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Gina Haspel Seems to Admit Knowing Jane Harman Opposed Torture Tape Destruction — Just Not Caring

Gina Haspel provided two significantly different responses in questions for the record about her knowledge of Jane Harman’s opposition to torture tape destruction and Carl Levin’s proposal to launch a commission to investigate torture.

Here’s how she answered a Dianne Feinstein question about Harman, who first said CIA shouldn’t destroy the tape in 2003 while serving as Ranking Member.

Question: (U) At the time of the tapes’ destruction, were you aware of the request from Representative Jane Harman that the videos be preserved? Were you aware of CIA attorneys’ concerns that congressional investigators or a congressionally authorized commission might seek access to them? Were you aware of the White House Counsel’s and Director of National Intelligence’s instructions that they not be destroyed?

Response: (U) To the best of my recollection, at the time of the destruction of the videotapes, I was aware of concerns raised in several quarters about destroying the tapes, but I was told that there were no legal prohibitions to destroying the tapes. Ultimately, the decision to destroy the tapes was made by the former Deputy Director for Operations.

In response to a question about Harman, Haspel admits that she was aware of opposition to destroying the tapes (Harman’s opposition showed up in a number of internal reviews, so there was would have been a paper trail documenting her knowledge). Her response suggests Congressional opposition to destroying the tapes did not affect the legal question.

Compare that to her answer about Carl Levin’s initial efforts to conduct an inquiry into torture just days before the tapes were destroyed.

Question: (U) Were you aware that legislation had been introduced in the U.S. Congress to review detainee issues when you drafted the cable authorizing the destruction of detainee interrogation videotapes on November 8, 2005? Please describe all conversations you had regarding congressional oversight of this matter prior to the destruction of the videotapes.

Response: (U) To the best of my recollection, I was not aware of this proposed legislation and I do not recall any discussions pertaining to congressional oversight of detainee videotapes prior to the destruction in November 2005.

Here, she offers a “do not recall” answer, probably because she and Jose Rodriguez did not memorialize any discussions of the possibility that Congress might shortly demand that CIA retain the tapes, if they had any discussions, so there was no proof she knew of it. She’s also discounting Harman’s objection as something other than “congressional oversight of detainee videotapes.”

Ultimately, it all comes down to not giving a shit what Congress thinks, though, while carefully protecting herself against claims that they destroyed the tapes in response to Levin’s actions, as opposed to the public reporting on the torture program that also immediately preceded the tape destruction.

Gina Haspel’s Fluid Moral Compass

I expected to dislike Gina Haspel, but be impressed with her competence (the same view I always had about John Brennan). But she did not come off as competent in her confirmation hearing, in large part because the lies surrounding her career cannot be sustained.

Let’s start with the questions she didn’t answer (usually offering a non-responsive rehearsed answer instead). She refused to say:

  • Whether she believes, with the benefit of hindsight, torture was immoral.
  • If a terrorist tortured a CIA officer, whether that would be immoral.
  • Whether the torture program was consistent with American values.
  • Whether she oversaw the torture of Abd al Rahim al-Nashiri.
  • Whether she was in a role supervising torture before she became Jose Rodriguez’ Chief of Staff.
  • Whether she pushed to keep the torture program between 2005 and 2007 (see that question here).
  • Whether she would recuse from declassification decisions relating to her nomination.
  • Whether Dan Coats should oversee declassification decisions regarding her nomination.
  • Whether she has been alone with President Trump.
  • Whether she would tell Congress if he asked her for a loyalty oath.

She also answered that she didn’t think torture worked, but then hedged and said she couldn’t say that because we got evidence from it.

She did answer one question that went to the core of her abuse when she participated in the destruction of the torture tapes. She said she would consider it insubordination today if an officer bypassed her for something as substantive as destroying the tapes, as Jose Rodriguez did. But she as much as said she would have destroyed the tape much earlier, because of the security risk they posed to the officers who appeared in the videos.

Then there was the logical inconsistency of her presentation. Several Senators, including Mark Warner, Dianne Feinstein, Ron Wyden, and Kamala Harris, complained about the selective declassification of information surrounding her confirmation. Haspel explained that she had to abide by the rules of classification just like everyone else. Not only was that transparent bullshit on its face (as Harris noted, the CIA released a great deal of information that revealed details of her operations), during the course of the hearing she provided details about her first meeting with an asset, Jennifer Matthews’ life and assignments, and a counter-drug program that also must be classified, and yet she was willing to simply blurt them out.

Perhaps most remarkable, though, is a key claim she made to excuse the destruction of the torture tape.

She claimed she did not recall which of the long list of entities that opposed the destruction of the torture tape she knew about at the time. That includes a move by Carl Levin to form a congressional commission to investigate torture. But on several occasions, she said that because the torture was covered in cable traffic, no other evidence needed to be kept.

That assumes, of course, that both the specific CIA cable and CIA cables generally are a fair rendition of any event CIA does (it’s not; in this case, and some videos were destroyed before the reviews finding them to match).

But when the Senate Intelligence Committee did a 6.700 page report based on the cables CIA used to describe their own torture, CIA wailed because SSCI didn’t interview the individual officers. Haspel effectively suggested that cables, in the absence of the torture tapes, would be sufficient for a congressional commission. Yet when Congress used cables to do an investigation of torture, CIA then claimed that was invalid.

When asked whether torture was moral, Haspel instead repeatedly insisted she has a sound moral compass. Except what her testimony made clear is that her idea of moral compass has everything to do with what is good for the CIA and its officers. It has absolutely nothing to do with traditional moral values. That’s not actually surprising. That’s what we ask of clandestine CIA officers: to break the rules normal people adhere to, in the name of serving our country, and to remain absolutely loyal to those whose lives are exposed in doing so.

Except today, Haspel proved unable to move beyond the fluid moral compass of a CIA officer to adopt a more stringent moral code of an official serving a democracy.

Some Legislative Responses to Clinton’s Email Scandal

The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

Hillary’s National Security Alliance for Quivering Over Bank Prosecutions

Fresh off being caught lying about rolling her eyes in response to calls for Palestinian rights, Neera Tanden has rolled out something called the National Security Leadership Alliance. Best as I can tell, it exists mainly on paper right now — I couldn’t even find it on CAP’s site yet. But it seems designed to fear-monger about what will happen if Trump becomes Commander-in-Chief.

The project, called the National Security Leadership Alliance, will be funded by C.A.P. Action. It will feature a roster of major members of the foreign policy and national security community, including two retired four-star generals; Leon E. Panetta, the former C.I.A. director; Madeleine K. Albright, the former secretary of state; Eric H. Holder Jr., the former attorney general; and Carl Levin, the former Michigan senator. All have endorsed Mrs. Clinton.

There will be an effort to highlight precisely what, in the military arsenal, Donald J. Trump would have access to as president. Mr. Trump has been criticized for his views on foreign policy, criticisms that have been central to the case that Mrs. Clinton has made against him in an effort to describe the stakes of the 2016 presidential election. The Center for American Progress is led by a top outside adviser to Mrs. Clinton, Neera Tanden, and the new project seeks to put a spotlight on what officials are calling a progressive foreign policy vision.

I’m perfectly okay with fearmongering about Trump. But let’s look at this lineup. It features the woman who said letting half a million Iraqi children die was worth the price of enforcing sanctions against the country. It also includes a guy, Panetta, whose exposure of the identities of Osama bin Laden killers’ to Hollywood producers serves to reinforce what a double standard on classified information Hillary (and Panetta) benefit from.

But I’m most curious by a “national security” team that includes both Eric Holder and Carl Levin, especially given the NYT focus, in announcing the venture, on Brexit.

“I think what brought us together is obviously a lot of concern about some of the division and polarization that we’re seeing in the world,” Mr. Panetta said in an interview. “We know we’re living in a time of great change and uncertainty.”

But he added, “The concern we have is we see these forces of division that are prepared to throw out the fundamental” principles of foreign policy in the United States over many decades.

“What we’re learning from ‘Brexit’ is that there’s a price to be paid in terms of letting out emotion dictate policy instead of responsible leadership,” he said, referring to Britain’s vote to leave the European Union. “We shouldn’t throw the baby out with the bath water.”

Leon Panetta, in rolling out a venture including Carl Levin — who as head of the Senate’s Permanent Subcommittee on Investigations worked tirelessly for some kind of accountability on bank crime — and Eric Holder — who ignored multiple criminal referrals from Levin, including one pertaining to Goldman Sachs head Lloyd Blankfein — says the lesson from Brexit is that we can’t let emotion dictate policy but instead should practice “responsible leadership” guarding the “fundamental principles of foreign policy in the United States over many decades.”

Of course, as David Dayen argued convincingly, to the extent Brexit was an emotional vote, the emotions were largely inflamed by elite failures — the failures of people like Eric Holder to demand any responsibility (Dayen doesn’t deal with the equally large failures of hawks like Albright whose destabilizing policies in the Middle East have created the refugee crisis in Europe, which indirectly inflamed Brexit voters).

Again, I’m okay if Hillary wants to spend her time fearmongering about the dangers of Trump.

But to do so credibly, she needs to be a lot more cognizant of the dangers her own team have created.

Meet the Press: 12 Years of Unchallenged Cheney Claims about Iraq and Al Qaeda

Chuck Todd figured the best way to engage in journalism after the release of the Torture Report was not to invite one of the many interrogators who objected to torture or, having performed it, learned that it damaged them as much as the detainee (Kudos to ABC and CNN for having done so), but instead to invite Dick Cheney on to defend anal rape (which Todd did not call anal rape).

And while Todd had a Tim Russert style gotcha — Dick Cheney predicting 20 years ago that overthrowing Saddam would lead to the disintegration of Iraq and untold chaos — when Dick Cheney explained that 9/11 changed that earlier analysis, Todd offered the most impotent rebuttal, noting that the report undermines that claim, without doing any of several things:

  • Rather than engaging in “report says he says” two side false equivalency, point out that the evidence — the facts — refute that
  • Pointing out the new evidence, offered by Carl Levin this week, that Cheney had knowingly and repeatedly lied on Meet the Press about this topic
  • Reminding Cheney that CIA and DOD set off to find a way to “exploit,” not just “interrogate” detainees, and on the measure of producing false confessions to be used propaganda, the torture was a key part of starting an illegal war that led to the death of 4,000 Americans and untold Iraqis

Todd, of course, did none of those things.

I guess Meet the Press believes they’ll return to the glory of the Tim Russert era if they do the same thing Tim Russert did in his last years, offer Cheney a platform to lie and lie and lie.

For 12 years now, Meet the Press has been willing platform for unchallenged Dick Cheney lies.

Hate to Tell SSCI I Told Them So, John Brennan Lying and Spying Edition

The morning of John Brennan’s confirmation hearing, I posted what I deemed the 5 most important questions to ask him. Three were: Will you stop lying, how much of Dick Cheney’s illegal wiretap program did you run, and will you permit CIA to spy on Americans.

1) Do you plan to continue lying to Americans?

You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)

In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?

[snip]

4) What role did you have in Bush’s illegal wiretap program?The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.

What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)

5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?

In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?

Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans?  (More background)

As it turns out, all three questions are directly pertinent for the latest dust-up between SSCI and the CIA Director.

Tensions between the CIA and its congressional overseers erupted anew this week when CIA Director John Brennan refused to tell lawmakers who authorized intrusions into computers used by the Senate Intelligence Committee to compile a damning report on the spy agency’s interrogation program.

The confrontation, which took place during a closed-door meeting on Tuesday, came as the sides continue to spar over the report’s public release, providing further proof of the unprecedented deterioration in relations between the CIA and Capitol Hill.

After the meeting, several senators were so incensed at Brennan that they confirmed the row and all but accused the nation’s top spy of defying Congress.

“I’m concerned there’s disrespect towards the Congress,” Sen. Carl Levin, D-Mich., who also serves as chairman of the Senate Armed Services Committee, told McClatchy. “I think it’s arrogant, I think it’s unacceptable.”

And you know what, Senator Levin? Brennan doesn’t actually care what you think. This Committee confirmed him last year, at a point where it was already clear he would lie and spy if he thought it would help the CIA. That was the moment to win respect from Brennan.

But at this point — especially because it seems Brennan has confidence his boss won’t fire him — he knows he can get away with this.

White House, Congress Arguing Over Which Senate Committee Should Fail in Drone Oversight

Ken Dilanian has a very interesting article in the Los Angeles Times outlining the latest failure in Congress’ attempts to exert oversight over drones. Senator Carl Levin had the reasonable idea of calling a joint closed session of the Senate Armed Services and Intelligence Committees so that the details of consolidating drone functions under the Pentagon (and helping the CIA to lose at least one of its paramilitary functions) could be smoothed out. In the end, “smooth” didn’t happen:

An effort by a powerful U.S. senator to broaden congressional oversight of lethal drone strikes overseas fell apart last week after the White House refused to expand the number of lawmakers briefed on covert CIA operations, according to senior U.S. officials.

Sen. Carl Levin (D-Mich.), who chairs the Armed Services Committee, held a joint classified hearing Thursday with the Senate Intelligence Committee on CIA and military drone strikes against suspected terrorists.

But the White House did not allow CIA officials to attend, so military counter-terrorism commanders testified on their own.

But perhaps the White House was merely retaliating for an earlier slight from Congress:

In May, the White House said it would seek to gradually move armed drone operations to the Pentagon. But lawmakers added a provision to the defense spending bill in December that cut off funds for that purpose, although it allows planning to continue.

Dilanian parrots the usual framing of CIA vs JSOC on drone targeting:

Levin thought it made sense for both committees to share a briefing from generals and CIA officials, officials said. He was eager to dispel the notion, they said, that CIA drone operators were more precise and less prone to error than those in the military.

The reality is that targeting in both the CIA and JSOC drone programs is deeply flawed, and the flaws lead directly to civilian deaths. I have noted many times (for example see here and here and here) when John Brennan-directed drone strikes (either when he had control of strike targeting as Obama’s assassination czar at the White House or after taking over the CIA and taking drone responsibility with him) reeked of political retaliation rather than being logically aimed at high value targets. But those examples pale in comparison to Brennan’s “not a bake sale” strike that killed 40 civilians immediately after Raymond Davis’ release or his personal intervention in the peace talks between Pakistan and the TTP. JSOC, on the other hand, has input from the Defense Intelligence Agency, which, as Marcy has noted, has its own style when it comes to “facts”. On top of that, we have the disclosure from Jeremy Scahill and Glenn Greenwald earlier this week that JSOC will target individual mobile phone SIM cards rather than people for strikes, without confirming that the phone is in possession of the target at the time of the strike. The flaws inherent in both of these approaches lead to civilian deaths that fuel creation of even more terrorists among the survivors.

Dilanian doesn’t note that the current move by the White House to consolidate drones at the Pentagon is the opposite of what took place about a year before Brennan took over the CIA, when his group at the White House took over some control of JSOC targeting decisions, at least with regard to signature strikes in Yemen.

In the end, though, it’s hard to see how getting all drone functions within the Pentagon and under Senate Armed Services Committee oversight will improve anything. Admittedly, the Senate Intelligence Committee is responsible for the spectacular failure of NSA oversight and has lacked the courage to release its thorough torture investigation report, but Armed Services oversees a bloated Pentagon that can’t even pass an audit (pdf). In the end, it seems to me that this entire pissing match between Congress and the White House is over which committee(s) will ultimately be blamed for failing oversight of drones.

The “McCain Committee” Would Be Full of NSA Defenders

Imagine a McCain Committee as the inheritor of the tradition of Frank Church and Otis Pike.

(Yes, I did that to make bmaz’ head explode.)

That seems to be what John McCain intends with his resolution calling for a Committee to Investigate the Dragnet. (h/t Steven Aftergood)

Only, McCain proposes to investigate not just whether NSA has engaged in things it was not authorized to do. But also to investigate Snowden’s leaks themselves and the potential role of contractors in making leaks more likely.

All that said, I might be excited about McCain’s proposal to review the dragnet, as described:

(3) The nature and scope of National Security Agency intelligence-collection programs, operations, and activities, including intelligence-collection programs affecting Americans, that were the subject matter of the unauthorized disclosure, including–

(A) the extent of domestic surveillance authorized by law;

(B) the legal authority that served as the basis for the National Security Agency intelligence-collection programs, operations, and activities that are the subject matter of those disclosures;

(C) the extent to which such programs, operations, and activities that were the subject matter of such unauthorized disclosures may have gone beyond what was authorized by law or permitted under the Constitution of the United States;

(D) the extent and sufficiency of oversight of such programs, operations, and activities by Congress and the Executive Branch; and

(E) the need for greater transparency and more effective congressional oversight of intelligence community activities.

There’s just one problem with McCain’s proposal.

Here’s the list of the people who would be on the Committee (he provides titles, I’m providing names):

  • Diane Feinstein
  • Saxby Chambliss
  • Carl Levin
  • Jim Inhofe
  • Tom Carper
  • Tom Coburn
  • Robert Menendez
  • Bob Corker
  • Pat Leahy
  • Chuck Grassley
  • Jello Jay Rockefeller
  • John Thune
  • A Harry Reid pick
  • A Mitch McConnell pick

There are a number of very big NSA defenders on this list — in addition to DiFi and Saxby, both Jello Jay and Coburn are Intel Committee members who have never questioned the dragnet (indeed, Coburn has called for getting rid of the controls on the phone dragnet!). Chuck Grassley, too, has generally been supportive of the dragnet in SJC hearings on the subject. Most of the rest are simply not the caliber of people who might critically assess the dragnet much less show real interest in Americans’ privacy. Only Carl Levin and Pat Leahy, alone among the 12 named members, have been explicitly skeptical of the dragnet at all.

McCain proposes a Select Committee to investigate the dragnet. And he proposes to fill it with people who are really happy with the dragnet as it currently exists.

Update: Just to give a sense of how terrible this make-up for a Select Committee is, compare it with the bipartisan list of 26 Senators who asked James Clapper for more information on other uses of Section 215 last June. Just one Senator from that list — Pat Leahy — would be on McCain’s committee.

Update: Haha! Via Matt Sledge, DiFi shot McCain’s idea down pretty quickly.

Fat Al Gore Menaces the Homeland and Homeland Security Experts Don’t Care

Six days ago, Fat Al Gore (my shorthand for climate change) attacked the Philippines, killing as many 10,000 and leaving 250,000 homeless.

It was Fat Al Gore’s most successful attack thus far.

With Fat Al Gore’s growing success in mind, consider these data points.

Senate Homeland Security Committee doesn’t recognize Fat Al Gore as a threat

The Senate Homeland Security Committee is holding a hearing on “Threats to the Homeland.” It is focused almost entirely on what witnesses describe a dispersed Al Qaeda threat (which doesn’t have the ability to attack in the US), self-radicalized extremists who don’t have the ability to conduct large-scale attacks, and cybersecurity (though Carl Levin did bring up corporate anonymity as a threat, and Republicans brought up Benghazi, which isn’t the “Homeland” at all; also, Ron Johnson leaked that Secret Service officers have proven unable to keep their dick in their pants in 17 countries).

None of the three witnesses even mentioned climate change in their testimony.

Obama’s Chief of Staff threatened to “kill” Steven Chu for admitting islands would disappear because of climate change

Meanwhile, the lead anecdote of this mostly interesting (but in parts obviously bullshit) profile of how Obama disempowered his cabinet ministers tells how Rahm went ballistic because Steven Chu (whose energy initiative created a bunch of jobs) publicly admitted that some islands will disappear because of climate change.

In April 2009, Chu joined Obama’s entourage for one of the administration’s first overseas trips, to Trinidad and Tobago for a Summit of the Americas focused on economic development. Chu was not scheduled to address the media, but reporters kept bugging Josh Earnest, a young staffer, who sheepishly approached his boss, White House press secretary Robert Gibbs, with the ask. “No way,” Gibbs told him.

“Come on,” Earnest said. “The guy came all the way down here. Why don’t we just have him talk about all the stuff he’s doing?”

Gibbs reluctantly assented. Then Chu took the podium to tell the tiny island nation that it might soon, sorry to say, be underwater—which not only insulted the good people of Trinidad and Tobago but also raised the climate issue at a time when the White House wanted the economy, and the economy only, on the front burner. “I think the Caribbean countries face rising oceans, and they face increase in the severity of hurricanes,” Chu said. “This is something that is very, very scary to all of us. … The island states … some of them will disappear.”

Earnest slunk backstage. “OK, we’ll never do that again,” he said as Gibbs glared. A phone rang. It was White House chief of staff Rahm Emanuel calling Messina to snarl, “If you don’t kill [Chu], I’m going to.”

Much later the story notes that Heather Zichal is on her way out too.

Even blue-chip West Wingers such as economic adviser Gene Sperling and climate czar Heather Zichal are heading for the exits.

Washington insiders applaud fracking while ignoring climate change

Meanwhile, also as part of its big new magazine spread, Politico has two related pieces on DC insiders views.

There’s this “Real Game Changers” piece capturing the “big forces they see shaking up U.S. politics.” David Petraeus talks about “the ongoing energy revolution in the U.S.” Jeb Bush promises, “With natural gas as an exponentially growing source, we can re-industrialize.” And while several thinkers describe the problem of economic inequality, only Al Gore talks about Fat Al Gore.

Carbon pollution from burning fossil fuels is changing our climate and transforming our world. From more destructive and more frequent climate-related extreme weather events, floods and droughts, melting ice and rising sea levels, to climate refugees, crop failure, higher asthma rates and water scarcity, the consequences are profound. As citizens, we’re already paying the high costs. Billions of dollars to clean up after extreme weather events. Rising insurance bills. Lives lost.

Meanwhile, former respectable energy historian turned shill Daniel Yergin congratulates America on being almost energy independent.

Here’s his only mention of the word “climate.”

In a major climate speech this past June, he declared, “We should strengthen our position as the top natural gas producer because, in the medium term at least, it not only can provide safe, cheap power, but it can also help reduce our carbon emissions.”

Yes, we’re going to fight climate change by burning carbon (gas) instead of carbon (coal).

To be fair to the DC elite, the reason we’re embracing fracking is to give ourselves space to ditch the terrorist funding Saudis. So there is a real national security purpose to it.

But of course, it’s a purpose that addresses a far less urgent threat than that terrorist Fat Al Gore, who just killed 10,000 people.

On the Growing Fight Against America’s Secret Enemies

Cora Currier describes the absurd response she got when she asked for a list of our enemies.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”

Thing is, this is not entirely new. At least until February, the government had been refusing to give Ron Wyden a list of every country in which we’ve used lethal force. And he’s on the Intelligence Committee!

Indeed, Currier suggests one reason this might be classified would be if Obama was fighting these enemies under Inherent Authority.

The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.

But, as Jack Goldsmith notes, something else seems to be going on here, because the response Currier got suggests the list is classified Secret, not whatever Top Secret compartment the government maintained for a year Wyden couldn’t access.

The language of the DOD release suggests that at least a few more groups (or elements of groups), and maybe many more groups (or elements), are on the AUMF “list.”  The existence of a “list” (which was unclear in the May 2013 AUMF hearing), and the fact that there may be at least a few groups (or elements of groups) on it, is itself news in the AUMF-watcher world.  It is also consistent with suggestions and implications in reports, such as in Mark Mazzetti’s book, that the AUMF is being invoked in various ways by DOD Special Operations Forces for non-covert military activities in many countries around the globe.

Third, it is entirely unclear why the USG can acknowledge some groups without unduly “inflating” them, and not others.  And this in turn makes me skeptical of the notion of “inflation.”  To be sure, some groups that are AUMF-able (such as, perhaps, the Haqqani network, a known but not acknowledged U.S. target) perhaps cannot be named because the operations are covert actions and involve deals of non-acknowledgment with foreign governments (or elements of foreign governments).  But that cannot be a comprehensive explanation for DOD’s secrecy.  By stating that disclosure of groups on the list would “reasonably be expected to cause serious damage to the national security,” DOD has tipped off that the list is classified only at the secret (as opposed to top secret) level.  (See Section 1.2 of E.O. 13,256.)  Covert actions are typically classified at the top secret level.  This implies (but does not prove) that some if not all of the AUMF-groups in question are not subjects of covert actions.

But remember: There are two other instances where the government has refused to clarify who is, and is not, an enemy.

When a bunch of people who have talked to, but not assisted, terrorists sued to stop the NSAA’s provisions allowing indefinite detention, the government refused (until it became convenient) to say whether they could be detained or not.

Then, as part of the Bradley Manning charges, the government kept one of the enemies it was going to prove he had aided classified (but ultimately didn’t argue he had aided that enemy in court).

Prosecutors accuse him of “aiding the enemy,” and three in particular: al-Qaida, al-Qaida in the Arabian Peninsula and a “classified enemy” referred to by a Bates number, which is a form of legal document identification.
Three professors of military law – Yale Law School’s Eugene Fidell, Duke University School of Law’s Scott Silliman and Texas Tech University School of Law’s Richard Rosen – told Courthouse News they had never heard of a case involving a “classified enemy.”
After being informed that the phrase stumped the professors, a military spokeswoman insisted that the confusion stemmed from a misunderstanding, because “who the enemy ‘is’ is not classified.”
“What ‘is’ classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified,” the spokeswoman said in an email.

One thing about all these instances — refusing to share a list of lethal force targeted countries with Ron Wyden, sharing a classified list with Carl Levin only on request, refusing to tell Americans (and one member of parliament from Iceland) whether they are counted as enemies, and refusing to tell Manning which enemy he supposed aided — is that they provide the executive maximum flexibility. That may not be the only thing this extreme secrecy about enemies does. But it is one thing it does do, along with hiding how broad the unilaterally declared war under Inherent Authority is.

It sure does make things confusing, though!