John Brennan Gives Gonzales-Like Answer on Illegal Surveillance Program

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Or perhaps worse than Alberto Gonzales.

At John Brennan’s speech today, Spencer asked a question I’ve been hoping to have clarified since the IG Report revealed that two departments Brennan managed were in charge of targeting for Bush’s illegal surveillance program.

So today I asked Brennan: in light of the IGs report, what was his role, if any, in the domestic surveillance activities of the Bush administration? Here’s his answer, in full:

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. And there are a number of different programs, some of which have come out in the press, some of which have not. Some of the things that have come out in the press have been inaccurate in terms of the representations there. And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

These issues related to the so-called domestic surveillance programs and other things — one of the things I mentioned, there’s a lot of hyperbole and misrepresentations about what actually happened. And a lot of times people go down certain roads believing reports as facts. And that’s not the case. So I’m not going to go into sort of what my role was in that instance because a lot of those activities are still considered classified and not in the public domain, irrespective of what the press reports might be out there.

Brennan is either conflating unspecified inaccurate press reports with the inspectors general report or he’s challenging the inspectors general report itself.

Brennan seems to be doing two things. First, he’s using the same tactic adopted by Gonzales when he dodged questions about Bush’s illegal spying program by playing semantics about whether there was one program or many. Gonzales claimed there was no disagreement about the program by segmenting off the actual wiretapping of targets from the data mining which–the IG Report seems to confirm–was the key issue in the dispute. By claiming the Terrorist Surveillance Program was distinct from the data mining, then, Gonzales got away with claiming under oath that there had been no dispute.

Here, Brennan is suggesting either that the aspects of the program that have come out in the press aren’t the aspects he was involved in, or that the reporting on it has been inaccurate. Or rather, "either" … "and/or." Read more →

Missing the Deployed Military for the Trees

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In his post on the story that Cheney wanted to use the military to capture the Lackawanna Six, Scott Horton claims that the October 23, 2001 memo was written (seemingly exclusively) for the kinds of actions Cheney envisioned.

So the Yoo memoranda were almost certainly prepared in order to support a case for the domestic use of the military and in the hopes that by deploying the military, the Constitutional limitations on police action and arrests could simply be avoided.

He also confuses the memos in question, claiming a relatively (!) innocuous memo written for David Kris is the "principal memo" and forgetting that what is really the principal memo in question–the October 23, 2001 one–already has been released (though also read this Jason Leopold comment on a September 21, 2001 memo that is crucial as well).

The disclosures shed considerable light on two memoranda prepared in the Justice Department’s Office of Legal Counsel by John Yoo (with the help of Robert J. Delahunty on the second memo) at the request of then-White House counsel Alberto Gonzales. The principal memo was part of a group published by the Obama Administration on May 16, provoking widespread public concern. In the memo, Yoo argued that the Fourth Amendment could be viewed as suspended in the event of domestic operations by the military in war time. The second memo, not yet released but discussed here by Prof. Kim Scheppele on the basis of references to it in other documents, apparently attempted to read the Posse Comitatus Act of 1878, which forbids the domestic deployment of the military for police functions, into oblivion.

This confusion–and the claims that the October 23 memo primarily envisions the arrest of alleged terrorists by the military–is troublesome, IMO, because it obscures the other known application of the October 23 memo: the authorization of domestic surveillance by the military.

We know the Bush Admininistration had already used the memo in question–at least hypothetically–by the time Cheney floated using the military to detain the Lackawanna Six because Steven Bradbury listed the memo as one of those underlying the domestic surveillance program. Granted, the recent IG Report says any earlier memo–including, probably, the one Leopold notes–is hypothetical (though definitely related). Read more →

John Yoo: Al Qaeda Uses Telephones But KGB Spies Don’t

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There’s a lot that’s downright amusing for all but Berkeley’s trustees in John Yoo’s rebuttal to the IG Report. Though there is some good news for Berkeley: John Yoo has heard of Youngstown, even if the Korean-American has underplayed the context of the Korean War.

The 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar. In Youngstown, the Court addressed President Harry Truman’s effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining production was necessary to supply munitions and material to American troops in combat. Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war.

Our mistake in 2001, I guess, was to have had our labor discussions face to face and not via email.

But I’m most amused that John Yoo believes that the best way to find al Qaeda–an organization that had already cut back on the use of cell phones before 2001 and increasingly employed hawalas to elude electronic communication–is via tapping high tech communications.

Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S.

"The best way" to find an al Qaeda operative is to search high tech traffic between a select group of countries that doesn’t even include the country from which most 9/11 hijackers came? 

Well, really, the whole thing is worth more for laughs, as Yoo desperately tries to shoot down the straw men haunting his unconscious. But at least we learn this.

"The best way" to find al Qaeda operatives is not, apparently, to torture other suspects. 

Well, I’m glad Yoo finally figured that out. 

Update: Anonymous Liberal apparently still has the patience with Yoo to engage him in good faith. But his entire post is worth reading for the way he slaps Yoo up silly with analysis from … John Yoo.

Questions and Answers about Beginning of Domestic Spying Program

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The other day I noted that the Bush Administration seemed to have been using the 15-day exemption included in FISA to conduct domestic surveillance before the formal start date of the program.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF. 

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1. 

Meaning, the Bush Administration was already using those expanded authorities–but they were doing so by exploiting the 15-day exemption written into FISA!

Since then, I’ve tried to confirm that assertion, but the picture has only gotten muddier. There are two sets of conflicting data surrounding:

  • Program start date
  • OLC memo dates

James Bamford’s Shadow Factory and Eric Lichtblau’s reporting have some answers, but answers that raise a new set of questions. So here are some answers and more questions about the beginning of the domestic spying program.

Program Start Date

The IG Report explains the beginning of what it calls the Presidential Surveillance Program this way:

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP.

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.

So, in the days immediately after 9/11, Hayden used "existing authorities" to gather intelligence information. Then Tenet asked Hayden what more he could do, and he said he needed more authorities. "Shortly thereafter,"  Bush granted authorities covering a range of activities. Read more →

The “Other Intelligence Activities”

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I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

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Feingold Asks Sotomayor about Executive Power

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Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.

FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?

Read more →

Liz “BabyDick” Cheney Returns

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It was inevitable. Given the news over the weekend that DOJ might investigate PapaDick Cheney, we had to expect Liz "BabyDick" Cheney would be out again defending her Daddy (and, just as inevitably, the press would give her the soap box to do so).

But as more and more investigations start to focus on her Daddy, BabyDick sounds more and more pathetic. For example, here’s her attempt to scold Democrats for upholding the rule of law.

CHENEY: His reaction to the story that we may well be prosecuting folks, I’m happy to talk about that. … You know, he is very angry, as you’ve heard him say publicly. You know the notion that this administration is going to come into office and they’re going to prosecute the brave men and women who carried out this program that kept America safe. It is, it is un-American. It’s something that hasn’t happened before in this country, in terms of somebody taking office and then starting to prosecute people who carried out policies that they disagreed with, you know, in the previous administration. He’s been very public about that.[my emphasis]

Um, no. Depending on who you ask, Holder is considering prosecuting either those who overstepped the stated policy and/or those–like her Daddy–who ignored the law when they developed that policy. But BabyDick has to characterize a potential investigation in terms that conflict with everything Obama and Holder have said about a torture investigation so people don’t note that her–and her Daddy’s–cries of "un-American!!" are really just self-serving claptrap.

As if it would be un-American to tell PapaDick he has to follow the law.

Not only didn’t he–as the guy who redirected efforts in Afghanistan to an illegal war of choice in Iraq–keep us safe. But just about everything he did was un-American.

When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?

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We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

[snip]

Well, here’s the relevant detail from Mueller’s notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.

[snip]

Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality: 

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

Read more →

John Brennan, The Terrorist Threat Integration Center, and Main Core

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In my last post, I pointed out that John Brennan almost certainly had a role overseeing the threat assessment used for George Bush’s illegal surveillance program, for at least a year and possibly two. He probably did so, I explained, in his role as Director of the Terrorist Threat Integration Center and the Interim Director of the National CounterTerrorism Center.

That’s troublesome not just because one of Obama’s closest national security advisors is complicit with this illegal program. But also because it means the entity doing the Terrorist Watch List has been intimately involved in deciding whom to wiretap.

Here’s WhoRunsGov’s description of what Brennan did at TTIC and NCTC:

In 2004, he accepted a job at the National Counter-Terrorism Center, where he revamped the government’s monitoring of terrorist activity by incorporating information from across agencies. He also increased the number of analysts and compiled one of the most comprehensive reports on terrorism across the world. “We want to make sure that we are looking at it [terrorism] openly and as exhaustively as possible,” Brennan said in 2004. He also created the terrorist watch list, which contains names and data on thousands of suspected terrorists and is accessible to law enforcement officials, during his tenure.

And here’s part of a Frontline interview with Brennan.

… You were involved in creating the terrorist watch list through the NCTC, right? … Does it work?

It works, I think, very well. There [are] still improvements that need to be made. But prior to about two years ago or so in 2004, there were over a dozen databases in about nine different federal departments and agencies that were part of the watch-listing system. It was dysfunctional because they were not interconnected.

No organization, no architect[ure].

Right. And now there is an architecture that’s in place, and the National Counterterrorism Center feeds information to the FBI-administered Terrorist Screening Center [TSC] so that airports and ports of entry and local police have access to the master watch list of all individuals who are known or suspected to be transnational terrorists.

They can call in, or it shows up in airports?

They can do an immediate search. They can just log onto the computer that they have and run the name, and all the variants will come up. It’s a much more effective and efficient system now.

Read more →

Did Obama Flip-Flop on FISA to Protect John Brennan?

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Aside from his career of moderate political stances, the earliest clue that progressives were going to be disappointed with Barack Obama came last July, when he flip-flopped on his previous promises to oppose retroactive immunity on FISA. Yesterday’s IG Report may reveal the source of Obama’s flip-flop and subsequent reversal of his stance that Bush’s domestic surveillance program was illegal: John Brennan.

Brennan, you see, appears to have been a key figure in the illegal surveillance program from at least May 2003 through December 2005–precisely the period when the program was such an object of controversy internally.

While it was apparent from the Scope of the IG Report released in March and the various declarations in support of State Secrets that the Intelligence Community provided threat assessments that were used in the program, the IG Report provides a great deal of new detail on this process and–more importantly–a chronology describing which element of the IC conducted the threat assessments. The chronology is:

October 2001 to May 2003: DCI Chief of Staff (then John Moseman)

May 2003 to August 2004: Terrorist Threat Integration Center

August 2004 to April 2005: National CounterTerrorism Center

April 2005 to January 2007: ODNI

Now look at John Brennan’s career path (these dates are somewhat vague, but accurate to the best of my knowledge):

March 2001 to May 2003: Deputy Executive Director, CIA

May 2003 to August 2004: Director, Terrorist Threat Integration Center

August 2004 to December 2005: Interim Director, National CounterTerrorism Center (including ODNI after April 2005)

While Spencer is right that John Brennan was not the guy who compiled these assessments when the program first began (that is, John Brennan was no longer DCI COS), Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.

For at least a year and possibly two, John Brennan appears to have been the guy inventing "reasonable cause" to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

And John Brennan was consulting with candidate Obama last year when Obama flip-flopped.

And John Brennan remains a key national security advisor for Obama as the President has cowardly refused to prosecute a program he himself once called illegal.

Are Obama and Eric Holder refusing to prosecute illegal domestic surveillance because they’re protecting a key member of Obama’s Administration? Read more →