Remember Jim’s question whether David Petraeus was withholding intelligence last year? And remember my observation that Dick Cheney’s propagandist had resuscitated Petraeus’ gripes about talking points? And remember my focus on the way the Intelligence Committees had become mere spokespeople for the Intelligence Community?

The WaPo adds to that thread. First, by pointing out that Petraeus responded to Dutch Ruppersberger’s (allegedly unsolicited) request for talking points by trying to include intelligence he hadn’t in his briefing.

“We had some new members on the committee, and we knew the press would be very aggressive on this, so we didn’t want any of them to make mistakes,” Rep. C.A. Dutch Ruppersberger III (Md.) said last week of his request in an account supported by Republican participants. “We didn’t want to jeopardize sources and methods, and we didn’t want to tip off the bad guys. That’s all.”

What Petraeus decided to do with that request is the pivotal moment in the controversy over the administration’s Benghazi talking points. It was from his initial input that all else flowed, resulting in 48 hours of intensive editing that congressional Republicans cite as evidence of a White House coverup.

A close reading of recently released government e-mails that were sent during the editing process, and interviews with senior officials from several government agencies, reveal Petraeus’s early role and ambitions in going well beyond the committee’s request, apparently to produce a set of talking points favorable to his image and his agency.

The information Petraeus ordered up when he returned to his Langley office that morning included far more than the minimalist version that Ruppersberger had requested. It included early classified intelligence assessments of who might be responsible for the attack and an account of prior CIA warnings — information that put Petraeus at odds with the State Department, the FBI and senior officials within his own agency.

And by claiming that the minimal talking points the NatSec establishment came up with didn’t meet Ruppersberger’s needs.

Morell responded with concern about whether Petraeus would approve the document, even after other agencies had signed off.

“Please run the points by the Director, then get them to HPSCI,” he wrote soon after. “I spoke to the Director earlier about State’s deep concerns about mentioning the warnings and the other work done on this, but you will want to reemphasize in your note to DCIA.”

Morell was right to be worried.

In an e-mail sent two hours later to Morell and others inside the agency, Petraeus wrote, “No mention of the cable to Cairo, either? Frankly, I’d just as soon not use this, then. . . [National Security Council] call, to be sure; however, this is certainly not what Vice Chairman Ruppersberger was hoping to get for unclas use.”

Asked about Petraeus’s warning, Ruppersberger said, “I’m not sure what he meant. I had no expectations.”

It appears, then, that Petraeus tried to use Ruppersberger’s request (which, I suspect, we’ll one day learn wasn’t all that spontaneous) as an opportunity to introduce new issues into the discussion, basically to save his own ass.

It sure looks like Petraeus was more involved in creating the opportunity for the talking points controversy than we have thus far confirmed.

The same day that the White House released 94 pages of Benghazi emails, which not only show that most at CIA supported the talking points used by the Administration but also include annotations of the CIA roles involved that reveal far more about CIA’s structure than any FOIA response I’ve ever seen, Tommy Vietor went on the record about UndieBomb 2.0 with both the WaPo and MSNBC. It appears he did so to reinforce the fear-mongering language Eric Holder used (though like Holder, Vietor doesn’t explain why John Brennan got a promotion after contributing to such a damaging leak). He said this to WaPo.

Vietor said that it would be a mistake to dismiss the unauthorized disclosure because al-Qaeda failed to carry out its plot.

“We shouldn’t pretend that this leak of an unbelievably sensitive dangerous piece of information is okay because nobody died,” he said.

But the WaPo account also seems to serve (like the Benghazi email dump does) to place blame on CIA.

It answers a question I hinted at yesterday: whether the CIA and White House were on different pages on what to do with the AP story. Reportedly, after AP had given the CIA time to kill Fahd al-Quso (the WaPo doesn’t mention that was the purpose of the delay), CIA’s Mike Morell told the AP the security issue had been addressed, but asked for one more day. As AP considered that request, the White House overrode that discussion.

Michael J. Morell, the CIA’s deputy director, gave AP reporters some additional background information to persuade them to hold off, Vietor said. The agency needed several days more to protect what it had in the works.

Then, in a meeting on Monday, May 7, CIA officials reported that the national security concerns were “no longer an issue,” according to the individuals familiar with the discussion.

When the journalists rejected a plea to hold off longer, the CIA then offered a compromise. Would they wait a day if AP could have the story exclusively for an hour, with no government officials confirming it for that time?

The reporters left the meeting to discuss the idea with their editors. Within an hour, an administration official was on the line to AP’s offices.

The White House had quashed the one-hour offer as impossible. AP could have the story exclusively for five minutes before the White House made its own announcement. AP then rejected the request to postpone publication any longer.

This must be the crux of the animosity here. CIA told AP the danger had passed (though according to some reports, our informant was still in Yemen). At that point, the AP should have and ultimately did feel safe to publish. But then the White House made this ridiculous request, effectively refusing to let AP tell this story before the White House had a shot at it.

Which is why this claim, from Tommy Vietor, is so absurd.

But former White House national security spokesman Tommy Vietor, recalling the discussion in the administration last year, said officials were simply realistic in their response to AP’s story. They knew that if it were published, the White House would have to address it with an official, detailed statement.

“There was not some press conference planned to take credit for this,” Vietor said in an interview. “There was certainly an understanding [that] we’d have to mitigate and triage this and offer context for other reporters.”

Jeebus Pete! If your idea of “mitigating and triaging” AP’s fairly complimentary story is to make it far, far worse by hinting about the infiltrator, you’re doing it wrong!

Vietor, who presumably had a role in setting up the conference all at which Brennan tipped off Richard Clarke (though according to Brennan, he did not sit in on the call), insists to MSNBC that telling someone we had “inside control” of this plot does not constitute a gigantic clue that the entire plot was just a sting.

Tommy Vietor, then chief national security spokesman for the White House, disputed the idea that Brennan disclosed sensitive details in his background briefing and said  it was “ridiculous” to equate Brennan’s use of the  phrase  “inside control” with having an “informant.”

It’s a nonsense claim, of course. Someone fucked up the “mitigating and triaging” process, and that’s what made this leak so dangerous, not AP’s initial story. But, presumably because AP didn’t let White House tell the official story before they reported their scoop (and did they plan on telling us all we had inside control on the op if they got to tell the story first?!?), the AP has, as far as we know, borne the brunt of the investigation into the leak.

For the moment let me reiterate two more details.

It appears that Vietor is blaming CIA for the way this went down. And guess what? The guy who blathered about “inside control” has now taken over the CIA.

Then there’s this. Eric Holder noted yesterday that the investigation into David Petraeus for leaking classified information — understood to be limited to his mistress Paula Broadwell, mind you — is ongoing. That means the FBI interview he had on April 10 was not sufficient to answer concerns about his involvement in leaking classified information.

It’s interesting this is coming down to a conflict between White House and CIA, isn’t it?

As I was watching the Eric Holder hearing and news came out that the White House had released 94 pages of Benghazi emails, I thought at first it was a strategy of whack-a-scandal. The Benghazi scandal is not one; the AP and IRS stories are genuinely damning (though not of the White House per se).

But I predict — and this is just a wildarseguess — that the White House is about to deliver the coup de grace to the Benghazi scandal.

Eric Holder was asked several times (always by Republicans, of course) whether the FBI had let the trail run cold in the Benghazi attack. In response to Jason Chaffetz (one of the chief Bengazhi truthers), Holder suggested that DOJ would imminently announce major progress on the investigation. There were a few more questions, and then Ron DeSantis, who is a very smart but very crazy former JAG who worked with the SEALs asked again.

And Holder — perhaps getting a bit cocky and/or impatient answering one of the last questioners in an interminable hearing — suggested again (this is from memory; I was just getting off the phone) there would be an imminent announcement showing significant progress. DeSantis, who missed that hint but at least knows the boundary between military and civilian law, asked whether it would be military progress or DOJ. Holder announced that something involving their portfolio would show progress.

Again, I’m guessing, but I would bet a fair amount of money one of the main conspirators in the Benghazi attack is sitting somewhere being interrogated by FBI’s High Value Interrogation Group as we speak.

So the way this will roll out is there will be about 2 days of manic scrutiny of the emails, and then just as people begin to get into the nitty gritty that might go further than refuting what the GOP has already leaked, the White House will announce the arrest of the guy that, Holder knows, is already in custody.

Just a prediction, but …

Things are becoming clearer day by day in Libya. groups and brigades are polarizing along Islamist-jihadist-secular lines

US drones are not only hovering all the time over eastern Libya, they also bombed a training camp run by Abdulbasit  Azuz, a commander from Dernah.

Yes, you heard that right, US drones are bombing Libya already

The above June 8, 2012 quote, apparently from a extremist discussion board, is among the materials (see PDF 119) the State Department used to investigate the Benghazi attack (Darrell Issa released them after last year’s Benghazi hearing). While the screen cap of the discussion entry comes with no explanation, it appears to show someone at State was tracking the rise of extremists in real time, particularly the day after an earlier IED attack on the US mission in Benghazi claimed by the Imprisoned Sheikh Omar Abdul-Rahman Brigades (see PDF 110 for State’s description of that).

But it wouldn’t take reading Jihadist sites to understand what they were saying the summer before the September 11 attack on Benghazi. CNN’s June 7 coverage of the attack on the mission included many of the same details.

A senior Libyan official told CNN that the U.S. is flying surveillance missions with drones over suspected jihadist training camps in eastern Libya because of concerns over rising activity by al Qaeda and like-minded groups in the region but said that to the best of his knowledge, they had not been used to fire missiles at militant training camps in the area.

The revelation follows a failed attack on the U.S. Mission in Benghazi on Tuesday night, which a shadowy jihadist group claimed was to avenge the death of al Qaeda No. 2 Abu Yahya al-Libi.

The official said that one militant commander operating in Derna, Abdulbasit Azuz, had complained that a drone strike had targeted his training camp in the east of Libya.  Last month, there were reports of explosions outside the Derna area in the vicinity of the camps, according to a different source.

[snip]

The senior Libyan official said it would be bad if such a strike had occurred. He added that the Americans’ use of drones in a surveillance capacity had been discussed at the top level of the transitional Libyan government.

As CNN has reported, Azuz is a senior al Qaeda operative and longtime close associate of the group’s leader, Ayman al-Zawahiri, who was dispatched to Libya from the tribal areas of Pakistan in spring 2011, according to several sources.  There, he subsequently recruited fighters.

[snip]

The jihadist group that claimed responsibility for the failed attack on the U.S. Mission in leaflets left at the scene called itself the Imprisoned Omar Abdul Rahman Brigades. It promised more attacks against American interests.

It was first heard from late last month, when it claimed responsibility for an attack on a Red Cross office in Benghazi. A purported video of the attack was apparently posted on jihadist websites that regularly feature statements by al Qaeda. The video showed several rockets being fired into a building at night.

While CNN doesn’t make an explicit connection between the bombing of the Benghazi mission and US surveillance (and claimed drone attack) in Derna, the implication is they’re related, particularly as they track Libyans with ties to core al Qaeda (CNN also discusses former Gitmo detainee Sufian bin Qumu’s presence in Derna) responding to the drone killing in Pakistan of Abu Yahya al-Libi on June 5.

So on June 5 we killed Abu Yahya in Pakistan, on June 6 an unknown militia attacks the compound in Benghazi in retaliation and promises more attacks, on June 7 discussions of the attack tie back to claims we launched a drone strike in Derna.

On September 10, 2012, the day before the Benghazi attack, Ayman al Zawahiri, who had sent Azuz to Derna to set up an al Qaeda presence the year before, confirmed the death of Abu Yahya.

I lay all this out because, even as State and CIA continue to bicker over who is responsible for the bureaucratic failures that led to Ambassador Stevens’ death in Benghazi, there seems to be larger underlying issues that remain unspoken.

That’s a claim made explicitly in the ebook by two former Special Operations fighters that purports to present the “Definitive Report” on Benghazi (and described here). The book has its limitations: it presents a very CIA-friendly view (in part because it’s written to champion the two CIA contractors who were killed in the attack), and as such obscures many of the actions and inactions from militia and contractors leading up to the attack.

It suggests the attack on Benghazi was largely blowback from JSOC operations run out of the White House.

Meanwhile, JSOC counterterrorism operations began sometime in mid-summer 2012, when the organization started putting “boots on the ground” inside Libya.

[snip]

The nature of these operations remains highly classified. They were never intended to be known to anyone outside a very small circle in the Special Operations community and within Obama’s National Security Council. Ambassador Stevens, the CIA Chief of Station in Tripoli, and then-Director, General Petraeus, had little if any knowledge of these JSOC missions.

The book goes onto blame John Brennan, by name, for not alerting CIA and State within Libya to what JSOC was doing (the ebook was released the week Brennan’s confirmation process started, though was not mentioned explicitly in open hearing).

Kept in the dark about these compartmentalized JSOC operations the CIA was caught off-guard by the Ansar al-Sharia retaliation. They had no idea that Special Operations missions would be kicking the hornets’ nest in Libya and therefore could not prepare for the fallout that would result.

[snip]

Because John Brennan is running his own private war, he is not going through the normal chain of command, and operations are not deconflicted. Ambassador Stevens, for example, was not read into the JSOC operations in Libya. Likewise, the CIA never knew what hit them.

[snip]

Ambitious bureaucrats like John Brennan need to be reined in or fired if these operations are to be successful, or we will see plenty more Benghazis happen.

It also speculates in suggestive fashion about Bin Qumu.

Given that Bin Qumu was released from Gitmo before taking control of Ansar al-Sharia, one must ask whether or not American intelligence services had “flipped” him while he was held in duress while at the Guantanamo Bay prison facility. Is the Libyan terrorist a double, or even triple agent?

There are a number of reasons that I won’t go into why I think the suggestion that Bin Qumu had been flipped is not at all far-fetched (here’s an earlier post I did on Bin Qumu).

But as to whether it’s credible to claim CIA was not read into operations that were pissing off militias in eastern Libya, remember the claim David Petraeus’ mistress, Paula Broadwell, made in a speech attempting to defend his role in Benghazi, two weeks before he resigned in disgrace.

Now, I don’t know if a lot of you heard this, but the CIA annex had actually, um, had taken a couple of Libyan militia members prisoner and they think that the attack on the consulate was an effort to try to get these prisoners back. So that’s still being vetted.

The challenging thing for General Petraeus is that in his new position, he’s not allowed to communicate with the press. So he’s known all of this — they had correspondence with the CIA station chief in, in Libya. Within 24 hours they kind of knew what was happening.

[snip]

As a former intel officer it’s frustrating to me because it reveals our sources and methods. I don’t think the public necessarily needs to know all of that.

See also this post, which maps how Fox’s reporting on the same subject changed over time, but also considers how the reported presence of prisoners at the CIA mission affected militias’ willingness to help defend the State and CIA compounds. Fox suggests that CIA’s hand-picked militia, February 17 brigade, used the attack to free captives, rather than defend Americans. (Remember, too, that Ambassador Stevens was taken to a hospital guarded by Ansar al-Sharia; how he was located and his body reclaimed is one of the vaguest parts of any of the accounts of the attack.)

As to Broadwell’s blabbing about detainees at the CIA annex in Benghazi, as recently as April 10, Petraeus was being interviewed by the FBI about whether he shared classified information with Broadwell.

Now, as a threshold matter, note the language Broadwell used. She didn’t say CIA was holding two militia figures. She said the CIA annex had taken them prisoner.

CIA’s response to Broadwell’s blabbing was to issue the same kind of non-denial denial they issued after Jeremy Scahill revealed CIA surrogates were operating a prison for the Agency in Somalia.

The CIA has not had detention authority since January 2009, when Executive Order 13491 was issued. Any suggestion that the Agency is still in the detention business is uninformed and baseless.

See also this tweet, repeating CIA’s denial that the Agency itself was holding prisoners.

Now, in her comments, Broadwell seems to suggest Petraeus learned about detainees in Benghazi within 24 hours of the attack.

But just days after she would blab about the trip and just days before he resigned in disgrace, Petraeus took his own fact-finding trip to Libya, even as Deputy CIA Director Mike Morrell was in Langley spinning out CIA’s defense. Yet, in spite of the fact that Petraeus took the trip ostensibly to prepare for Congressional testimony, the intelligence committees had trouble getting a copy of his trip report, and Petraeus tried to back out of testifying about the trip personally. Not only does this feel like a concerted effort to withhold what he learned from Congress, but if the CIA Station Chief told Petraeus something significantly different in person in October from what he told him via cable on September 12, I can see why Petraeus might use his resignation as an excuse not to tell Congress.

I’m wondering, too, whether this relates to Mac Thornberry’s attempt to assure everyone there’s sufficient oversight over JSOC kill-or-capture missions; if Brennan kept JSOC ops in Libya that blew up on us too closely held, Thornberry would likely have been one of the few to have been read into them. Remember that the government keeps refusing to tell Ron Wyden all the countries where we’ve been running targeted killing missions.

And remember, too, that Petraeus’ first reaction to Benghazi was to ask for more drones, a request that John Brennan approved.

Now, I don’t know whether Petraeus’ behavior makes the claim that he and the Station Chief weren’t read into what was going on in eastern Libya more or less likely.

But Petraeus’ role in this has always been creepy, from when he refused to attend the memorial services for the CIA contractors killed in the attack to when he ostentatiously attended the Argo premiere the night of Darrell Issa’s first hearing on Benghazi. And it is clear that Petraeus’ efforts to spin his own role, and that of CIA, in this really pissed off the rest of the National Security establishment.

Given that Petraeus appears to be willing to reopen this issue, we might one day find out the underlying explanation for Benghazi.

It has taken three days for the bleating press corps in DC to wade through the roll-out of Benghazi talking point emails and realize that the tension behind the emails — as has been clear from just days after the attack — is that Benghazi was really a CIA, not a State, Mission, and therefore CIA bears responsibility for many of the security lapses. So State, in making changes to the emails, was making sure it didn’t get all the blame for CIA’s failures.

David Corn describes it this way.

The revisions—which deleted several lines noting that the CIA months before the attack had produced intelligence reports on the threat of Al Qaeda-linked extremists in Benghazi—appear to have been driven by State Department spokesperson Victoria Nuland, who, it should be noted, is a career Foggy Bottomer who has served Republican and Democratic administrations [ed: including Dick Cheney], not a political appointee. Her motive seems obvious: fend off a CIA CYA move that could make the State Department look lousy.

Yet it’s only now, several days into this frenzy, that some reporters are coming to report this.

And they’re still not noting ways in which the CIA’s initial emails were self-serving. For example, when the CIA said,

Since April, there have been at least five other attacks against foreign interests in Benghazi by unidentified assailants, including the June attack against the British Ambassador’s convoy. We cannot rule out the individuals has [sic] previously surveilled the U.S. facilities, also contributing to the efficacy of the attacks.

They might have also said, “since February, people tied to CIA’s mission have twice been harassed by militia members, suggesting our OpSec was so bad they knew we were in Benghazi.”

And when CIA’s talking points said,

The crowd almost certainly was a mix of individuals from across many sectors of Libyan society. That being said, we do know that extremists with ties to al-Qa’ida participated in the attack.

They might also have said that the “trusted” militia, February 17 Brigade, trained by David Petraeus’ CIA, whose career legacy is based on false claims of successfully training locals, appears to have allowed the attack to happen (and, critically, delayed CIA guards from heading to the State mission to help).

Note that Congressman Frank Wolf is just now showing some interest in why CIA’s vetting of the militia central to the mission’s defense was so bad. Maybe if CIA had included that detail in their self-serving initial talking points, Congress would have turned to this issue more quickly, particularly since we’re currently training more potentially suspect militias in Syria.

In other words, the story CIA — which had fucked up in big ways — wanted to tell was that it had warned State and State had done nothing in response (which, perhaps unsurprisingly, is precisely the story Darrell Issa and Jason Chaffetz are trying to tell). The truthful story would have been (in part) that CIA had botched the militia scene in Benghazi, and that had gotten the Ambassador killed.

Yet that appears to be just the half of the self-serving function this email release has had for CIA.

Consider how this rolled out. While ABC got the credit for the scoop, Cheney propagandist Stephen Hayes first published some of the emails (which ABC notes). Then Hayes did a follow-up story that was downright literary, a tribute to its maligned hero, David Petraeus.

CIA director David Petraeus was surprised when he read the freshly rewritten talking points an aide had emailed him in the early afternoon of Saturday, September 15. One day earlier, analysts with the CIA’s Office of Terrorism Analysis had drafted a set of unclassified talking points policymakers could use to discuss the attacks in Benghazi, Libya. But this new version​—​produced with input from senior Obama administration policymakers​—​was a shadow of the original.

Hayes’ new story is one depicting Petraeus’ disappointment when his (self-serving and deceptive) preferred narrative did not survive review by the Department whose Ambassador Petraeus’ Agency had gotten killed. It emphasizes the enemy the CIA would like to highlight — Ansar al-Sharia — and not Petraeus’ militia whose inaction had been at least as important to the success of the attack. It claims (this entire campaign being evidence to the contrary) that Petraeus resigned himself to the messaging decisions the Administration made.

Finally, importantly, it at least appears to rely explicitly on the personal account of Petraeus himself.

This candid, real-time assessment from then-CIA director Petraeus offers a glimpse of what many intelligence officials were saying privately as top Obama officials set aside the truth about Benghazi and spun a fanciful tale about a movie that never mattered and a demonstration that never happened.

David Petraeus, who tried and failed to get his preferred spin of the attack in Benghazi accepted by the Obama Administration, who subsequently got fired, purportedly for fucking and possibly sharing classified information with his mistress, went to Dick Cheney’s propagandist to try to get his preferred spin adopted after the fact.

That’s what this Benghazi campaign has become.

One more detail. Hayes suggests he got this (and therefore, presumably, so did ABC) from a leaked version of a report the GOP did based in part on the emails GOP Senators on the Senate Intelligence Committee got in exchange for letting John Brennan’s nomination to replace David Petraeus at CIA move out of committee.

The exchange of emails is laid out in a 43-page report from the chairmen of five committees in the House of Representatives.

[snip]

The White House provided the emails to members of the House and Senate intelligence committees for a limited time and with the stipulation that the documents were available for review only and would not be turned over to the committees. The White House and committee leadership agreed to that arrangement as part of a deal that would keep Republican senators from blocking the confirmation of John Brennan, the president’s choice to run the CIA.

Just as an aside, remember that the Administration preferred to turn over these emails — which predictably got leaked contrary to the agreement Senators made — rather than turning over OLC memos that SSCI ought to have in any case.

And now John Boehner is demanding the White House agree to release these emails publicly.

So Senate Intelligence Committee, to GOP report, to Cheney’s propagandist, and after a subpoena threat, public release.

Let me ask you: aside from the fact that Benghazi is a good fundraising vehicle, why did the GOP want these? More importantly, how do you think Saxby Chambliss and his friends knew to demand these emails?

It’s almost as if a little birdie — the guy who was fired, making way for John Brennan to take over — told Republicans in Congress the emails were there.

There are many more ironies and underlying issues, which I hope to cover in Part Two. But for the moment, note how neatly this all serves to let David Petraeus tell the story he tried to tell just before he got fired.

NPR’s Carrie Johnson, ACLU’s Jameel Jaffer, and I discussed yesterday whether the Administration decided to blow off the House Judiciary Committee panel on targeted killing because appearing and answering questions might compromise their uncompromising stance in the targeted killing FOIA.

It’s a point Ben Wittes made in a response to my query from yesterday,

I can’t imagine what kind of stupidity drove the decision to blow off the committee.

(Note, thanks to Wittes for displaying my potty-mouth in its well-celebrated glory; MSNBC Lawfare is not.)

In which he suggests both John Brennan’s nomination and ACLU’s FOIA may have driven that decision.

I can imagine two reasons, though I agree with Marcy that it was stupid—and, I will also add, wrong—of the administration to stiff the committee. The first is John Brennan’s pending confirmation. The last thing administration wants right now, prior to a Senate vote on Brennan, is to create a forum in which officials get more questions on targeted killings.

The second reason, as I said at the hearing, is FOIA litigation. Every disclosure prompts more demands for more disclosures and prompts arguments that material is not, in fact, secret. So there’s a hunker-down-and-say-nothing mentality that has kicked in. As I say, it’s wrong. And as the tone of yesterday’s hearing—where Republicans and Democrats alike were clamoring for judicial review of targeting decisions—shows, the administration has a lot of work to do with Congress if it means to maintain confidence in its policies—work that will have to be done, at least in part, in public. But it’s not hard, in my opinion, to imagine what’s behind it.

First, with regards to Brennan’s nomination, I present this:

The Senate intelligence committee on Wednesday postponed until next week a vote on the confirmation of White House aide John Brennan to be CIA director, dashing hopes of Democratic leaders who had hoped to have a vote on Thursday.

[snip]

No explanation for the delay was immediately available. However, the Obama administration has been at odds with members of the committee’s Democratic majority over White House unwillingness to disclose some highly classified legal documents related to “targeted killings,” including the use of lethal drone strikes against suspected militants.

[snip]

On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.

On Tuesday, the Administration shared the Benghazi emails with the Benghazi Truthers, which had been their plan to move Brennan’s nomination forward without turning over any more memos. And while some Republicans, just moments after they received the emails, made a mild stink about Brennan’s thoroughly predictable involvement in efforts to craft talking points about the attack, by Wednesday, that already proved insufficient to move the nomination.

By Wednesday, the Administration was sharing more information on the memos, not Benghazi. And then, after sharing such information, we learn the Administration has been left to stew over the weekend.

Now, perhaps the leaks to National Journal changed the game:

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.

In response to which an anonymous official who looks like Tommy Vietor made dickish comments about how unreasonable it would be to let the Senate Intelligence Committee exercise oversight and how mean it is to use confirmations to insist on being able to do so because it just feeds into Republican plots.

An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

Perhaps senior administration officials leaking information presumably contained in the memos to the NYT didn’t help matters.

And while lofty Senators on Intelligence Committees usually couldn’t give a damn about lowly Congressman on Judiciary Committees, I can’t imagine yesterday’s hearing helped. Because in that hearing, a bunch of very partisan Republicans made a case that will be credible to moderates and civil libertarians like me (not to mention, really feed the Tea Partiers) that the Administration is abusing its power, both in regards to the way it is treating Congress, but also in its claims to potentially unchecked authority. (Note, on that front, I owe HJC Chair Bob Goodlatte an apology: it was a well-run and well-crafted hearing.)

With the Talking Point emails shared, Benghazi is frittering out, and the Republicans will need a new scandal to fundraise off of. And a potential fight over whether or not the President has to say whether he thinks he can kill Americans in America has the distinct advantage over both Fast and Furious (their most successful scandal to date) and Benghazi (which wasn’t nearly as successful) in that people across the political spectrum (save those who think Obama should be trusted with this authority because, well, he’s trustworthy) may think it’s reasonable.

That is, while (some) Republicans may only be picking this up because it demonstrates the Administration’s double standard with respect to the Bush Administration, or because their prerogatives have been slighted, or because they figure this paranoid level of secrecy might be hiding real misconduct, the targeting killing memos are close to reaching a tipping point at which they turn into a real political issue.

And that may be what the Administration will be stewing over this weekend.

In the face of that threat, then, there’s just the FOIA. Mean old ACLU Legal Director Jameel Jaffer, FOIAing for more information on the President’s authority to kill Americans (and also, it should be said, helping the Awlaki and Khan families sue for wrongful death). How dare he do that, even if John Brennan, in one of the Administration’s key counterterrorism speeches, emphasized how important presumptive disclosure on FOIA was?

Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

[snip]

The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

So what if John Brennan says the terrorists will win if the Administration plays stupid games with FOIA? There are lawsuits to be won, damnit!

Now, I have no doubt that the Administration might delay Congressional oversight solely to gain an advantage over the ACLU. Not only did Daniel Klaidman’s sources reveal such suits were at the forefront of their considerations when deciding not to be as transparent as promised, but it appears the Administration already delayed Congressional oversight so as to gain an advantage in ACLU’s FOIA suit.

So yes, it is likely that is one of the reasons DOJ chose to snub the Committee, thereby making this issue more of a political issue.

But it seems the Administration has lost all perspective about how those FOIAs might play out. That’s true, as Jack Goldsmith pointed out, because even if a judge rules that the Administration has revealed what it has been trying to avoid revealing, it’s not the end of the FOIA world for them.

But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes?  What would the ACLU gain, since the whole world already knows this fact?  Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request.  But at that point the government would have further legal options for non-disclosure.  As I once explained:

Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7^th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).

Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks.  But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).

I’d add that, at least in the 2nd Circuit, the Administration seems to be protected by overly broad protection for the Memorandum of Notification that authorizes targeted killing and everything else.

And unless there are really big disclosures in there that even I can’t imagine (plus, who besides me is going to look that closely?), there’s simply nothing that will come out in FOIA that will be more damaging than inciting the Republicans to turn this — a real example of abuse of power — into their next political scandal.

Trust me, Obama folks, you made the wrong calculation here, and you’d do well to reverse course before it’s too late.

Though I will make one final caveat.

I don’t think the FOIA could be all that damaging to the Administration.

But I do think the wrongful death suit might. This discussion will make it very hard for the Administration to dismiss of this counterterrorism suit the same way they have every other one, by invoking state secrets (and while there might be standing issues, particularly for Nasser al-Awlaki, Sam Alito won’t be able to suggest the Awlakis and Khans can’t prove their family members were killed in a US drone strike). And having lost the veil of state secrets, there are all sorts of issues that might come out, both about Awlaki’s history, and about why the FBI let Samir Khan leave when every other known radical trying to head to Yemen gets arrested before he boards a plane.

And, quite simply, if they can’t prevent Khan from pursuing this wrongful death suit, some interesting legal conclusions.

So while I think to the extent the Administration is still stalling Congress because of the FOIA, they’re crazy. If that’s the case, they’d be risking giving Republicans a really dangerous issue to politicize next.

All that said, I think the wrongful death suit may present real issues for them, particularly as this information becomes more public. But if it does, then it just serves to prove that the case for killing Awlaki and Khan and Abdulrahman doesn’t withstand legal review.

Particularly given some of the rumors about what the CIA was doing in Benghazi when Ambassador Chris Stevens got killed, I wonder whether this question — from the follow-up to John Brennan’s confirmation hearings — pertains to Benghazi.

In your responses to the Committee’s pre-hearing questions, you wrote that Chiefs of Mission must be kept fully and currently informed of the activities of U.S. government agencies in their countries, consistent with the provisions of 22 USC 3927. That statute also requires that U.S. Ambassadors “shall have full responsibility for the direction, coordination, and supervision of all United States Government officers and employees in that country,” and that “any department or agency having officers or employees in a country shall… comply fully with all applicable directives of the Ambassador.

Is it your understanding that intelligence activities are subject to the approval of the Chief of Mission?

Yes. Pursuant to the President’s instruction, codified in a 1977 agreement between the Department of State and the CIA, the Chief of Mission has a responsibility to express a judgment on all CIA activities in his or her country of accreditation in light of U.S. objectives in the host country and in the surrounding areas and to provide assessments on those activities to Washington. Further, if the Chief of Mission believes a CIA activity might impair U.S. relations with the host country, the Chief of Mission may suspect a CIA or other intelligence activity. If disputes arise between the Chief of Mission and the Chief of Station that cannot be resolved locally, they are referred to Washington for adjudication by Principals. In order to enable the Chief of Mission to meet these responsibilities, the Chief of Station must keep the Chief of Mission fully and currently informed of CIA activities in the host country (unless the President or Secretary of State has directed otherwise).

“Unless the President or Secretary of State has directed otherwise.” A rather big caveat.

MInd you, this question could be as much about Pakistan as it is about Libya. After all, the Pakistan exception to the drone rulebook arose, in part, because of Cameron Munter’s past objections to the drone strikes in Pakistan. Nevertheless, as written, the drone rulebook appears to let the CIA — that is, John Brennan, once he is confirmed — to do whatever he wants with drones in Pakistan.

None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.

Imposing the playbook standards on the CIA campaign in Pakistan would probably lead to a sharp reduction in the number of strikes at a time when Obama is preparing to announce a drawdown of U.S. forces from Afghanistan that could leave as few as 2,500 troops in place after 2014.

Officials said concerns about the CIA exemption were allayed to some extent by Obama’s decision to nominate Brennan, the principal author of the playbook, to run the CIA.

None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.

Imposing the playbook standards on the CIA campaign in Pakistan would probably lead to a sharp reduction in the number of strikes at a time when Obama is preparing to announce a drawdown of U.S. forces from Afghanistan that could leave as few as 2,500 troops in place after 2014.

Officials said concerns about the CIA exemption were allayed to some extent by Obama’s decision to nominate Brennan, the principal author of the playbook, to run the CIA.

So it’s not clear what weight Brennan’s answer has given that it appears the President has already written an exception for Pakistan and drones.

All that said, given the many reports that Chris Stevens didn’t know what the CIA (or, allegedly, Brennan, running ops out of the White House) was doing in Benghazi, I find DiFi’s effort to get Brennan on the record on this question rather interesting.

Dianne Feinstein announced yesterday that the Senate Intelligence Committee would not, as originally planned, vote on John Brennan’s nomination today. No Valentine’s Day love for Brennan I guess.

DiFi cited outstanding questions on Benghazi and the 7 OLC memos the White House has withheld.

That’s important background to this Joshua Hersh story, which makes fun of Richard Burr (who had just made a joke about his relative Aaron Burr killing Alexander Hamilton) grilling Jack Lew about who briefed Obama on Benghazi the night of the attack. As Hersh points out, the White House has released a picture showing Denis McDonough briefing the President that day, which ought to answer Burr’s question.

What Hersh doesn’t say is that Burr specifically asked Lew whether Brennan was in this loop. In the closed session on Tuesday, apparently, Brennan said he wasn’t. This comes on top of the White House withholding — at least as of last Thursday — Presidential Daily Briefs and some emails about the response to Benghazi as it unfolded.

Now, Lew’s role in Benghazi briefings really won’t affect his job as Treasury Secretary. But Brennan’s role might, particularly if the Murdoch boosted eBook alleging he was running ops in Libya out of the White House is true (I’m not saying it is).

In any case, the persistence of the Benghazi truthers has introduced an interesting dynamic I didn’t expect. Of the Republicans on the Senate Intelligence Committee, only Susan Collins and possibly Tom Coburn are not full-on Benghazi truthers (and James Inhofe, who gets a vote if he wants one as Armed Services Committee Ranking member, could add another truther vote).

But Collins is part of the other group — along with at least Ron Wyden and Mark Udall — holding up Brennan’s nomination, those demanding the 7 OLC memos on targeted killing the White House has thus far refused to turn over to the Committee purportedly overseeing these killings. That puts the vote somewhere in the vicinity of 9 votes holding out for something from the White House, 6 votes ready to vote Brennan’s nomination forward.

So who will the White House cede to? The Benghazi truthers, or the OLC holdouts? And is what is in the material the White House has thus far withheld enough for these groups to vote against Brennan?

Note, there’s always the possibility these groups will converge. The public record supports the conclusion that Libyan militants in Derna claimed to have been struck or at least surveilled by a drone. Those militants have ties, at least, to the militants who carried out the attack on the Benghazi post, and the public record also supports the claim the militants were avenging that drone surveillance or strike.  If that drone was approved by an unknown memo authorizing continued strikes in Libya, it would be something that both the Benghazi truthers and the OLC holdouts would be interested in.

As I said earlier, the main gist of the Petraeus tapes–Roger Ailes’ attempt to get him to run for President–is neither shocking nor all that interesting (though it is amusing).

But I can’t help but laugh at the irony of this detail. As Petraeus tries to explain to a rather thick Kathleen MacFarland why he thinks the CIA Director job would be “a quite significantly meaningful position,” he talks about the Libya intervention. He starts that discussion by predicting that CIA will run much of what we do in Libya (remember, this conversation took place on April 16, 2011, just after the US ostensibly turned the Libyan war over to NATO, but six months before Qaddafi was killed).

Petraeus: Well, look, I mean, I can do math and reason, as well. But an awful lot of what we do in the future — believe it or not in Libya, right now, perhaps . . .

Q: Yeah.

Petraeus: . . . is what that organization can do.

He then tries to explain to MacFarland that the CIA is a national treasure (It takes Petraeus several times before he gets her to understand he’s talking about the CIA, not Libya or covert ops generally).

Petraeus: Well, so we’ll see what happens. Look, he gets to pick the chairman he wants, and the guy he’s comfortable with. That’s the deal. And if they’re uncomfortable with a guy who they know will be heard, then okay, so be it. That’s his choice.

Q: But you’re looking at something like the other one as potentially where you make the difference in Libya.

Petraeus: I think you can make a huge difference. I think that’s a national asset — I think it’s a treasure.

Q: Libya?

Petraeus: No, I’m talking about the organization.

Q: Oh, you mean covert ops.

Petraeus: I think that organization is full of just, heroes. Unsung heroes, which is the way they want to be. And again, so . . .

He then makes a more interesting move (most of which she again misses). “We’re not going to do much more,” says the Neocon looking for more countries to overthrow, but we “did Libya.”

Q: And I agree with you. With the Arab Spring, you lose or you win it on covert . . .

Petraeus: If you look at . . . we’re not going to go out, do much more, I don’t think — I mean, I was surprised we did Libya.

Q: Oh, that was insane.

And so if we’re only going to overthrow countries via covert means rather than hot wars, it means DOD’s budgets will be cut.

Petraeus: I mean, we’ve got . . . so if that’s the extent of what we’re going to do, we’re going to be retrenching militarily.

Petraeus: Again, you’re going to take big budget cuts, and it’s going to be all about . . . it’s going to be the post-, sort of the early 1990s kind of stuff.

And what’s the fun of being a top General during a time of budget cuts, after all?

But if DOD’s budget is getting cut, it will mean CIA’s budget will grow (this time it takes Petreaus four tries to get this through to her; really, does Fox pay this woman? She’s an “analyst”??).

Q: Yeah. It’ll be the “peace dividend” after Iraq, and after Afghanistan, it’ll be the peace dividend. Libya is a little bit of a screw-up on that.

Petraeus: Yeah. Yeah. But on the other hand, the other folks — on the other hand — I think are going to be in a growth industry.

Q: You mean Obamacare . . .

Petraeus: No, intelligence.

Q: Oh, the bad guys?

Petraeus: Yeah, the intelligence community, I think, is going to be . . .

Q: The bad guys, or our — you mean our intelligence community?

Petraeus: Our intelligence community. Going to have to be. I mean, there’s so much going on.

Effectively, David Petraeus was explaining his MOAR DRONZ policy to MacFarland before he even accepted the CIA job.

But he was also justifying the CIA job by noting that Libya would be where we “do” things, the next Muslim country to “do.”

David Petraeus wanted the CIA job because that’s where he could “do” what he had claimed to “do” in Iraq and was failing to “do” in Afghanistan. The next place to win glory, the shores of Tripoli.

A pity he fucked that up, eh?

I mean, while everyone swears up and down that the Benghazi attack had nothing to do with Petraeus’ departure, because his departure coincided with the assessment of what happened in Benghazi, it has elicited an assessment of Benghazi in conjunction with Petraeus’ two earlier “victories.” That comparison suggests that in fact, the glorious General may have failed three times at the important work of training local militias.

Moreover, while CIA appears to still own the next “do”–Syria–the fuck-ups in Benghazi now serve as an excuse to put DOD in charge of CIA’s job.

Not only that, but commentators are asking whether we really want CIA in charge of these “dos”–at least the paramilitary side of it–after all.

Petraeus was right that intelligence was the growth industry. But that was premised on the continued success of the Libyan adventure. And the last thing that happened while Petraeus had the “quite significantly meaningful position” of running Libya is that CIA failed in its central HUMINT mission, much less the work of keeping safe the State figures who provided cover for the CIA folks “doing” Libya.

It seems Petraeus looked forward to (or at least claimed to look forward to) the CIA job as a “quite significantly meaningful” place to cap his career. But just before he diddled himself out of office, the Petraeus-led CIA had a significant setback in that work.

WSJ has a tick-tock of how the talking points on Benghazi developed. It confirms two of the things I noted yesterday. The Intelligence Community developed the talking points behind the pseudo-scandal pursuant to a request from Dutch Ruppersberger.

Later on Sept. 13, then-director David Petraeus presented the CIA’s initial findings to the Senate Intelligence Committee. His conclusions mirrored that morning’s intelligence reporting. He said the attack began “spontaneously” following the protest in Cairo over the video. He also discussed the reports of involvement of Ansar al-Sharia and the al Qaeda affiliate and called the assault a terrorist attack.

Mr. Petraeus presented the same findings the next day to the House intelligence panel, whose top Democrat, Maryland Rep. C.A. “Dutch” Ruppersberger, requested unclassified talking points for lawmakers to use when speaking about the attack.

And the IC decide to withhold the information about a tie to AQIM in part because they were NSA intercepts.

After rounds of bureaucratic exchanges, the CIA officials seeking to remove al Qaeda won the argument, and officials agreed to retain the umbrella term “extremists” but drop the mention of al Qaeda.

The term represented a hedge the CIA used because the attack’s links to al Qaeda had yet to be confirmed. This argument was that including the name would have required additional wording to indicate uncertainty about the al Qaeda links—language that could have opened additional avenues for misinterpretation.

The information was derived from what was seen as a “tenuous” source—intercepts of phone calls between suspected militants saying that al Qaeda-linked militants took part in the attack. The evidence was deemed by some of the intelligence officials to be inconclusive.

Eliminating references to al Qaeda also would protect sources, some of the officials argued. With so few suspected al Qaeda-affiliated militants taking part in the attacks, officials were concerned that fingering al Qaeda in official information would tip them off that they were being monitored. [my emphasis]

Just as interesting, the WSJ hints at how much of the public pseudo-scandal derives from internal fights–this fight between IC bureaucrats over whether to include the al Qaeda link or not. It makes it clear that those privy to the intelligence but not part of the vetting process suspected political calculations influenced the talking points.

Among some military and intelligence officials who were familiar with the classified intelligence but weren’t involved in the talking-points debate, Ms. Rice’s TV comments on Sept. 16 came as a surprise. They questioned why officials like her didn’t state the clear belief within intelligence circles that al Qaeda’s North African affiliate was involved in the attack, and they saw the administration’s decision not to point to al Qaeda as a reluctance to talk about the attack as terrorism.

Some career intelligence analysts “were just fuming,” a former U.S. official said. Unaware of the vetting process, some questioned whether the statements from top officials were influenced by political calculations.

And one of those people, we can assume, leaked the contents of the intercepts–precisely the thing the IC was trying to protect–to Eli Lake.

In the hours following the 9/11 anniversary attack on the U.S. consulate in Benghazi, Libya, U.S. intelligence agencies monitored communications from jihadists affiliated with the group that led the attack and members of Al Qaeda in the Islamic Maghreb (AQIM), the group’s North African affiliate.

[snip]

That said, the intelligence community did not offer Congress or senior Obama administration officials any consensus analysis on the perpetrator of the attack in those early days after it occurred.

The communications between members of AQIM and AAS were important. One U.S. intelligence official who has read the raw intercepts said the conversations showed that AAS operatives were subordinate to the mid-level AQIM members. In one conversation, the AQIM manager was referred to with the kinds of honorifics usually reserved in Arab society for a more powerful man. A retired senior U.S. counterterrorism official who also was familiar with the intelligence confirmed this account.

Not all U.S. officials contacted for this story piece agreed with this assessment

“Those individuals—whoever they may be—who took part in the attack all swim in the same, relatively small, extremist pond,” one U.S. official told The Daily Beast. “So there could be a number of individual or ad hoc ties with AQIM or other extremist groups. These connections alone do not mean AQIM was behind or planned the attack. This is why there’s an ongoing investigation, to identify the attackers and determine motives and relationships to extremist groups.”

Now, I’m not complaining that that information was liberated (though it did have precisely the effect intelligence professionals worried it might: it appears to have tipped Ali Ani al-Harzi off that he was being monitored, which in turn appears to have led him to flee Libya. This information, in more generic form, should have been released.

I’m amused by the silence of everyone–the Administration that has prosecuted a record number of leakers, the Congressman teaming up to pass new laws to criminalize leaking, and the Republicans who accuse the Administration of leaking to influence the election–regarding what was obviously a pretty incautious leak. Yeah, I get the politics here makes public complaint impossible for just about everyone (save, perhaps, the NSA, whose wiretaps were revealed).

But it shows just how selective most of the claims of concern about leaks really are.