PIAB

Pivot, Damnit!

Remember how during Chuck Hagel’s confirmation I kept insisting that Hagel actually had an intelligence oversight role at the President’s Intelligence Advisory Board that might be pertinent to the confirmation battle?

Turns out PIAB wasn’t just scrounging intelligence for their own contracting interests, as often happens with PIAB and its predecessor PFIAB.

A panel of White House advisers warned President Obama in a secret report that U.S. spy agencies were paying inadequate attention to China, the Middle East and other national security flash points because they had become too focused on military operations and drone strikes, U.S. officials said.

Led by influential figures including new Defense Secretary Chuck Hagel and former senator David L. Boren (D-Okla.), the panel concluded in a report last year that the roles of the CIA, the National Security Agency and other spy services had been distorted by more than a decade of conflict.

And while the WaPo focuses on the way this report might have influenced John Brennan — who repeatedly said he’d assess the “allocation of mission” at CIA — I’m just as interested in how the report influenced James Clapper, who recently testified we face a more diverse set of threats than ever before.

This year, in both content and organization, this statement illustrates how quickly and radically the world—and our threat environment—are changing. This environment is demanding reevaluations of the way we do business, expanding our analytic envelope, and altering the vocabulary of intelligence. Threats are more diverse, interconnected, and viral than at any time in history.

If so, I find it interesting that rather than focusing on China, Clapper focused on cyber and — to an unremarked degree — food insecurity (AKA climate change). That is, the report seems to say we need to refocus on China, but Clapper seems to be focusing on cyber instead (which is sort of a focus on China, as will food insecurity be).

One more point. The WaPo suggests that the report said we’re wasting too much energy on drones, and rehashes today’s drone-to-DOD announcement, including this predictable tidbit.

The White House also is weighing whether to give the Defense Department more control over the drone campaign and reduce the CIA’s role, although officials cautioned that the change could take years and probably would not involve CIA drone operations in Pakistan. [my emphasis]

But it doesn’t consider what it means that one of the guys who chaired this report is now in charge of the agency that is reportedly getting all the drones.

First Obama’s Moral Rectitude Drone Assassination Czar, after setting up a Drone Rule Book, will spin off CIA’s drone program (except for Pakistan, and maybe not for another few years, and, well, maybe he’s got his fingers crossed a little bit, covertly) to DOD. Meanwhile, it turns out the guy getting that drone program, former PIAB co-Chair and now Secretary of Defense, thinks we need fewer drones and more real intelligence.

Funny how that works out.

CIA General Counsel: If the President Authorizes It, It’s Legal

I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–”national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

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

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.

White House Won’t Tell DNI It Should Be More Powerful

Now for your latest installment of DOD’s expanding intelligence authorities, DNI’s increasing irrelevance, and the White House’s efforts to make sure those trends continue.

As you’ll recall, back in March, the Senate Intelligence Committee sent a scathing report on the many failures to stop the Undie Bomber. The report was most critical of the head of the National Counterterrorism Center, Michael Leiter. But instead of replacing Leiter right away, the Administration sat on the report for two months until it became public, and then used the report as its excuse to fire Director of National Intelligence Dennis Blair as the scapegoat for the Christmas Day attack. The White House reportedly tried to get either Leon Panetta or Chuck Hagel to take over, but after they refused, Obama nominated James Clapper, over the objections of both the Democrats and Republicans who need to confirm the position on SSCI. Two things make this worse: in the face of the need to scale back DOD’s intelligence portfolio to better balance our intelligence community as a whole, DOD has instead been expanding it. And Clapper signed an April memo arguing against a range of controls Congress was trying to put on DOD’s intelligence activities.

It turns out that in addition to SSCI’s March report finding NCTC most responsible for the Christmas Day attack, and Clapper’s April report calling for DOD to keep its expansive intelligence powers, the President’s Intelligence Advisory Board was issuing its own report, finished in March and sent to Congress on April 1. The report calls for a stronger DNI–precisely what Congress is trying to do but DOD and the White House are trying to prevent.

But the White House has not shared the report with the DNI’s office.

The White House has withheld a key report, which maps out a strategy for fixing the troubled Director of National Intelligence, from the Office of the Director of National Intelligence. The classified report, “Study of the Mission, Size, and Function of the Office of the Director of National Intelligence,” was completed by the Presidential Intelligence Advisory Board (PIAB) at least as early as March, several weeks before President Obama asked DNI Dennis Blair to resign. The report came at an inopportune time for the White House, which has pursued a policy course counter to the report’s advice.

Multiple sources within the Office of the Director of National Intelligence tell The Atlantic that the office, which employs about 1,500 people including the director himself, never received the report. The White House would not comment on how it was distributed, but Assistant Press Secretary Tommy Vietor said, “The study you reference was shared with DNI Blair, who provided us comments on the findings.” However, the findings are only a brief summary of the report’s unclassified sections; they are also freely available on Politico’s website. The full report, which is classified, has not been shared.

Of particular import here is the White House’s organized blow-off of Congress. Congress commissioned the PIAB report last year as part of the 2010 Defense Authorization.

Congress commissioned the PIAB report late last year as part of the 2010 Department of Defense Appropriations Act, requiring the board to evaluate the DNI and offer proposals for improving it.

At the same time, Congress included some provisions in the 2010 Intelligence Authorization–things like controls on expenditures and expanding budgets, review of the use of contractors, and an Inspector General for the entire intelligence community–that would strengthen the DNI and rein in DOD. SSCI sent a report to the White House in March that the White House used to start planning the ouster of Dennis Blair, who was sympathetic to the goal of a stronger DNI. And at the same time, the White House was refusing to share the PIAB report which would have strengthened Blair’s hand. Against the background of the report showing that the President’s advisory board thinks Congress, not DOD, is right about how the Intelligence Community is organized, the White House sends the Clapper nomination–which is designed to do just the opposite.

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The Incredible Disappearing PFIAB

Smintheus provides a good background on Bush’s Executive Order to gut PFIAB (h/t scribe).

On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.

[snip]

The newly revised IOB is much more passive. Gone is the duty to review agency guidelines regarding illegal intelligence activities. Gone is the duty to hold accountable the intelligence watchdog offices, such as inspectors general, who are supposed to serve as a bulwark against illegal activities.

Gone is the duty ("shall…forward") to take illegal activities directly to the Attorney General.

I wanted to add just a few details of context.

First, recall that the referrals by IOB–and the absence of any response to such referrals–got Alberto Gonzales in trouble.

In 2005, Gonzales had assured Congress there were no violations of privacy associated with the PATRIOT Act. But last year it became clear that Gonzales received reports of at least six violations.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

When cornered on his lie, Gonzales invented some mumbo jumbo about how violations that get reported to the IOB aren’t really violations.

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