As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its FOIA lawsuit.
According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about a memo — which is probably the same one — even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about a May 30, 2003 memo. On October 5, Ron Weich wrote Reyes,
We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.
In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”
That seems like a problem to me.
It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.
Update: On reflection, I may have overstated how sure we can be that this May 30 opinion is the same opinion. I’ve adjusted the post accordingly.
In a profile in Politico, Justin Amash* makes the case that the Freedom Caucus’ rebellion against John Boehner isn’t so much about ideology, it is about process.
Republican leaders see Freedom Caucus members as a bunch of bomb-throwing ideologues with little interest in finding solutions that can pass a divided government.
But that’s a false reading of the group, Amash told his constituents. Their mission isn’t to drag Republican leadership to the right, though many of them would certainly favor more conservative outcomes. It’s simply to force them to follow the institution’s procedures, Amash argued.
That means allowing legislation and amendments to flow through committees in a deliberative way, and giving individual members a chance to offer amendments and to have their ideas voted on on the House floor. Instead of waiting until right before the latest legislative crisis erupts, then twisting members’ arms for votes, they argue, leadership must empower the rank and file on the front end and let the process work its will.
“In some cases, conservative outcomes will succeed. In other cases, liberal outcomes will succeed. And that’s OK,” said Amash, who was reelected overwhelmingly last year after the U.S. Chamber of Commerce backed his Republican primary rival. “We can have a House where different coalitions get together on different bills and pass legislation. And then we present that to the Senate and we present it to the White House.
The truth lies somewhere in-between. After all, 8 of the 21 questions the FC posed to potential Speaker candidates are ideological in nature, hitting on the following issues:
Admittedly, even some of those — the financial ones — are procedural, but there are some key ideological litmus tests there.
Of the remaining 21 questions, 3 pertain to use of NRCC resources, 4 pertain to conference make-up, and 6 have to do with process. In other words, this block of members wants to end the systematic exclusion of their members from leadership and other positions and the systematic suppression of legislation that might win a majority vote without leadership sanction.
And while I certainly recognize that some of these process reforms — again, especially the financial ones — would likely lead to more hostage taking, I also think such reforms would also make (as one example) stupid wars and surveillance less likely, because a transpartisan majority of the House opposes many such things while GOP leadership does not (Nancy Pelosi generally opposes stupid surveillance and wars but also usually, though not always, does the bidding of the President).
The Yoder-Polis Act, an ECPA reform bill supported by 300 co-sponsors, is an example of worthy legislation that has long been held up because of leadership opposition.
While making the case for reform, though, I’d like to make the suggestion for another: to boot Devin Nunes, the current Chair of the House Intelligence Committee. According to the House Republican rules, the only positions picked by the Speaker are Select Committee Chairs, which would include Nunes and Benghazi Committee Chair Trey Gowdy (the latter of whom seems to be taken care of with Republican after Republican now admitting the committee is just a hack job, though if the FC wants to call for Richard Hanna to take over as Chair to shut down this government waste, I’d be cool with that too).
But with Boehner on his way out, it seems fair to suggest that Nunes should go too. While Nunes was actually better on Benghazi than his predecessor (raising questions about the CIA’s involvement in gun-running), he has otherwise been a typical rubber stamp for the intelligence community, rushing to pass info-sharing with Department of Energy even while commenting on their shitty security practices, and pitching partisan briefings to give the IC one more opportunity to explain why the phone dragnet was more useful than all the independent reviews say it was.
The Intelligence Community has lost credibility since 9/11, and having a series of rubber stamp oversight Chairs (excepting Silvestre Reyes, who was actually reasonably good) has only exacerbated that credibility problem. So why not call for the appointment of someone like former state judge Ted Poe, who has experience with intelligence related issues on both the Judiciary and Foreign Relations Committees, but who has also been a staunch defender of the Constitution.
Hostage taking aside, I’m sympathetic to the argument that the House should adopt more inclusive rules, in part because it would undercut the problems of a two party duopoly serving DC conventional wisdom.
But no place in Congress needs to be reformed more than our intelligence oversight. And while picking a more independent Chair won’t revamp the legal structure of intelligence oversight, it might initiate a process of bringing more rigorous oversight to our nation’s intelligence agencies.
Of course, who am I kidding?!?! It’s not even clear that the GOP will succeed in finding a palatable Speaker candidate before Boehner retires. Throwing HPSCI Chair into the mix would likely be too much to ask. Nevertheless, as we discuss change and process, HPSCI is definitely one area where we could improve process to benefit the country.
*Amash is my congressperson, but I have not spoken to him or anyone else associated with him for this post and don’t even know if he’d support this suggestion.
WaPo has a biting profile of Robert Litt, ODNI’s General Counsel who made one more failed attempt to rationalize James Clapper’s lies to Congress last week.
One of the most newsworthy bits is that WaPo published the name of Alfreda Frances Bikowsky, the analyst who got Khaled el-Masri kidnapped and tortured by mistake, for the first time.
A far more subtle but equally important detail comes in its description of why House Intelligence Chair Mike Rogers banned Litt from appearing before the Committee last summer.
Some lawmakers have found Litt’s manner off-putting at best. Rogers, the chairman of the House Intelligence Committee, made clear to the DNI’s office last summer that Litt was no longer welcome before his panel.
“The committee has not found Bob to be the most effective witness to explain complex legal and policy issues,” said a U.S. government official familiar with the falling-out. Rogers was also bothered that Litt faulted the committee for not doing more to share information about the surveillance programs with other members, unaware that doing so would have violated committee rules. [my emphasis]
For what it’s worth, I suspect Rogers is not worried as much about Litt’s honesty (Rogers hasn’t objected to James Clapper or Keith Alexander’s lies, for example, and has himself been a key participant in sustaining them), but rather, for his usual candor and abrasiveness, which the article also shows inspiring members of Congress to want to repeal the dragnet. Litt couches his answers in legalese, but unlike most IC witnesses, you can often parse it to discern where the outlines of truth are.
But I am acutely interested that Litt blames Rogers for not “doing more to share information about the surveillance programs with other members.”
That refers, of course, to Rogers’ failure to make the Administration’s notice on the phone dragnet available to members in 2011, before the PATRIOT Reauthorization. As a result of that, 65 Congressmen voted to reauthorize the PATRIOT Act without full notice (perhaps any formal notice) of the phone dragnet — a sufficiently large block to make the difference in the vote. In spite of that fact, the Administration and even FISA Judges have repeatedly pointed to Congress’ reauthorization of the phone dragnet to explain why it’s legal even though it so obviously exceeds the intent of the Section 215 as passed.
Apparently Litt blames Rogers for that. And doing so got him banished from the Committee.
Frankly, Litt is right in this dispute. Rogers’ excuse that committee rules prevented him from sharing the letter the Administration stated they wanted to be shared with the rest of Congress rings hollow, given that just one year earlier, Silvestre Reyes did make the previous letter available. If committee rules prevent such a thing, they are Rogers’ committee rules, and they were fairly new at the time. (Ironically, by imposing those rules, Rogers prevented members of his own party, elected with strong Tea Party backing, from learning about intelligence programs, though he may have just imposed the rules to increase the value of his own special access.)
So it is Rogers’ fault the Administration should not be able to claim Congress ratified the FISA Court’s expansive understanding of Section 215.
And Rogers and Litt’s spat about it make it clear they both know the significance of it: claims of legislative ratification fail because Congress did not, in fact, know what they were voting on, at least in 2011.
Unsurprisingly, that has not prevented the Administration from making that claim. Litt himself made a variety of it before PCLOB in November, months after he had this fight with Rogers.
[NSA General Counsel Raj] DE: So in other words, and some of this is obviously known to you all but just to make sure members of the public are aware, not only was this program approved by the Foreign Intelligence Surveillance Court every 90 days, it was twice, the particular provision was twice re-authorized by Congress with full information from the Executive Branch about the use of the provision.
MR. LITT: I just want to add one very brief comment to Raj’s in terms of the extent to which Congress was kept informed. By statute we’re required to provide copies of significant opinion and decisions of the FISC to the Intelligence and Judiciary Committees of both Houses of Congress and they got the materials relating to this program, as we were required to by law.
Now, Litt’s intejection here is particularly interesting. He doesn’t correct De. He shifts the claim somewhat, to rely on Judiciary and Intelligence Committee notice. But even there, his claim fails, given that the Administration did not provide all relevant opinions to those Committees until after the first dragnet reauthorization in 2010. Litt probably thinks that’s okay because he didn’t qualify when Congress got the materials.
But it’s still a blatant lie, according to the public record.
More significantly, the Administration repeated that lie to both the FISC and, more significantly still, the 3 Article III Judges presiding over challenges to the dragnet generally.
The Administration keeps running around, telling everyone who is obligated to listen that Congress has ratified their expansive interpretation of the phone dragnet. It’s not true. And the fact that Litt and Rogers fought — way back in the summer — over who is responsible makes it clear they know it’s not true.
But they still keep saying it.
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.
As I laid out in more obscure fashion here, there are slight — but interesting — differences between how the 2009 Congressional notice, the 2011 Congressional notice, and the 2013 White Paper on the PATRIOT Act dragnet(s) describe the compliance problems. I’ve laid out all three below.
I’ll have more to say about the differences in a follow-up. But for the moment, note that the White Paper released 11 days ago doesn’t date the compliance issues.
Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight.
The 2009 one doesn’t either — though it does reveal that the government was only just briefing the FISC that September on its compliance fixes when Silvestre Reyes first asked for this notice (they stalled almost 3 months in responding to him), at least suggesting the recentness of the discovery. The 2011 notice limits the compliance issues to 2009, though.
In 2009, a number of technical compliance problems and human implementation errors in these two bulk collection programs were discovered
Note, too, the different descriptions of the FISC response. Both the 2009 and 2011 assure Congress that the FISC, along with the Executive, found no evidence of bad-faith or intentional violations.
However, neither the Department, NSA nor the FISA Court has found any intentional or bad-faith violations.
The 2011 also reveals that the FISC imposed restrictions on the program — restrictions that surely were in place in March 2009, when Dianne Feinstein and Kit Bond tried to start the PATRIOT Reauthorization program and may still have been in place in September 2009 (there were notices to Congress about the program on February 25, April 10, May 7, June 29, September 3, and September 10, 2009, and briefing materials sent to FISC on the program on September 1, September 18, and sometime in October).
Nice of DOJ to tell Congress that two years after the fact.
The White Paper, however, describes the FISC response — at times — quite differently. It makes no claim about whether FISC found intentional violations. And it reveals the FISC has, on occasion, “been critical” of both the compliance problems and the government’s court filings.
The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures.
Not only is there no claim that the FISC found no bad-faith problems, but it now reveals that “on occasion” the FISC has been critical — critical about both the problems and the the government’s claims about the problems.
There are several possible explanations for the difference in language.
Perhaps, for example, the government revealed FISC’s critical stance because it knew the FISC would read this White Paper, along with the rest of us, whereas the Congressional notifications would originally have never been seen by the FISC. Thus, the Administration would have reason to be far more frank about the FISC’s response than it did in the past.
But in conjunction with the silence about the date of these compliance problems, I do wonder whether FISC has grown more critical since 2011. After all, if there have been violations since this apparently extended effort in 2009 to fix compliance issues, wouldn’t it make the Court crankier?
One more thing to keep in mind. Continue reading
Congratulations to the WaPo which is catching up to what I first reported here, that Mike Rogers didn’t tell House Members about a notice of the PATRIOT Act dragnet programs before the vote. (Note: WaPo makes an error when it claims Congress got the previous notice in 2009; Silvestre Reyes and Dianne Feinstein sat on that letter for 2 months after they got it.)
Sadly for Mike Rogers, his excuses are getting stupider.
Admittedly, his past excuses were pretty stupid. In that version, the House Intelligence Committee suggested that having four briefings (for Republicans! only?!) in the last several months made up for not providing notice back in 2011.
The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country.
But in this version, House Intelligence Committee spokesperson Susan Phalen claims providing notice of the need to be informed is a side issue.
A spokeswoman for the House committee, Susan Phalen, declined to say whether the panel had voted to withhold the letter or if the decision was made by Chairman Mike Rogers (R-Mich.).
“Because the letter by itself did not fully explain the programs, the Committee offered classified briefings, open to all Members of Congress, that not only covered all of the material in the letter but also provided much more detail in an interactive format with briefers available to fully answer any Members’ questions,” Phalen wrote in an e-mail. “The discussion of the letter not being distributed is a side issue intended to give the false impression that Congress was denied information. That is not the case.” [my emphasis]
Remember, what (according to the White Paper) Rogers did not do was write a letter telling Members of Congress there was an issue they might want to learn about. Dianne Feinstein sent a letter, dated February 8, 2011, telling colleagues they could come read the letter from the Administration, dated February 2, 2011. According to the White Paper, Mike Rogers sent no such letter — not to tell Congressmen there was a letter, not to tell them what the briefings they held instead were about. So the briefings were pointless, because without notice of them, no one would attend.
That’s not a “side issue.” That goes to the central issue of whether 65 of the yes votes for the PATRIOT Act had had adequate notice what they were voting for.
At this point, the House Intelligence Committee is not even trying to deny that. The only question remaining is whether Rogers provided no notice on his own, with the consent of the committee, or at the behest of the Administration that gave them the letter in the first place.
I already made this point when I was the first person to point out that the House Intelligence Committee apparently did not share the 2011 notice provided by DOJ with members outside of the House Intelligence Committee.
In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010); [my emphasis]
Here’s what it says happened to the 2011 notice provided to Mike Rogers and Dianne Feinstein.
An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011). [my emphasis]
See that word “both” when describing what the intelligence committees did in 2009? See the description of the “Senate Intelligence Committee” followed by a period in describing what the intelligence committees did in 2011, with no mention of “both” or the House Intelligence Committee whatsoever?
The White Paper is as clear as any document spewing disingenuous claims can be (there are several even in these two passages). In 2009, both intelligence committees sent a letter to their respective colleagues letting them know the notice was available. In 2011, just the Senate Intelligence Committee did.
That means at 65 of the people who voted to reauthorize the PATRIOT Act in 2011 had no way of knowing they were reauthorizing the ongoing creation of a database of the phone-based relationships of every American. At least in theory, those 65 members were more than enough to make a difference in the vote.
I’m working on a very weedy post on the White Paper’s duplicitous presentation of what it calls support for Congress for the Section 215 dragnet.
But I’d like to compare a claim from this WaPo story on how secrecy makes it difficult for Congress to exercise oversight with a detail from the White Paper.
Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.
“If you have individual members who say they don’t have time to be on the intelligence committee, then I say get off the intelligence committee,” he said.
Ruppersberger said all members benefit from an expert staff and a push in recent years for greater bipartisanship on the panel. The issues are complex and time-consuming, he said, “but we have to learn them. We have to hold these agencies accountable, but we also have to give them the resources they need to protect our country.”
Sen. John D. Rockefeller IV (D-W.Va.), a member of the Senate Intelligence Committee who expressed anger that Congress was kept in the dark about interrogation and surveillance tactics under the George W. Bush administration, now feels that Congress has what it needs. He credits Feinstein and the Senate panel’s ranking Republican, Sen. Saxby Chambliss of Georgia, for inviting every senator into the committee offices to examine classified materials.
“The intelligence oversight committees have kicked the tires on these programs very hard, with hearings and legislation and oversight, and the programs have overwhelming bipartisan support on these committees,” a Rockefeller spokeswoman said.
At this point in the story, I started wondering why the WaPo made no mention of this Guardian report, which documented what the House Intelligence Committee’s responsiveness was really like.
Rep. [Morgan] Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for “access to the classified FISA court order(s) referenced on Meet the Press this past weekend”: a reference to my raising with host David Gregory thestill-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.
In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC “reviews and critiques” of the NSA. He stated the rationale for his request: “I took an oath to uphold the United States Constitution, and I intend to do so.”
Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read about Yahoo’s unsuccessful efforts in court to resist joining the NSA’s PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC’s ruling requiring Yahoo to participate in PRISM.
On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.
The Congressman received no response to any of his requests.
The Guardian story also reveals how the House Intelligence Committee voted against giving Alan Grayson material, and quotes Justin Amash saying he had similar difficulties getting information.
But I also wondered, since this WaPo report was clearly written in part to assess claims in the White Paper that Congressional approval has been a key part of this program, why it didn’t quote these two passages:
In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010);
An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011).
I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.
September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.
September 18, 2001: Congress passes the Authorization to Use Military Force.
November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.
Late 2008: Ruben Shumpert reported killed in Somalia.
June 24, 2009: Leon Panetta gets briefed on assassination squad program.
June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.
July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.
July 8, 2009: Silvestre Reyes announces CIA lied to Congress.
October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.
October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.
October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.
November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.
December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.
December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.
January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh Continue reading
Five months into Obama’s first term, then-CIA Director Leon Panetta caused a scandal by telling Congress about Blackwater-staffed assassination squads deployed under the Bush Administration; we would ultimately learn the program was run by a still-active mafia hitman.
Partly in response and partly because of the CIA’s lies to Congress under the Bush Administration, the Intelligence Committees began to tie funding to full briefing of the Committees, rather than just Gang of Eight (which were really Gang of Four) briefings Bush used to avoid oversight. The White House responded by issuing a veto threat if Congress violated the “fundamental compact” of letting CIA operate with almost no oversight. In response, after adding the shoot-down of a missionary plane to the scope, then House Intelligence Chair Silvestre Reyes got Pete Hoekstra to support an investigation into all the times CIA lied to Congress, which Reyes announced in July 2009. By October 2009, the House Intelligence Committee released its preliminary conclusion that CIA had lied to Congress on at least five occasions. In summer 2010, Nancy Pelosi got pissed. In October 2010, Obama finally signed Intelligence Authorization purportedly agreeing to new oversight. In November 2010, Reyes released the final results of the HPSCI inquiry, which showed that “in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies.” However, he said, most of the problems were fixed with that year’s Authorization. In the next Congress, Reyes would be replaced as Ranking Member at HPSCI by Dutch Ruppersberger, a servant to the NSA.
From June 2009 until October 2010, a Democratic Congress and the Obama Administration were engaged in a surprisingly contentious argument over whether the Administration would permit Congress to engage in adequate oversight of the Intelligence Community. In October 2010, the Administration purportedly agreed to abide by the clear terms of the National Security Act, which requires briefing of all members of the Intelligence Committees on covert programs.
With that in mind, consider the timeline suggested by Senate Intelligence Committee member Ron Wyden’s letter to John Brennan (see also this post).
December 2010: Wyden and Russ Feingold ask Eric Holder about “the interpretation of a particular statute” (probably having to do with online privacy)
Before January 2011: Wyden asks about targeted killing authority
April 2011: Wyden calls Eric Holder with questions about targeted killing authority
May 2011: Intelligence Community provides some response to Wyden, without answering basic questions
Before January 2012: Wyden asks for “the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities”
Early 2012: Wyden repeats request for response to letter about a particular statute (probably online privacy)
February 2012: Wyden renews his request for answers on targeted killing
In October 2010, the Obama Administration agreed to let Congress oversee the Intelligence Community’s activities.
Almost immediately thereafter, the Administration started stonewalling Wyden, a member of one of those Committees with supposedly renewed oversight authority, on at least three issues (though two–the lethal authority and the targeted killing–are closely related). (As I’ll discuss in a follow-up post, they also blew off Wyden’s request to revoke an OLC opinion that probably guts Americans’ privacy.)
And remarkably, one of the topics on which the IC is stonewalling Wyden–where the IC has engaged in lethal counterterrorism authorities–may well be precisely the issue that set off this process back in June 2009, the use not just of drones to kill alleged terrorists, but also assassination squads.
Even as Wyden made this timeline clear, he also revealed not only that the CIA lied to all the outside entities overseeing its torture program, but continues to lie to the American people about that program.
As Obama’s top counterterrorism advisor and an at least tangential participant in the earlier decisions on the “lethal counterterrorism authorities,” John Brennan has presumably been instrumental in the continued stonewalling of Congress. In a few weeks, he hopes to be approved to lead the CIA.