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“The Gloves Come Off” Memorandum of Notification

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Operational flexibility: This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.

-Cofer Black, 9/11 Congressional Inquiry, September 26, 2002

When Cofer Black, the main author of the plan laid out in the September 17, 2001 Memorandum of Notification that appears to be at issue in the FOIA dispute between the CIA and White House and the ACLU (post 1, post 2, post 3, post 4, post 5), testified before the 9/11 Congressional Inquiry, he described the expanded operational flexibility CIA’s counterterrorism efforts gained after 9/11 by saying “the gloves come off.”

As this post shows, the legal means by which “the gloves come off” was the MON in question. Thus, rather than referring to the MON by its date, perhaps the best way for us to think of it is as the “Gloves Come Off MON.”

Before we get into what the MON did, here’s what the National Security Act, as amended, says such MONs are supposed to do. The NSA requires the President to notify congressional intelligence and appropriations committees (or, in rare cases, the Gang of Eight) of any covert operations he has authorized the CIA to conduct. Some important excerpts:

SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President’s decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.

[snip]

(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.

[snip]

(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) [the Gang of Eight], are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).

As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

Basically, the MONs are supposed to provide an up-to-date written notice of all the  potentially very embarrassing things the CIA is doing. And given that MONs cannot authorize unconstitutional or illegal (within the US) actions, it should impose some legal limits to covert operations.

Dick Cheney, in a 1989 speech complaining about Congressional overreach in foreign policy (Charlie Savage just posted this), described how this requirement to inform Congress of covert ops provided a way for Congress to oppose such actions by defunding any ongoing ones.

The 1980 law [requiring notice] did not challenge the President’s inherent constitutional authority to initiate covert actions. In fact, that law specifically denied any intention to require advance congressional approval for such actions.

[snip]

Any time Congress feels that an operation is unwise, it may step in to prohibit funds in the coming budget cycle from being used for that purpose. As a result, all operations of extended duration have the committees’ tacit support.

That’s the understanding of the limitations MONs might impose on Presidents that Cheney brought to discussions of the Gloves Come Off MON.

Bob Woodward provides an extensive discussion of what George Tenet and Cofer Black requested in this MON in Bush at War.

At the heart of the proposal was a recommendation that the president give what Tenet labeled “exceptional authorities” to the CIA to destroy al Qaeda in Afghanistan and the rest of the world. He wanted a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation. The current process involved too much time, lawyering, reviews and debate. The CIA needed new, robust authority to operate without restraint. Tenet also wanted encouragement from the president to take risks.

Another key component, he said, was to “use exceptional authorities to detain al Qaeda operatives worldwide.” That meant the CIA could use foreign intelligence services or other paid assets. Tenet and his senior deputies would be authorized to approve “snatch” operations abroad, truly exceptional power.

Tenet had brought a draft of a presidential intelligence order, called a finding, that would give the CIA power to use the full range of covert instruments, including deadly force. For more than two decades, the CIA had simply modified previous presidential findings to obtain its formal authority for counterterrorism. His new proposal, technically called a Memorandum of Notification, was presented as a modification to the worldwide counterterrorism intelligence finding signed by Ronald Reagan in 1986. As if symbolically erasing the recent past, it superseded five such memoranda signed by President Clinton.

Woodward describes other things included in Tenet’s request:

  • Providing hundreds of millions to “heavily subsidize Arab liaison services,” effectively “buying” key services in Egypt, Jordan, and Algeria
  • Equipping Predator drones with Hellfire missiles for lethal missions to take out top al Qaeda figures Read more →

One Good Reason the WaPo Should NOT Get Kudos for Its “Top Secret” Series

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The WaPo has an article out that’s causing quite a stir. It bemoans the fact that the CIA has lost much of its top managers since 9/11.

More than 90 of the agency’s upper-level managers have left for the private sector in the past 10 years, according to data compiled by The Washington Post. In addition to three directors, the CIA has lost four of its deputy directors for operations, three directors of its counterterrorism center and all five of the division chiefs who were in place the day of the Sept. 11 attacks and responsible for monitoring terrorism and instability across the world.

Let’s name some of the people they’re talking about, shall we?

  • George “Slam Dunk” Tenet
  • Porter Goss
  • Michael Hayden
  • John McLaughlin
  • Stephen Kappes
  • Jose Rodriguez
  • Cofer Black
  • Robert Grenier

Several of these people were instrumental in trumping up propaganda to justify a war of choice. Several others implemented a system of rendition and torture. One of them helped the Vice President set up an illegal domestic wiretap program. The least compromised, legally (Grenier), probably was less than forthcoming under oath in the CIA Leak Case.

Really?!?! We’re bemoaning the fact that this parade of criminally and morally compromised people are no longer in a position of top leadership (though a number of them are still on the federal gravy train as contractors)?

There’s also little consideration of why and where Black went when they left: the urge to have mercenaries as a way to evade legal limits drove some of this exodus as much as money.

Two (digital) pages later, the WaPo finally gets around to the real problem with the exodus of more junior level officers: the loss of functional expertise.

In 2009, after a double-agent blew himself up at a CIA base in Afghanistan, killing seven of the agency’s officers, many former officials suggested that the tragedy might have been prevented had the CIA retained more senior personnel at the outpost.

Some officials questioned why the agency had given one of the top assignments there to an officer who had never served in a war zone. Other former officials raised concerns about how intelligence assets were being handled in the field.

“The tradecraft that was developed over many years is passe,” a recently retired senior intelligence official said at the time. “Now it’s a military tempo, where you don’t have time for validating and vetting sources. . . . All that seems to have gone by the board. It shows there are not a lot of people with a great deal of experience in this field.”

In other words, the problem with contracting is far more complex than the WaPo, in a fairly long article, was able to explain. And in the process, the WaPo never explained a lot of the nuances behind what it sold as its top line story: the departure of the top managers.

I’m not saying the WaPo hasn’t done a lot of work on this story overall. But telling a story–particularly one as complex and important as this one–is more than collecting data points.

Scahill on the Blackwater Rent-an-Assassin Service

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As expected, Jeremy Scahill has a piece up on the revelation that CIA was using Blackwater as a Rent-an-Assassin service. He corrects the silence about the role of Buzzy Krongard in both the NYT and WaPo pieces on this.

In a 2006 interview for my book, Blackwater: The Rise of the World’s Most Powerful Mercenary Army, Krongard said that the company was hired to provide security for the CIA in Afghanistan. "Blackwater got a contract because they were the first people that could get people on the ground," Krongard said. "The only concern we had was getting the best security for our people. If we thought Martians could provide it, I guess we would have gone after them."

The relationship between Krongard and Prince apparently got chummier after the contract was signed. One former Blackwater executive said in 2006, "Krongard came down and visited Blackwater [at company headquarters in North Carolina], and I had to take his kids around and let them shoot on the firing range a number of times." That visit took place after the CIA contract was signed, according to the former executive, and Krongard "may have come down just to see the company that he had just hired."

And he lists a number of other CIA guys who went on to work for Blackwater. (Sort of makes you wonder how many of those people were used as sources for Finder’s propaganda piece yesterday, since a number of them would qualify as "very senior, recently retired CIA officials, clandestine-service officers.")

Scahill’s most important point (one he made with the help of an interview with Jan Schakowsky, who is in charge of this investigation) was that this program–and Cheney’s secrecy about it–meant Blackwater was a more integral part in crafting the Bush era counter-terrorism strategy than Congress.

"What we know now, if this is true, is that Blackwater was part of the highest level, the innermost circle strategizing and exercising strategy within the Bush administration," Schakowsky told The Nation. "Erik Prince operated at the highest and most secret level of the government. Clearly Prince was more trusted than the US Congress because Vice President Cheney made the decision not to brief Congress. This shows that there was absolutely no space whatsoever between the Bush administration and Blackwater." 

Yeah, I can see why that would piss off Congress.

CIA’s Blackwater Circular Firing Squad

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While we wait for Jeremy Scahill’s piece on this today (which will surely tell a more complete story than the NYT and WaPo‘s spook reporters did), I want to follow up on the two posts I did yesterday, obviously based on leaks and counter-leaks, to sort out what we know of the plans to use Blackwater as the US assassination squad. There are two parts to the story: first, that CIA invented an assassination program shortly after 9/11. And then, that CIA gave a contract to Blackwater for the program in 2004. Here are the dates we know of.

2001: Presidential finding allowing assassinations of al Qaeda, assassination squads set up

2002: CIA sets up contract for Blackwater to "provide security" for CIA’s Afghan station

2002: Dick Cheney tells CIA not to brief Congress on assassination plans

2002: Cofer Black ousted from CTC

2004: CIA terminates program, then gives contract to Blackwater to do assassination squads

September, 2004: Buzzy Krongard resigns as CIA’s Executive Director (replaced by Dusty Foggo)

February 2005: Cofer Black becomes Vice Chairman of Blackwater

Fall 2007: Krongard joins Blackwater advisory board

September 2007: Nisour Square massacre

June 23, 2009: Panetta learns of active assassination squad program, cancels it

June 24, 2009: Panetta briefs Congress

Now, a couple of points about this. The stories coming out today want to focus on 2004, when Blackwater supposedly got the contract to do this. If so, then what did Cheney order CIA not to tell Congress about in 2002? It may be that they’re using the term "contract" loosely to hide an earlier arrangement, given that they admit to NYT there was never really a contract.

Officials said the C.I.A. did not have a formal contract with Blackwater for this program but instead had individual agreements with top company officials, including the founder, Erik D. Prince, a politically connected former member of the Navy Seals and the heir to a family fortune. 

I guess if you’re doing all this without contracts, it makes it a lot easier for it to take four months before the Director of the CIA learns about it. But isn’t that one of the nightmares we’ve all been waiting for, as we outsource our intelligence? That the privatized spooks will take over and continue programs without telling the political appointees? Hell, that the privatized spooks will continue to work for the last guy who was President and not the current one?

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