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While They’re Replacing John Boehner, the GOP Should Replace Devin Nunes, Too

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In a profile in Politico, Justin Amash* makes the case that the Freedom Caucus’ rebellion against John Boehner isn’t so much about ideology, it is about process.

Republican leaders see Freedom Caucus members as a bunch of bomb-throwing ideologues with little interest in finding solutions that can pass a divided government.

But that’s a false reading of the group, Amash told his constituents. Their mission isn’t to drag Republican leadership to the right, though many of them would certainly favor more conservative outcomes. It’s simply to force them to follow the institution’s procedures, Amash argued.

That means allowing legislation and amendments to flow through committees in a deliberative way, and giving individual members a chance to offer amendments and to have their ideas voted on on the House floor. Instead of waiting until right before the latest legislative crisis erupts, then twisting members’ arms for votes, they argue, leadership must empower the rank and file on the front end and let the process work its will.

“In some cases, conservative outcomes will succeed. In other cases, liberal outcomes will succeed. And that’s OK,” said Amash, who was reelected overwhelmingly last year after the U.S. Chamber of Commerce backed his Republican primary rival. “We can have a House where different coalitions get together on different bills and pass legislation. And then we present that to the Senate and we present it to the White House.

The truth lies somewhere in-between. After all, 8 of the 21 questions the FC posed to potential Speaker candidates are ideological in nature, hitting on the following issues:

  • Obamacare
  • Budget and appropriation resolution reform
  • Ex-Im bank
  • Highway Trust Fund
  • Impeaching the IRS Commissioner
  • First Amendment Defense Act

Admittedly, even some of those — the financial ones — are procedural, but there are some key ideological litmus tests there.

Of the remaining 21 questions, 3 pertain to use of NRCC resources, 4 pertain to conference make-up, and 6 have to do with process. In other words, this block of members wants to end the systematic exclusion of their members from leadership and other positions and the systematic suppression of legislation that might win a majority vote without leadership sanction.

And while I certainly recognize that some of these process reforms — again, especially the financial ones — would likely lead to more hostage taking, I also think such reforms would also make (as one example) stupid wars and surveillance less likely, because a transpartisan majority of the House opposes many such things while GOP leadership does not (Nancy Pelosi generally opposes stupid surveillance and wars but also usually, though not always, does the bidding of the President).

The Yoder-Polis Act, an ECPA reform bill supported by 300 co-sponsors, is an example of worthy legislation that has long been held up because of leadership opposition.

While making the case for reform, though, I’d like to make the suggestion for another: to boot Devin Nunes, the current Chair of the House Intelligence Committee. According to the House Republican rules, the only positions picked by the Speaker are Select Committee Chairs, which would include Nunes and Benghazi Committee Chair Trey Gowdy (the latter of whom seems to be taken care of with Republican after Republican now admitting the committee is just a hack job, though if the FC wants to call for Richard Hanna to take over as Chair to shut down this government waste, I’d be cool with that too).

But with Boehner on his way out, it seems fair to suggest that Nunes should go too. While Nunes was actually better on Benghazi than his predecessor (raising questions about the CIA’s involvement in gun-running), he has otherwise been a typical rubber stamp for the intelligence community, rushing to pass info-sharing with Department of Energy even while commenting on their shitty security practices, and pitching partisan briefings to give the IC one more opportunity to explain why the phone dragnet was more useful than all the independent reviews say it was.

The Intelligence Community has lost credibility since 9/11, and having a series of rubber stamp oversight Chairs (excepting Silvestre Reyes, who was actually reasonably good) has only exacerbated that credibility problem. So why not call for the appointment of someone like former state judge Ted Poe, who has experience with intelligence related issues on both the Judiciary and Foreign Relations Committees, but who has also been a staunch defender of the Constitution.

Hostage taking aside, I’m sympathetic to the argument that the House should adopt more inclusive rules, in part because it would undercut the problems of a two party duopoly serving DC conventional wisdom.

But no place in Congress needs to be reformed more than our intelligence oversight. And while picking a more independent Chair won’t revamp the legal structure of intelligence oversight, it might initiate a process of bringing more rigorous oversight to our nation’s intelligence agencies.

Of course, who am I kidding?!?! It’s not even clear that the GOP will succeed in finding a palatable Speaker candidate before Boehner retires. Throwing HPSCI Chair into the mix would likely be too much to ask. Nevertheless, as we discuss change and process, HPSCI is definitely one area where we could improve process to benefit the country.

*Amash is my congressperson, but I have not spoken to him or anyone else associated with him for this post and don’t even know if he’d support this suggestion.

Why Is Devin Nunes Rushing to Give More Data to Hack-Tastic Department of Energy?

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On several occasions, I’ve pointed out that the agencies that would automatically receive data shared with the federal government under cybersecurity bills being pushed through Congress aren’t any more secure than Office of Personnel Management, which China hacked in spectacular fashion. Among the worst — and getting worse rather than better — is Department of Energy.

Earlier this week, USAT published more information on how bad things are at DoE.

Cyber attackers successfully compromised the security of U.S. Department of Energy computer systems more than 150 times between 2010 and 2014, according to a review of federal records obtained by USA TODAY.

Incident reports submitted by federal officials and contractors since late 2010 to the Energy Department’s Joint Cybersecurity Coordination Center shows a near-consistent barrage of attempts to breach the security of critical information systems that contain sensitive data about the nation’s power grid, nuclear weapons stockpile and energy labs.

The records, obtained by USA TODAY through the Freedom of Information Act, show DOE components reported a total of 1,131 cyberattacks over a 48-month period ending in October 2014. Of those attempted cyber intrusions, 159 were successful.

Yet at yesterday’s Cyber Threats hearing (around 2 minutes), House Intelligence Chair Devin Nunes suggested he only learned of this detail from USAT’s report. “[J]ust this morning we learned that Department of Energy was successfully hacked 159 times.”

It’s troubling enough that the guy overseeing much of the government’s cybersecurity efforts didn’t already know these details (and I presume that means Nunes is also unaware that DoE has actually been getting worse as the Administration tries to fix major holes). Especially given that DoE is part of the Intelligence Community.

But it’s even more troubling given that HPSCI’s Protecting Cyber Networks Act, like the Senate’s Cyber Intelligence Sharing Act, automatically shares incoming cyber threat data with DoE (and permits private entities to share with DoE directly).

This is the height of irresponsibility. Devin Nunes is rushing to share this data — he pushed for quick passage of these bills in the same breath as noting how insecure DoE is –yet he hadn’t even bothered to review whether the agencies that would get the data have a consistent history of getting pawned.

Nunes did say that we need to ensure these agencies are secure. But the data is clear: DoE isn’t secure.

So why not plug those holes before putting more data in for hackers to get?

The Appropriations Battle over Funding “Moderate” Terrorists

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Two weeks ago, John Brennan admitted on a Sunday show that sometimes when we “push the envelope … to protect this country” it “stimulates and spurs additional threats to our national security interests.” In a post on his comments, I suggested he might be thinking specifically of Syria as much as generally of counterterrorism.

Today, the WaPo cites “U.S. officials” complaining that the House Intelligence Committee voted to cut 10% off CIA’s Syrian budget.

The measure has provoked concern among CIA and White House officials, who warned that pulling money out of the CIA effort could weaken U.S.-backed insurgents just as they have begun to emerge as effective fighters. The White House declined to comment.

Arrayed against those anonymous whiners, the WaPo cites Adam Schiff on the record and a senior aide anonymously, describing how the CIA effort isn’t tracked with real metrics and hasn’t done much to weaken Assad.

“There is a great deal of concern on a very bipartisan basis with our strategy in Syria,” said Rep. Adam B. Schiff (Calif.), the ranking Democrat on the intelligence panel. He declined to comment on specific provisions of the committee’s bill but cited growing pessimism that the United States will be in a position “to help shape the aftermath” of Syria’s civil war.

[snip]

“Assad is increasingly in danger, and people may be taking bets on how long he can last, but it’s largely not as a result of action by so-called moderates on the ground,” said a senior Republican aide in Congress, who spoke on the condition of anonymity, citing the sensitivity of the subject.

[snip]

“Unfortunately, I think that ISIS, al-Nusra and some of the other radical Islamic factions are the best positioned to capi­tal­ize on the chaos that might accompany a rapid decline of the regime,” Schiff said.

Underlying it all, though, appears to be yet another effort (one we’ve seen with propaganda in the press as well) to claim those linked to al Qaeda in Syria are “moderate,” which in turn permits insiders to believe they’ll have some control over Syria after our Sunni and Israeli allies pull off his defeat.

Remember: Devin Nunes has long shown skepticism about our efforts to use proxy terrorists to spread democracy. And Adam Schiff is simply smarter than the kind of person who typically gets to be a ranking member of an Intelligence Committee. Good for them for finally insisting on metrics and — absent that — reining in the CIA’s gravy train.

Devin Nunes Will Let Dragnet Lapse So Mitch McConnell Can Save Face?!?!

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NYT has a remarkable article describing how a number of hawks are willing to risk letting PATRIOT Act authorities lapse so Mitch McConnell can save face.

Senior lawmakers are scrambling this week in rare recess negotiations to agree on a face-saving change to legislation that would rein in the National Security Agency’s dragnet of phone records, with time running out on some of the government’s domestic surveillance authority.

[snip]

If negotiators accept minor changes to the House bill, it will mark a significant retreat for Senator Mitch McConnell of Kentucky, the majority leader, and Senator Richard M. Burr of North Carolina, the chairman of the Senate Intelligence Committee.

Sadly, the NYT continues the typically credulous mainstream reporting on this topic. For example, Mitch McConnell never really wanted a straight reauthorization.

Mr. McConnell and Mr. Burr wanted a straight extension of the existing surveillance authority, although an appeals court judge ruled this month that such authority was illegal.

False. Burr revealed what they want Friday night. They want to move bulky Internet production back to NSLs. They want to expand the current dragnet to include Internet calls and even straight IP (and, oddly, documents!), and they want to expand it well beyond its counterterrorism focus to include all foreign intelligence. They want to criminalize whistleblowing about this law in particular. They want to eliminate all special privacy protections — over the standard NSA ones — for US persons.

And very importantly, they want to use the claim to need a 2-year transition period to finally obtain the authorities for NSA to conduct the bulk collection they actually want to do, in which place they’ll be well positioned to claim having the government retain the data is most efficient.

I could go on. But after Friday night no journalists with any self-respect should propagate Mitch’s “straight reauthorization” canard, which — it was clear over a month ago — was only ever a negotiating tactic.

NYT also falsely claims Burr wants just Lone Wolf and Roving Wiretap made permanent.

Mr. Burr wants the so-called lone wolf and roving authorities to be made permanent to avoid cliffhangers like the one Congress finds itself in now. The House bill would extend them to December 2019.

The title to that section of Burr’s bill reads,

PERMANENT AUTHORITY FOR ACCESS TO BUSINESS RECORDS, ROVING SURVEILLANCE, AND INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 [my emphasis]

And the language of it repeals both parts of both laws that include a sunset.

But the really absurd part of this story — and to be fair, NYT has to report these arguments as if they’re serious, and I should be grateful they have been recorded in all their absurdity — is that Burr and Nunes are now claiming that the largest phone companies in the US don’t know how to 1) store data, or 2) “search stored phone data after a warrant [actually, a Reasonable Articulable Suspicion order, not a warrant] is issued, then communicate the results to the government.”

The two men have said phone companies, which would collect the data instead of the N.S.A. under the USA Freedom Act, are not equipped to handle the task.

[snip]

Leaders of the House Intelligence and Judiciary Committees from both parties, along with supporters in the Senate, said they could assuage the concerns of Senate Republicans by adding a certification process to ensure that telephone companies had developed the technology they needed to store the reams of data that were now gathered by the government. If the technology could not be certified, a longer transition period would kick in.

Mr. Burr said he would like that period to be two years, a proposal not very likely to be accepted by the House.

“The question is whether the technology can be developed in time, over a six-month window,” Mr. Nunes said in an interview. “I think it can be. I was at N.S.A. reviewing this 10 days ago.”

He added: “We believe six months works, but it wouldn’t be bad to have a little longer.”

But even that change has irked lawmakers, who worked for months on the compromise that passed the House. Representative Adam B. Schiff of California, the ranking Democrat on the House Intelligence Committee, said the technology in question — the ability to search stored phone data after a warrant is issued, then communicate the results to the government — was “a pretty minor deal” that could easily meet a certification deadline.

The men overseeing our intelligence community claim to not understand that phone companies store this information — and respond to lawful government requests for it — every day.

In truth, this is likely another ploy to expand the role of providers down the road (as happened under PRISM), after we’ve all become less vigilant — beyond simply providing phone records (as these silly Congressmen claim) to doing far more analysis.

After all, the only way these claims make sense, is if the government expects to get real pushback from providers going forward — and that’s not going to happen if all they want is call records delivered to the government, which telecoms have been doing forever.

So that’s the likely play: to set up some mechanism whereby the hawks can claim — in 6 months time — that telecoms are unwilling or unable (the same standard they use for drones killing!) to do what the government will ask. At which point we’ll be fighting to get the government out of an expanded dragnet business.

One more thing.

The Republicans also claim that the telecoms have been harassed by privacy advocates.

Republicans have also expressed a desire to protect the phone companies against harassment from privacy activists over their participation in a new surveillance program.

This is likely a bid to do something to shroud the dragnets (it won’t be just telecom going forward) in secrecy from here on out. Probably not the act-specific Espionage Act, like Burr wants, but probably some other means to ensure that no one ever gets standing to challenge what will still be an unconstitutional program going forward.

I guess they hope we won’t notice because we’re laughing at their other batty excuses so hard?

Maybe Petraeus’ Plea Deal Is More Interesting to the Benghazi Report than Hillary’s Emails?

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There is an exception to every rule, standard operating procedure, and poli­cy; it is up to leaders to determine when exceptions should be made and to ex­plain why they made them.

— David Petraeus’ Rules for Living, as presented by Paula Broadwell as they were being caught in an FBI investigation

Predictably, Trey Gowdy has subpoenaed more information about Hillary Clinton’s email personal email revealed this week.

But it seems he also ought to call David Petraeus in for another chat about Benghazi in light of details in the former CIA Director’s plea deal.

That’s because the Plea Documents show that the investigation into Petraeus and Paula Broadwell intersects with the Benghazi investigation in ways that are even more interesting than was already clear. Consider what those two timelines look like when you add in the fact that Petraeus lied to the FBI about leaking information to his mistress on October 26, 2012, which has been updated from this post (note that contemporaneous reporting dated Petraeus’ FBI interview to October 29).

From the sex and leaking standpoint, the revised timeline is interesting because it shows Petraeus and Broadwell together at — of all places! — the annual celebration for old-style subterfuge, the OSS dinner, between the time Petraeus lied to the FBI and the time Broadwell was interviewed a second time.

But from a Benghazi perspective, it shows that on the same day Petraeus lied to the FBI, Paula Broadwell made the accusation that the attack was really about freeing militia members held at the CIA annex. The next day Petraeus and Broadwell hobnobbed together among the old style spooks. and then days later — even as an FBI whistleblower was forcing the investigation into the public, without which it might have been dropped — Petraeus went on a “fact-finding” mission to Cairo, in part to consult with some of the people involved in the Benghazi response.

Petraeus did a report on that trip, but Dianne Feinstein was complaining that her committee had not received a copy of it on November 12 (Petraeus was resisting, in part, because he no longer worked at CIA).

There’s no evidence that the House Intelligence Committee consulted Petraeus’ trip report when they did their report on the attack. (Indeed, the report shows remarkable lack of interest in Petraeus’ role altogether, in spite of the fact that he watched the later parts of the attack develop via the drone surveillance camera feed piped to the SCIF at his home.)

Did either of the Intelligence Committees ever get the report on the trip Petraeus did after he knew he was in trouble with the FBI, at a time when his ex-girlfriend was claiming the reason behind the attack was entirely different from what we’ve been told?

As I’ve noted, more than anyone else, current HPSCI Chair Devin Nunes showed significant interest in that claim about detainees, as reflected in the backup to a report that Mike Rogers made sure to get done before he left Nunes in charge. In response to his question (as well as some questions about arms-running) Nunes got non-denials denials.

In a related detail, in the earlier session Nunes also elicited a non-denial denial about detainees (and accusation first leveled by David Petraeus’ mistress Paula Broadwell), the other alleged reason for the attack on US entities in Benghazi.

Mr. Nunes: Okay. To the detainees, were there ever any detainees at either of these locations in the last year of any kind?

Mr. Morell: Not with regard to the CIA facility, sir.

Mr. Kennedy: And the State Department does not engage in detentions overseas.

Rather than just answering no, between them Morell and Kennedy carved out a space where it might be possible the CIA (or someone else, possibly JSOC) were holding detainees at the TMF or elsewhere in Benghazi.

Maybe Petraeus’ last minute trip to do a personal investigation of the aftermath of Benghazi — the results of which Petraeus resisted sharing with the Committees investigating the attack — is just a coinkydink.

But given the timing — and Petraeus’ sweetheart plea deal — it’d be nice if the Benghazi Committee asked a few more questions about that coinkydink. Read more →

Benghazi: A Poster Child for Covert Ops Blowback

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You’ve no doubt heard that, last Friday (a pre-holiday Friday, as some people are already on their way to Thanksgiving), the Benghazi scandal ended with a fizzle.

The House Intelligence Committee released its report on the Benghazi attack, which basically says all the scandal mongering has been wrong, that Susan Rice’s talking points came from the CIA, that no one held up any rescue attempts, and so on and so on. This post will attempt to lay out why that might have happened. The short version, however, is that the report reveals (but does not dwell on) a number of failures on the part of the CIA that should raise real concerns about Syria.

Note that not all Republicans were as polite as the ultimate report. Mike Rogers, Jeff Miller, Jack Conaway, and Peter King released an additional views report, making precisely the points you’d expect them to — though it takes them until the 4th summary bullet to claim that Administration officials “perpetuated an inaccurate story that matched the Administration’s misguided view that the United States was nearing victory over al-Qa’ida.” Democrats released their own report noting that “there was no AQ mastermind” and that “extremists who were already well-armed and well-trained took advantage of regional violence” to launch the attack. Among the Republicans who presumably supported the middle ground were firebrands like Michele Bachmann and Mike Pompeo, as well as rising Chair Devin Nunes (as you’ll see, Nunes was a lot more interested in what the hell CIA was doing in Benghazi than Rogers). The day after the initial release Rogers released a second statement defending — and pointing to the limits of and Additional Views on — his report.

Now consider what this report is and is not.

The report boasts about the 1000s of hours of work and 1000s of pages of intelligence review, as well as 20 committee events, interviews with “senior intelligence officials” and 8 security personnel (whom elsewhere the report calls “the eight surviving U.S. personnel”) who were among the eyewitnesses in Benghazi. But the bulk of the report is sourced to 10 interviews (the 8 security guys, plus the Benghazi and Tripoli CIA Chiefs), and a November 15, 2012 presentation by James Clapper, Mike Morell, Matt Olsen, and Patrick Kennedy. (Here are  the slides from that briefing: part one, part two.) As I’ll show, this means some of the claims in this report are not sourced to the people who directly witnessed the events. And the reports sources almost nothing to David Petraeus, who was CIA Director at the time.

The FBI analyzed the intelligence better than CIA did

One of the best explanations for why this is such a tempered report may be that FBI performed better analysis of the cause of the attack than CIA did. This is somewhat clear from the summary (though buried as the 4th bullet):

There was no protest. The CIA only changed its initial assessment about a protest on September 24, 2012, when closed caption television footage became available on September 18, 2012 (two days after Ambassador Susan Rice spoke), and after the FBI began publishing its interviews with U.S. officials on the ground on September 22, 2012.

That is, one reason Susan Rice’s talking points said what they did is because CIA’s analytical reports still backed the claim there had been a protest outside State’s Temporary Mission Facility.

Moreover, in sustaining its judgment there had been a protest as long as it did, CIA was actually ignoring both a report from Tripoli dated September 14, and the assessment of the Chief of Station in Tripoli, who wrote the following to Mike Morell on September 15.

We lack any ground-truth information that protest actually occurred, specifically in the vicinity of the consulate and leading up to the attack. We therefore judge events unfolded in a much different manner than in Tunis, Cairo, Khartoum, and Sanaa, which appear to the the result of escalating mob violence.

In a statement for the record issued in April 2014, Mike Morell explained that Chiefs of Station “do not/not make analytic calls for the Agency.” But it’s not clear whether Morell explained why CIA appears to have ignored their own officer.

While the report doesn’t dwell on this fact, the implication is that the FBI was more successful at interviewing people on the ground — including CIA officers!! — to rebut a common assumption arising from public reporting. That’s a condemnation of CIA’s analytical process, not to mention a suggestion FBI is better at collecting information from humans than CIA is. But HPSCI doesn’t seem all that worried about these CIA failures in its core missions.

Or maybe CIA failed for some other reason. Read more →

Military Intelligence Industrial Complex Providing 30% Bonuses to Potential HASC and HPSCI Chairs

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Because of Buck McKeon and Mike Rogers’ retirement this year, the Chairmanships of both the House Armed Services Committee and the House Intelligence Committee will be up for grabs early next year.

Roll Call decided to see how this was affecting funding for the contenders to replace McKeon and Rogers.Their results were pretty striking. HASC contenders Mac Thronberry and Randy Forbes and HPSCI contenders Devin Nunes and Mike Pompeo are experiencing significantly bigger hauls from defense contractors than in the past.

Four of the top five candidates for the chairmanships of the House Armed Services and Intelligence panels have raised considerably more money this election cycle than they did at a similar point in 2012. The same four have also raised much more money from the defense industry than before – in some cases, more than doubling their takes.

Most of them, too, have raised more money in the first full quarter since the departures of the incumbent chairmen became official, and donated more to other candidates and GOP party committees than in the last cycle.

[snip]

Thornberry, Forbes, Nunes and Pompeo each have raised at least 30 percent more through the first six quarters of the 2014 election cycle than they did over same period of 2012. Only King — who was Homeland Security chairman through 2012 — has raised less. Nunes has raised the most overall: $2 million.

Thornberry, Nunes and Pompeo have more than doubled in the current election cycle the amount they got from the defense sector over the same period in the 2012 election cycle, and Forbes has reaped 40 percent more, while King’s dipped. Thornberry has received the most overall — $344,350.

Thornberry, too, saw the biggest leap from the most recent fundraising quarter than ended in June compared with the same quarter in the 2012 cycle, 84 percent. Forbes and Pompeo also saw increases over that period.

Click through to see how McKeon and Rogers’ retirement announcements set off this boondoggle and how the take has allowed the contenders to fund their colleagues as well.

Ah, democracy as our forefathers intended! Where campaign bribery plays a key role in determining who will oversee the National Security State.