The Problems with Pompeo: A Willingness to Use Information on Americans Russia Hacked and Shared with Trump

On Friday, the Senate confirmed the first two of President Trump’s nominees: Generals Mattis and Kelly to run DOD and DHS, respectfully. But it did not confirm the third nominee slotted for that day, Mike Pompeo. In part because the nomination was not dealt with in regular fashion in the Senate Intelligence Committee (which did not vote out his nomination), Ron Wyden managed to force Mitch McConnell to hold 6 hours of debate tomorrow on his nomination.

Wyden has suggested we need to have more debate because Pompeo hasn’t answered all the questions posed to him. And it is true that Wyden has concerns about the following issues. But perhaps most of all, Wyden’s questions suggest he is concerned that the Trump administration will use information the Russians hacked against Americans.

In follow-up questions posed to Pompeo, Wyden expressed concern about Pompeo’s:

  • Enthusiasm for using bulk collections of “lifestyle” information on Americans
  • Willingness to have the CIA engage in activities the Ambassador or other Chief of Mission disagrees with
  • Squirminess about when the CIA can kill a US person
  • Dodginess on classifying torture information that reveals illegal, embarrassing, competitive, or otherwise unclassified information

But as I said, Wyden’s chief concern appears that Pompeo will use information the Russians have or will give the Trump administration against Americans.

Enthusiasm for using bulk collections of “lifestyle” information on Americans

A big point of concern for Wyden and Martin Heinrich throughout Pompeo’s confirmation process is this op-ed he wrote at the beginning of last year. Based in part on the fact that the intelligence community didn’t find the Tashfeen Malik’s anti-American statements on non-public social media, and in part on the demonstrably false claim that the IC didn’t find the Garland attackers beforehand (in reality, the FBI was cheering them on), Pompeo argued we need to collect still more data. “Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database,” he wrote.

Pompeo has dodged questions about precisely what “lifestyle” information he wants to collect — though it surely includes Twitter’s firehose of data from Dataminr. Sadly, he repeatedly pointed to executive orders in his answers, and the new EO 12333 sharing rules permit the access of “public” information, which can include information from data brokers (though Pompeo claims ignorance of what he might want to use). So while Wyden is concerned that Pompeo will start dragnetting Americans, sadly he has been enabled to do so by one of the last things Obama did.

Willingness to have the CIA engage in activities the Ambassador or other Chief of Mission disagrees with

Another concern Wyden raised pertains to disagreements between the Chief of Mission (the top diplomat in a country) and the CIA Station Chief. This has been an issue in the past at least as it pertains to drone strikes in Pakistan and the torture program, where the Ambassador was either not informed or not properly consulted on CIA activities within a country.

When asked a yes or no question whether he would permit CIA to conduct activities even while an outstanding disagreement remained, Pompeo refused to answer, stating instead that he would seek an expeditious decision from the President. Effectively, he suggested if he were losing a disagreement with State, he’d get Trump to override State.

Squirminess about when the CIA can kill a US person

Wyden, who has long sought guidelines on when the US can kill an American citizen, returned to pre-hearing questions on this topic. After citing the Drone Rule Book requirement that DOJ be involved before taking action against a US person, he asked whether Pompeo agreed with the requirement. Pompeo basically said the US “must consider an American citizen’s constitutional rights prior to targeting him” and “CIA attorneys frequently consult with” DOJ (though left open the possibility of relying on less formal analysis). Ultimately, Pompeo dodged laying out any additional checks he’d following before killing an American.

Dodginess on classifying torture information that reveals illegal, embarrassing, competitive, or otherwise unclassified information

Wyden asked Pompeo if he disagreed with the prohibitions on classifying information to “(1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain  competition; or ( 4) prevent or delay the release of information that does not require protection in the interest of national security,” prohibitions that existed in Clinton’s, George W. Bush’s, and Obama’s EOs on classified information. Pompeo said he did not. However, immediately in that context, Wyden asked about the Torture Report, and Pompeo dodged all questions about declassifying the torture report.

Willingness to use information obtained by Russians hacking Americans

But as I said, Wyden’s persistent concerns in his post-hearing questions pertained to whether and how Pompeo would be willing to cooperate with the Russians. Raising a Pompeo hearing comment that if a foreign partner gave the CIA information on US persons “independently,” “it may be appropriate of CIA to collect [that] information in bulk,” Wyden raised Trump’s encouragement of Russian hacking and asked what circumstances would make foreign collection so improper that CIA should not receive such information. Pompeo responded, “information obtained through such egregious conduct may be appropriate for the CIA to use or disseminate.”

Wyden then listed out a bunch of conditions, such as information coming from an adversary, to disrupt US democracy, information implicating First Amendment protected political activity, or information affecting thousands or millions of Americans. “The listed conditions could all be relevant,” Pompeo responded, remaining non-committal.

Wyden raised a Pompeo comment suggesting rules for accessing US person communications under EO 12333 and asked if that was true of information known to include significant US person information. Pompeo said he would consult experts and AGG guidelines (which, arguably, are this flexible).

Wyden raised Pompeo’s promise to expand intelligence cooperation with state and non-state partners, and asked specifically whether this included Russia, and if so how Pompeo planned on dealing with the counterintelligence risks of doing so. Pompeo said he as not referring to “any specific partners,” said, “CIA already has a strong counterintelligence program,” and said anything he did would comply with law and standard practices and be noticed to Congress.

Wyden then asked if “it is legal or appropriate for the White House to obtain from a foreign partner…information that includes the communications of U.S. persons” and if he learned that they were doing so, whether he would inform Congress of it. Pompeo responded “I am not aware of a DCIA role in supervising White House activities or providing legal counsel to the White House on its activities,” apparently committing only to informing Congress of CIA’s own activities.

In short, there are a lot of reasons to be worried about Pompeo as Director of CIA. But Wyden seems most worried that CIA (and the White House) will use information Russia gives them against American citizens.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

20 replies
  1. Dan Lynch says:

    Don’t we already use information provided by “the five eyes” and other countries?

    So is the concern about using any information on Americans provided by any foreign country, or is the concern limited to information provided by Russia because Russia is a cold war boogeyman?

  2. ess emm says:

    “I am not aware of a DCIA role in supervising White House activities or providing legal counsel to the White House on its activities,” apparently committing only to informing Congress of CIA’s own activities.

    What Pompeo said is a good thing, that’s what we want. But the way this sentence is written seems to suggest the CIA should be spying on the WH and reporting out to Congress. Not what you meant, right?

    Regarding the Russian fixation: if the Russians provided info that checks out, how would that be worse than getting it from the 5 eyes or Israel? If Wyden opposes the USG getting inter-US communication from the 5 eyes as a way to get around obtaining a warrant, then yeah, of course.

    • bevin says:

      As in the Boston bombing, for example, where Russian warnings appear to have been ignored.

      As to the idea that Trump “encourages”  “Russian hacking” you are building a monstrous edifice on a flip, and very off hand, remark made in a campaign stop.  To pretend that it was a serious policy statement is disingenuous.

  3. Anon says:

    While he did mention Russia could that concern not spread far more widely. You yourself have detailed the evidence that the other five eyes spy on one-another and share domestic info. Perhaps because Putin is on everyone’s mind he is just playing politics in the best sense and tying a valid general concern to a current worry. Since none of the D’s cared when it was about New Zealand or Britain, perhaps the Ruskies will work?

  4. fastenbulbous says:

    It does matter where intelligence data comes from. The viewpoint can drive interpretation of the info. A Russian camera may capture what an American camera does but a Russian cameraman/editor composes differently than a corresponding American. These viewpoint shifts are important for audience manipulation.

    • bmaz says:

      Don’t know if it is still the case, but at one time the Russians would actually sell you the functional equivalent to Keyhole satellite pictures when NRO wouldn’t even admit they existed. They charged a lot for them though!

  5. Camelotkidd says:

    Marcy;

    I agree with Dan–Don’t we already use information provided by “the five eyes” and other countries?

    According to James Bamford, in the Puzzle Palace, the NSA and GCHQ exchange info so they can get around that pesky law against spying on Americans. They’ve been doing this forever.

  6. SpaceLifeForm says:

    Ultimately, Pompeo dodged

    Perhaps the entire agency should be defunded because they are redundant.

    (though, they are rogue and will not fold)

     

    Do not forget that potus is a us citizen.

    (unless he was really born in kenya)

     

    But Wyden is well aware of events that occurred 1963-11-22.

     

     

     

  7. Hieronymus Howard says:

    Took me a while to notice but the latest incessant drumbeat is:

    Russian election meddling.  Russian election meddling.

    You can intone it twice but four times is even more effective.  You will almost start to believe it.

    The electorate out here in flyover country did not need suggestions as to who to vote for.  Pootin & his compatriots were irrelevant.  “Regime change” came for Hillary but not in a form she expected it.

  8. martin says:

    It’s all a moot point now.  President Liar of Liars appointed DCIA Scumbag Pompeo is now confirmed.  So is our collective free fall to the bottom of the abyss.  Senator Church must be weeping.

    Meanwhile, Not-My-President declares his inaugural date as an official “get on your knees and worship Trumps MAGA ” holiday.  I’ll be burning his effigy..wrapped in an American flag.

  9. SpaceLifeForm says:

    OT:
    CIA (or Cya?) Feeling some pressure?

    Database CIA Claimed Too Difficult To Compile For FOIA Requesters Released In Full On CIA Website

    https://www.techdirt.com/articles/20170122/11182036537/database-cia-claimed-too-difficult-to-compile-foia-requesters-released-full-cia-website.shtml

    The CIA and DOJ insist this stonewalling had nothing to do with the CIA’s online release of CREST files. Apparently, it did all of this out of the goodness of its heart, forfeiting a shot at $100,000+ in FOIA fees and chance to do next to nothing for the next 30 years.

  10. Tristan says:

    Considering the overwhelming information we have concerning the collection of information by our government and its private partners, of American citizens, I would doubt that the Russians have anything more damning than the information our own “Intelligence Community” has.

  11. will not survive says:

    The problem with all state actors is that none of them act in the interest of the people, they act only in the interest of the state which is completely separate from any non sociopath, there are 7000 rulers of the world.
    Anyone with an ounce of moral character knows what needs to be done, and we can argue semantics of governance but the truth we are in an end game of the class war and it is them or us.

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