out some of the reasons: Pelosi discussed the times when Gang of Four members were briefed but could not tell others (including an oblique discussion of the games CIA played with their briefings of her on torture). Schakowsky reminded Pelosi that Congress did not know the intelligence “justifying” the Iraq War. The Speaker also described a time when expanding numbers of House staffers were read into a topic only briefed to the Gang of Four, even while the members of the committee were not briefed. Pelosi mentioned the investigation Schakowsky’s subcommittee did, which concluded that CIA had failed to inform the Intelligence Committee of five major incidents. Schakowsky described the resource and expertise limitations on the committee and explained how GAO could alleviate that. Pelosi described an unevenness between the way the White House treats non-compartmented intelligence requests from the Senate and the House–including deciding to prevent specific members from seeing particular intelligence.
And both women described the absurdity by which a quarter-million contractors can get Top Secret clearance but the members of Congress selected to conduct oversight over Executive Branch intelligence activities (including, in an ideal world, over those very same contractors) couldn’t get access to the same information the contractors got.
Pelosi and Schakowsky seemed thoroughly frustrated with the joke that has become of intelligence oversight, particularly since the Bush Administration found a bunch of new ways to game the system and now the Obama Administration has threatened to veto House efforts to eliminate the ways Bush succeeded in gaming the system.
And of course, we discussed all these complaints in the context of last week’s WaPo series and what Pelosi calls the “Leviathan” of the intelligence contracting world, in which, right now, Congress can’t conduct cost analysis of contractors or measure the efficacy of the outsourced programs.
Now, I’m pretty sympathetic with the frustration with the arrogance of Administrations that refuse to share information.
Nancy Pelosi: Now, not having to do with the difference between ranking and regular members, when I became Ranking Member, I was in the room all the time and this and that oh my god and then you can’t and members are taking votes and you’re thinking, ‘You don’t even know what you’re voting on.’
So but if you’re a Senator–and this is why the Senate doesn’t mind that much–if you’re a Senator and you want to go and get any information on intelligence–I’m not talking about highly compartmented–
Marcy Wheeler: Wiretapping and interrogation…
Pelosi: Well, it just depends on what they might be at any given time. I’m just talking about intelligence information. Intelligence. You’re a Senator [knocks on table] Here it is. You’re a House member, you have to have a vote of the Committee.
Schakowsky: Yes you do.
Pelosi: … to get it. Which you may or may not get. And which the Administration may or may not approve, depending on who it is and the rest of that. Continue reading
The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.
First, the news. The AP story does reveal the following new details:
_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.
_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.
_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.
_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.
As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.
But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:
Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.
Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).
In his review of the Wikileaks material on Afghanistan, Marc Ambinder notes that John Kerry referred to “serious questions about the reality of America’s policy toward Pakistan and Afghanistan.”
Will it raise skepticism in Congress? Absolutely. The chairman of the Foreign Relations Committee, John Kerry, said in a statement that “[h]owever illegally these documents came to light, they raise serious questions about the reality of America’s policy toward Pakistan and Afghanistan. Those policies are at a critical stage and these documents may very well underscore the stakes and make the calibrations needed to get the policy right more urgent.”
As Siun notes, the leak comes just before the House votes on an Afghan supplemental.
But what about the Senate, which voted on Thursday to pass the supplemental? If John Kerry, the Chairman of the SFRC and no slouch on Afghanistan policy, suggests these leaks shed new light on our Afghan policy, does that mean he and the rest of the Senate had enough information to vote to escalate the war in Afghanistan in the first place?
The degree to which Administrations–Republican and Democratic–withhold information and then ask Congress to endorse actions inflected by that information was a central theme of my discussion with Nancy Pelosi (and Jan Schakowsky) on Saturday. In a discussion of the way Administrations limit briefings on important issues to the Gang of Four or Eight, she describes realizing–after she became Ranking Member of the House Intelligence Committee–the degree to which other members of Congress were voting on policies they knew nothing about. “When I became Ranking Member I was in a room all the time on this and that … and then members are taking votes and you’re thinking ‘you don’t even know what you’re voting on.’” Schakowsky followed up on Pelosi’s point to note how central that ignorance was when Congress authorized the Iraq War.
Now, Pelosi and other members of the Gang of Four bear some responsibility for perpetuating this system that asks Congress to authorize Executive Branch actions in ignorance.
But as I’ll show in my longer post on Pelosi’s comments, that’s precisely why she’s holding out for GAO oversight of the intelligence community and–more directly on point–expanded briefing beyond the Gang of Four.
I’m not sure there is anything in the new WikiLeaks bunch that would have convinced Congress that we can’t continue to dump money into Afghanistan (I’ll take a look at the WikiLeaks documents once I’m done transcribing this interview). But the lessons of the last week–notably, a reconsideration of the degree to which much of the intelligence community has been privatized and hidden in opaque contracts, as well as the WikiLeaks demonstration that the White House isn’t completely forthcoming about the problems in its war in Afghanistan–all demonstrate the need to give Congress the real oversight ability they lack now.
Steven Aftergood reports that DOD signed a directive last week allowing for Government Accountability Office audits of Special Access Programs.
[A] Department of Defense Directive issued last week explicitly allows for GAO access to highly classified special access programs, including intelligence programs, under certain conditions.The newly revised DoD Directive 5205.07 (pdf) on special access programs (SAPs) states that: “General [sic] Accountability Office (GAO) personnel shall be granted SAP access if: a. The Director, DoD SAPCO [SAP Central Office], concurs after consultation with the chair and ranking minority member of a defense or intelligence committee [and] b. The GAO nominee has the appropriate security clearance level.”
The issue of GAO oversight is one of the two issues over which Nancy Pelosi is holding up the intelligence reform bill. In theory, GAO oversight would make it harder for the President to sneak through entire programs via appropriations and harder for corrupt members of Congress to do what Duke Cunningham did–put through appropriations that benefit themselves.
But I’m less sanguine than Aftergood that this directive–as welcome as it is–will do the trick.
To a significant extent, considering the dominance of defense intelligence agencies within the intelligence community, one could say that it now has been so recognized. Only the details remain to be negotiated.
After all, this gives both key members of Congress (the leadership of either an intelligence or defense committee) and the President (because the GAO nominee would require a security clearance–remember that Bush postponed oversight of his illegal wiretap program by denying members of the Office of Professional Responsibility security clearances) veto power over GAO oversight on a program by program basis. Furthermore, it’s not clear that requiring the leadership of “a” committee to approve will do the trick, since many programs have been put through on defense appropriations without revealing them to the intelligence committees.
Finally, this follows a favorite Obama tactic: to negotiate changes Congress wants by implementing them in such a way that the Executive Branch retains the ability to reverse those changes. The whole point of GAO oversight would be to impose a check on the Executive. Whereas, done in bad faith, this could create nothing more than the illusion of a check on the Executive, one that the President might use to try to get Congress to wield on its efforts to impose real oversight.
So while this might bring more transparency and oversight to programs which all parties agree can withstand such oversight, I’m not sure it does much to the address the way in which separation of powers has been manipulated to conduct all sorts of mischief in taxpayers’ names.
As I’ve noted before (here and here), confirmation hearings for James Clapper have gotten bogged down in a dispute between the Administration and both houses of Congress over whether Congress should have the tools to exercise real oversight of intelligence functions.
Right now, Nancy Pelosi is holding out for both extended notification to the Intelligence Committees and GAO audit power over intelligence community functions. But, in spite of earlier claims that she would not hold a confirmation hearing for Clapper until the intelligence authorization passed, DiFi now appears to be softening that stance. She told Chris Wallace yesterday that she will move forward with confirmation hearings provided that Obama chat to Pelosi about her intelligence related concerns (starting at 14:07).
Chris Wallace: One of your other hats that you wear is Chairman of the Senate Intelligence Committee–Director of National Intelligence Blair has been fired. The Acting Director Gompert is resigning. Meanwhile, House and Senate Democrats are deadlocked over the intel reform bill and the whole question of Congressional oversight of spy agencies. How quickly are you going to get this resolved and how quickly are you going to confirm so that we have a Director of National intelligence?
Feinstein: Well the process has begun, he has received the questions. On Friday–
Wallace: This is General Clapper?
Feinstein: Yes, General Clapper. Friday I learned the questions have been answered. They were at the White House. We would expect to receive them this week. We can move. I have requested that the President call the Speaker and try to move our Intelligence bill. the reason the Speaker has a problem with it is because we removed two things which the White House found to be veto-able. One was an extension of notification on certain very sensitive matters to all Members rather than the Gang of Eight. The second was Government Accountability Office, we call it the GAO, oversight which was anathema to the White House. We took that out. The bill passed the Senate, our committee, and the Senate unanimously. We have conferenced it, we’ve pre-conferenced it, with the House Committee. We believe we are in agreement, we’re ready to move. If the Speaker will allow them to go to conference then we can move the bill–
Chris Wallace: But very quickly, will you hold up confirmation hearings for Clapper until you get resolution on the intel report?
Feinstein: Well, I have asked that the President would please talk to the Speaker. If he does that, I will move ahead.
Now, to be fair, Obama’s threatening a recess appointment for Clapper in any case. And–as Wallace pointed out–the resignation of Acting Director of National Intelligence David Gompert and the planned retirement of his possible replacement has ratcheted up pressure to get a permanent replacement in (I’ll point out once again that there seems to be a double standard between the treatment of ODNI and OLC). So the choice is likely between a recess appointment with no intelligence reform and a confirmation hearing with intelligence reform (Clapper’s approval is not assured).
But Pelosi’s making a stand to fix two of the problems that the Bush Administration exploited–and which the Obama Administration, particularly given their veto threat, may plan to exploit as well. DiFi appears to be saying that the principle of real Congressional oversight is worth nothing more than a conversation with the President.
Remember how Dawn Johnsen’s nomination to head OLC languished and then died as Obama claimed–falsely–not to have the votes? Obama pointedly didn’t use a recess appointment to put his incredibly qualified candidate in the post.
Not so for James Clapper, whom Obama is preparing to recess appoint to head Director of National Intelligence rather than make concessions on intelligence oversight to Congress. As Marc Ambinder reports, DiFi won’t hold hearings for James Clapper until an intelligence authorization is passed, but Nancy Pelosi wants to use that intelligence authorization to force the Administration to expand notice on covert programs. And since that’s all going to take a lot of time (and Obama doesn’t want to be forced by Congress to expand notification), Obama’s likely to recess Clapper.
So not just is Obama appointing someone who wants to dismantle DNI even while Congress thinks it should be strengthened, but he’s doing so in such a way that deliberately avoids reestablishing the balance of power between the branches of government.
Hey, Obama? All that crazy covert stuff that will expand in DOD under Clapper? All the problems that’s going to cause? You own that.
As I mentioned in this post, I’ve been weeding through the documents released under FOIA to Judicial Watch last week. I think they suggest there’s a much closer relationship between the CIA misrepresentations on Congressional Briefings and the destruction of the torture tapes than we’ve known before.
Nancy Pelosi Was Proved Fucking Right
As you might recall, Judicial Watch pursued this FOIA because they thought they were going to catch Nancy Pelosi in a lie.
After the torture memos were released, the torture apologists tried to claim that Congress had been briefed on–and had approved–of torture. But Pelosi pointed out that when CIA briefed her in September 2002, they did not tell her and Goss that CIA had already gotten into the torture business. In spite of the fact that that was completely consistent with Porter Goss’ tales of Congressional briefing, the press took Pelosi’s story as an accusation that the CIA had lied. So the right wing transparency group Judicial Watch FOIAed the records of Congressional briefings, with a focus on proving that Pelosi had lied about having been briefed about the torture that had already happened.
Perhaps in response to this hullabaloo, the CIA’s Inspector General started a review of Congressional–particularly Pelosi–briefings on June 2, 2009. After about six weeks of reviewing their documentation, they came to the following conclusion (starting on PDF 27):
That is, as is the case with CIA’s other briefings on torture, they have no fucking clue what they briefed to Pelosi.
Which leaves Pelosi and Goss’ consistent claim that CIA didn’t even tell them they had already waterboarded Abu Zubaydah 83 times by the time they briefed them.
Creating the Illusion of Congressional Oversight
But the bigger news, as I pointed out earlier, is that the CIA appears to have been crafting a record of Congressional Briefing in conjunction with their efforts to destroy the torture tapes.
As my earlier post laid out, Jose Rodriguez briefed Pelosi and Goss on September 4, 2002. That was the the day before–according to an October 25, 2002 cable (see PDF 3)–folks at CIA HQ started talking in earnest about the danger of the torture tapes. The following day, the briefers altered their record of the meeting (see PDF 84 and PDF 11-12), though we don’t know what the change entailed. No official Memorandum for the Record was ever made of the briefing and there is no record of Stan Moskowitz weighing in on the accuracy of CTC’s version of the meeting (though he did receive a BCC of it). In other words, CTC made a record of the briefing at the same time as they were laying a plan to destroy the torture tapes, and CIA deviated from standard policy by not making any other record of the briefing (though not completing MFRs of torture briefings appears to have become a habit).
As a side note, I’m not certain, but I believe Jonathan Fredman is one of the other two people involved–along with Jose Rodriguez–in this. On PDF 7 of this set, the IG investigation into Pelosi’s briefings describe the last set of documents in its possession as one that someone turned over to DNI leadership on March 23, 2009. On that date, Jonathan Fredman worked at DNI, making him a likely person to have been asked for his documentation on briefing Congress. The description notes that “he, Director (D)/CTC [Jose Rodriguez]” and someone else did the briefing. PDF 11 of the same set quotes from that email: “On 4 September, D/CTC, C/CTC/LGL, and [redacted] provided notification…” which I believe means Fredman–C/CTC/LGL–was the second of three people in the briefing. PDF 84 of this set shows the actual email. This notes that the third person at the briefing was a CTC/Reports person. If I’m right and Fredman had to turn over his documentation, the notice of the “BCC” to Stan Moskowitz would mean that he wrote the email (because otherwise the BCC wouldn’t show up). A later description says someone–whom I believe to be Fredman, given the CTC/LGL return address–showed it to Rodriguez who determined it to be “short and sweet.” In other words, Fredman, one guy on the hook for translating (or mistranslating) DOJ’s limits to the torturers in the field, may have been the guy helping Rodriguez to tweak that record of the briefing.
I’m working on some deep weeds for a post later on Monday (hopefully).
But as a preliminary to them, I wanted to point out a minor–but very critical–bit of timing.
As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.
That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.
On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.
Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]
So here’s what this looks like in timeline form:
September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.
September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.
September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.
September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).
September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.
Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.
As MadDog noted, Judicial Watch just got some new documents detailing briefings Congress received. Or rather, they got new documents providing further proof that CIA has no fucking clue what it said to Congress during some key briefings (this batch shows, for example, that the fall 2003 briefings were never finalized into a Memo for the Record, just as earlier ones weren’t, and PDF 48 shows that many key briefings weren’t recorded).
But in what I’ve reviewed so far, the new documents reveal one important new detail. Page 44 of this PDF provides a mostly redacted record of the briefing CIA gave Porter Goss and Nancy Pelosi on Abu Zubaydah’s torture on September 4, 2002. We know–because both Goss and Pelosi have described this detail the same way–that CIA did not tell the House Intelligence leadership that it had already tortured Abu Zubaydah. CIA told Goss and Pelosi about waterboarding, but spoke of it as a technique that might hypothetically be used in the future, not something that had been used 83 times on one detainee the prior month.
But we haven’t known who gave that badly deceptive briefing. Mind you, I had my suspicions. I thought it likely that Jose Rodriguez, then head of Counterterrorism Center, and the guy who ordered the torture tapes destroyed three years later, was a likely candidate to have done that briefing. But there was no proof.
Assuming CIA’s own documentation is accurate (always a big assumption, given the CIA), then Jose Rodriguez–listed as D/CTC–is the one who gave Goss and Pelosi that deceptive briefing.
Jose Rodriguez went on to participate in destroying evidence of torture that should have been briefed to Congress. And these documents prove (again, presuming CIA’s documents are accurate) that Jose Rodriguez was deceiving Congress about torture right from the start.
John Dingell says he is going to try to persuade Stupak to drop his efforts to sink healthcare with his anti-choice efforts.
The Congress is a place where we represent our people and where we serve our conscience. I strongly disagree with Bart, I think he’s wrong. But he was my friend. He is my friend. We hunt, we have campaigned together, and I’m going to try and show him the error of his ways. And I’m also going to try and see to it that we beat him on this because this is a matter of the utmost humanitarian and economic concern to this nation.
As of right now, the deal that Stupak made with Pelosi is off–he has postponed his press conference and Henry Waxman and Lynn Woolsey have said there is no deal on abortion.
But that leaves the problem of whip count. If Democrats lose all the people who had signed onto the Stupak deal, then they will have to get the vote of every single remaining fence-sitter to be able to pass the bill.
Which probably means it’s not going to pass unless some of those anti-choice Stupak supporters will flip and vote for health care anyway.
I’ve long said that Dingell would be the most likely person to persuade Stupak to let this pass. Not only is Dingell the living history of efforts to pass health care, he has been a mentor to Stupak over his career. So the man who most wants to pass this bill (from a sense of personal destiny) also has a bit of leverage to persuade Stupak.
What I’d like to see Dingell do–aside from talking to Stupak personally–is call Stupak out on his lies, his utterly false claim that the Nelson language doesn’t already restrict access to choice more than it is restricted now, and that only his language would preserve the intent of the Hyde Amendment.
But that’s simply an out-and-out lie.
In view of how the health benefit services industry operates and how insurance product design responds to broad regulatory intervention aimed at reshaping product content, we conclude that the treatment exclusions required under the Stupak/Pitts Amendment will have an industry-wide effect, eliminating coverage of medically indicated abortions over time for all women, not only those whose coverage is derived through a health insurance exchange. As a result, Stupak/Pitts can be expected to move the industry away from current norms of coverage for medically indicated abortions. In combination with the Hyde Amendment, Stupak/Pitts will impose a coverage exclusion for medically indicated abortions on such a widespread basis that the health benefit services industry can be expected to recalibrate product design downward across the board in order to accommodate the exclusion in selected markets.
Now, Stupak can claim he’s simply making a principled stand so long as the media refuses to call him on his lies. But if Dingell called him on it–if Dingell pointed out that this is not a principled stand, but rather an opportunistic effort to exploit a historic moment to attack women’s reproductive rights–then he will not have cover for his actions.
Bart Stupak is not only threatening to kill health insurance reform out of desire to impose his beliefs on women around the country. But he’s doing so using out and out lies.
And it’s time somebody called him on those lies.