Dianne Feinstein

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David Cole Turns in His Torture Homework Late, Gets a C

I was going to simply ignore David Cole’s annoying NYT op-ed, asking if the CIA got a bad rap with the SSCI Torture Report, until I saw the claims he made in his JustSecurity post on it.

Like many others, I commented on and wrote about the Torture Report when it was initially released in December, but the demands of the 24-hour news cycle meant that I – and I’m certain, everyone else who commented in that first week – did so without having had time to read the report and its responses in full.  The SSCI Report’s executive summary is 525 pages, and the responses by the CIA and the Republican minority members of the SSCI total 303 pages.  No one could possibly have read it all in those first few days.  And of course, by the time one could read it all, the news cycle had moved on.

David Cole (he now admits 2 months later) blathered without first reading what he was blathering about, and so he insists everyone else must have too, thereby discrediting the views of those of us who actually had done their homework.

This, in spite of the fact that some of us torture critics (not to mention plenty of torture apologists) were making the very same critiques he has finally come around to in the days after the report was released: significantly, the Torture Report did not include the early renditions and Abu Zubaydah’s earliest torture. And so, Cole argues, because it’s never easy to definitively show where a particular piece of intelligence comes from, we shouldn’t make an argument about what a disaster CIA’s torture program was and instead should just repeat that it’s illegal.

Let’s look at the steps Cole takes to get there, before we turn to the conclusions he ignores.

First, Cole throws up his hands helplessly in trying to adjudicate the dispute between CIA and SSCI over their intelligence.

Without the underlying documents, it’s not possible to resolve the competing claims, but many of the C.I.A.’s responses appear plausible on their face. At a minimum it is possible that the C.I.A.’s tactics did help it capture some very dangerous people planning future attacks.

In some cases, I’ll grant that you can’t determine where CIA (which is not always the same as US government, which is another problem with the scope of this report) learned a detail, though in others, CIA’s rebuttal is fairly transparently weak. But along the way we learn enough new about how helpless the CIA was in the face of even the claims that get shared in the unclassified summary — the most telling of which, for me, is that after being waterboarded, Khalid Sheikh Mohammed got the CIA to believe for 3 months that he had sent Dhiren Barot to Montana to recruit black Muslims in Montana (yes, really!) to start forest fires — to point to the problems of using torture as a means to address CIA’s intelligence gaps on al Qaeda. What an unbelievable waste of effort, all arising because torture was presented as something magic that might make KSM tell the truth.

Even more importantly, there’s the way that torturing Janat Gul delayed the discovery that the intelligence implicating him in election year plots was a fabrication, but not before Gul and the underlying fabrication served as the justification to resume torture and, in part, to roll out a dragnet treating all Americans as relevant to torture investigations. Both while he was being tortured and the following year, Gul also served as an excuse for the CIA to offer more lies to DOJ about what it was doing and why. Whether deliberately or not, torture served a very important function here, and it was about legal infrastructure, not intelligence. Exploitation.

Having declared himself helpless in the face of some competing claims but much evidence torture diverted the CIA from hunting down the worst terrorists, Cole then says SSCI has not proven its “other main finding,” which is that CIA lied about efficacy.

That conclusion in turn casts doubt on the committee’s other main finding — namely, that the C.I.A. repeatedly lied about the program’s efficacy.

[snip]

So why did the committee focus on efficacy and misrepresentation, rather than on the program’s fundamental illegality?

Let me interject. Here, Cole misrepresents the conclusion of the Torture Report, which leads him to a conclusion of limited value. It is not just that CIA lied about whether torture worked. CIA also lied about what they were doing and how brutal it was. It lied to Congress, to DOJ’s lawyers, and to (this is where I have another scope problem with the report, because it is demonstrably just some in) the White House and other cabinet members. That’s all definitely well documented in the Torture Report — but then, it was well-documented by documents released in 2009 and 2010, at least for those who were doing their homework.

Bracket that misrepresentation from Cole, for the moment, and see where he takes it.

Possibly because that meant it could cast the C.I.A. as solely responsible, a rogue agency. A focus on legality would have rightly held C.I.A. officials responsible for failing to say no — but it also would have implicated many more officials who were just as guilty, if not more so. Lawyers at the Justice Department wrote a series of highly implausible legal memos from 2002 to 2007, opining that waterboarding, sleep deprivation, confinement in coffinlike boxes, painful stress positions and slamming people into walls were not torture; were not cruel, inhuman or degrading; and did not violate the Geneva Conventions.

The same can be said for President George W. Bush, Vice President Dick Cheney and all the cabinet-level officials responsible for national security, each of whom signed off on a program that was patently illegal. The reality is, no one in a position of authority said no.

This may well explain the committee’s focus on the C.I.A. and its alleged misrepresentations. The inquiry began as a bipartisan effort, and there is no way that the Republican members would have agreed to an investigation that might have found fault with the entire leadership of the Bush administration.

But while the committee’s framing may be understandable as a political matter, it was a mistake as a matter of historical accuracy and of moral principle. The report is, to date, the closest thing to official accountability that we have. But by focusing on whether the program worked and whether the C.I.A. lied, the report was critically misleading. Responsibility for the program lies not with the C.I.A. alone, but also with everyone else, up to the highest levels of the White House, who said yes when law and morality plainly required them to say no.

Now, I’m very sympathetic with the argument that there are others, in addition to CIA, who need to be held responsible for torture — as I’ve noted repeatedly, apparently without even reading the entire set of reports, according to Cole. I think Cole brushes with too broad a brush; we have plenty of detail about individuals who are more culpable than others, both within DOJ and the White House, and we shouldn’t just throw up our hands on this issue, as Cole did with efficacy arguments, and claim to be unable to distinguish.

But Cole keeps coming back to the issue of legality, as if the people who went out of their way to put CIA back in the business of torturing give a flying fuck that torture is illegal.

And this is why it’s important to emphasize that the Torture Report shows CIA lied both about efficacy and about what they were doing and when: because until we understand how everyone from Dick Cheney on down affirmatively and purposely implemented a torture program in spite of an oversight structure and won impunity for it, it will happen again, perhaps with torture, perhaps with some other Executive abuse.

Let me point to one of the key new revelations from the Torture Report that goes precisely to Cole’s concern to explain why.

As I pointed out four and a half years ago, CIA decided to destroy the torture tapes right after giving their first torture briefing to Congress, to Porter Goss and Nancy Pelosi. Along with deciding to destroy the torture tapes, they also altered their own record of that briefing. In ACLU’s FOIA that had liberated that information, CIA managed to hide what it was they took out of the contemporaneous record of that briefing.

The Torture Report revealed what it was.

In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s [redacted]CTC Legal [redacted], excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”2454 After [redacted] blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to email with: “short and sweet.”

According to the CIA’s own records, in the very first briefing to Congress — which was already 5 months late and only told Congress about using torture prospectively — someone raised questions about the legality of the techniques (at least if done by other countries).

More than 12 years ago, someone — precisely the people our intelligence oversight system entrusts to do this — was raising questions about legality. And CIA’s response to that was to alter records, destroy evidence (remember, the torture tapes were altered sometime in 2002 before they were destroyed in 2005), and lie about precisely what they were doing for the next 7 years.

Finally, Cole remains silent about a very important confirmation from the Torture Report – one which President Obama had previously gone to some lengths to suppress – one which gets at why the CIA managed to get away with breaking the law. While SSCI may not have pursued all the documents implicating presidential equities aggressively enough, it did make it very clear that torture was authorized not primarily by a series of OLC memos, but by the September 17, 2001 Presidential Finding, and that neither CIA nor the White House told Congress that’s what had happened until 2004.

Torture was authorized in the gray legal zone that permits the President to authorize illegal actions. The rest follows from there. The remaining question, the question you need to answer if you want to stop the Executive when it claims the authority to break the law — and this is elucidated in part by the Torture Report — is how, bureaucratically, the rest of government serves to insulate or fails to stop such illegal activity. Of course, these bureaucratic questions can get awfully inconvenient awfully quickly, even for people like David Cole.

Did the CIA get a bum rap in the Torture Report? In part, sure, they were just doing what they were ordered, and the CIA routinely gets ordered to do illegal things. But if you want to prevent torture — and other Executive abuses — you need to understand the bureaucratic means by which intended oversight fails, sometimes by design, and sometimes by the deceit of the Executive. Some of that — not enough, but some key new details — appear in the Torture Report.

Dianne Feinstein Calls Out NCTC Head for Bullshit Torture Report Threat Assessment

Screen Shot 2015-02-12 at 4.23.40 PMToday’s SSCI public hearing was remarkably useful, in spite of Chairman Burr’s interrupting a chain of serious questions to ask a clown question of National Counterterrorism Center head Nick Rasmussen. Roy Blunt, Marco Rubio, and Angus King all asked questions about Authorizations to Use Military Force that will be useful in the upcoming debate.

The highlight, however, came when Dianne Feinstein asked Rasmussen whether the claims of great harm — provided to her just before she released the Torture Report in December — had proven to be correct.

Feinstein: And I have one other question to ask the Director. Um, Mr. Director, days before the public release of our report on CIA detention and interrogation, we received an intelligence assessment predicting violence throughout the world and significant damage to United States relationships. NCTC participated in that assessment. Do you believe that assessment proved correct?

Rasmussen: I can speak particularly to the threat portion of that rather than the partnership aspect of that because I would say that’s the part NCTC would have the most direct purchase on, and I can’t say that I can disaggregate the level of terrorism and violence we’ve seen in the period since the report was issued, disaggregate that level from what we might have seen otherwise because, as you know, the turmoil roiling in those parts of the world, not that part of the world, those parts of the world, the Middle East, Africa, South Asia, there’s a number of factors that go on creating the difficult threat environment we face.

So the assessment we made at the time as a community was that we would increase or add to the threat picture in those places. I don’t know that looking backwards now, I can say it did by X% or it didn’t by X%. We were also, I think, clear in saying that there’s parts of the impact that we will not know until we have the benefit of time to see how it would play out in different locations around the world.

Feinstein: Oh boy do I disagree with you. But that’s what makes this arena I guess. The fact in my mind was that the threat assessment was not correct.

Note, Ron Wyden used his one question to get Rasumussen to admit that he had only read the Torture Report summary in enough detail to conduct the threat assessment. Wyden informed Rasmussen there were other parts in the still-classified sections that he should be aware of as NCTC head.

DC’s Elite: Let Our General Go!

At almost precisely the moment the FBI started investigating who was pestering Tampa Bay socialite Jill Kelley, an investigation that would lead to the resignation and investigation of David Petraeus, John McCain called for an investigation into top Obama officials leaking details of covert ops to make themselves look good.

Outraged by two recent articles published by the New York Times, which exposed the extent of U.S. involvement in cyberattacks made against Iran and the White House’s secret ‘Kill List,’ John McCain (R-Ariz.) and Saxby Chambliss (R-Ga.) took to the Senate floor to admonish the administration, and accuse it of widespread disregard for national security.

“The fact that this administration would aggressively pursue leaks by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases, but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” McCain said.

Now, McCain is outraged! that former top Obama official David Petraeus is getting the callous treatment given to those being investigated for leaks.

U.S. Senators John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) today released the following statement on the handling of the investigation into former CIA Director David Petraeus:

“While the facts of the case involving General David Petraeus remain unknown and are not suitable for comment, it is clear that this investigation has been grievously mishandled.

“It is outrageous that the highly confidential and law enforcement-sensitive recommendation of prosecutors to bring charges against General Petraeus was leaked to the New York Times. It is a shameful continuation of a pattern in which leaks by unnamed sources have marred this investigation in contravention to fundamental fairness.

“No American deserves such callous treatment, let alone one of America’s finest military leaders whose selfless service and sacrifice have inspired young Americans in uniform and likely saved many of their lives.”

And of course, McCain had no problem when the first story about poor Petraeus’ treatment appeared in December, quoting lots of McCain’s buddies calling for justice! for Petraeus.

McCain (and his sidekick Lindsey) are not the only ones rending their garments over the injustice of a top Obama official being investigated for leaking classified details to make himself look good. Jason Chaffetz keeps complaining about it. And Dianne Feinstein took to the Sunday shows to declare that Petraeus has suffered enough. Richard Burr apparently made false claims about how the Espionage Act has been wielded, of late, even against those whose leaks caused no harm.

Golly, you’d think all these legislators might figure out they have the authority, as legislators, to fix the overly broad application of the Espionage Act.

Meanwhile, Eli Lake — who launched the campaign to Let Our General Go last month — has an odd story complaining about Petraeus’ treatment. To Lake’s credit, he mentions — though does not quote — how Petraeus celebrated John Kiriakou’s guilty plea. Here’s what Petraeus said then about the importance of respecting your vows to secrecy:

It marks an important victory for our agency, for our intelligence community, and for our country. Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.

Lake also suggests Paula Broadwell’s job — writing fawning biographies of the man she was fucking — was the same as Bob Woodward’s.

What’s more, Broadwell herself was writing a second book on Petraeus. When Broadwell — a graduate of West Point — was writing her first biography of him, she was given access to top secret information covering the period in which Petraeus commanded allied forces in Afghanistan. This arrangement is common in Washington for established authors. Sources for Bob Woodward, whose books often disclose classified information that is provided to him through semi-official leaks, are not investigated for betraying state secrets.

Maybe it is, maybe Woodward is nothing more than a power-fucker. But it obscures the key difference (which should not be true but is) that when the White House sanctions a book, they get to sanction self-serving leaks for it.

Finally, Lake misstates something about selective treatment.

Senior officials such as Petraeus, who serve at the highest levels of the national security state, are almost never punished as harshly as low- and mid- level analysts who are charged with leaking. When former CIA director John Deutch was found to have classified documents on his unsecure home computer, he was stripped of his security clearance and charged with a misdemeanor. 

An even better example — one not mentioned at all — is when Alberto Gonzales was found to have kept a CYA file, full of draft OLC memos and notes from a briefing on the illegal wiretap program, in a briefcase in his house. He resigned at the beginning of that investigation (and it has never been clear how much that played a role in his resignation; there are many interesting questions about Gonzales’ resignation that remain unanswered). But he suffered no consequences from keeping unbelievably sensitive documents at his house, aside from being denied the sinecure all other Bush officials got.

That said, that’s true of a lot of people in sensitive positions. Of the 40 witnesses who might be called against Jeffrey Sterling, for example, 6 have been found to have mistreated classified information (as has Sterling himself); that includes his direct supervisor while at CIA as well as 3 others cleared into the Merlin op (and I’m certain that doesn’t include Condi Rice, whose testimony the AIPAC defendants would have used to show how common leaking to the press was, nor does it include one other witness I strongly suspect has been involved in another big leak case). CIA withheld that detail from DOJ until right before the trial was due to start in 2011. But it does offer at least one metric of how common mistreating classified information is.

The prosecution of it, of course, is very selective. And that’s the problem, and David Petraeus’ problem, and Congress’ problem.

Yet that won’t ensure that Congress does anything to fix that problem with the means at their disposal, legislating a fix to stop the misuse of the Espionage Act. That’s because they like the overly broad use of it to cudgel leakers they don’t like. Just not the ones they’re particularly fond of.

Section 309: A Band-Aid for a Gaping Wound in Democracy

Someone surveilling our conversation "connection chained" Bob Litt and I while chatting at CATO.

Metadata: Someone surveilling our conversation “connection chained” Bob Litt and me chatting about spying on Americans in the Hayek Auditorium at CATO on 12/12/14.

On Friday, officials from James Clapper’s office confirmed in a number of different ways that the government obtains “vast troves” of Americans’ communication overseas. And rather than enforce Dianne Feinstein and Mark Udall’s suggestion that the intelligence community treat it under FISA — as the spirit of FISA Amendment Acts, which extended protection to Americans abroad, would support — Congress instead passed Section 309, a measure to impose limited protections on vast unregulated spying on Americans.

This all happened at CATO’s conference on surveillance, an awesome conference set up by Julian Sanchez.

My panel (moderated very superbly by Charlie Savage) revisited at length the debate between former State Department whistleblower John Napier Tye and Director of National Intelligence Civil Liberties Officer Alex Joel (into which I stuck my nose). As he did in his Politico post responding to Tye’s alarms about the risk of EO 123333 collection against Americans to democracy, Joel pointed to the topical limits on bulk collection Obama imposed in his Presidential Policy Directive 28, which read,

The United States must consequently collect signals intelligence in bulk in certain circumstances in order to identify these threats. Routine communications and communications of national security interest increasingly transit the same networks, however, and the collection of signals intelligence in bulk may consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value. The United States will therefore impose new limits on its use of signals intelligence collected in bulk. These limits are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section.

I noted — as I did in my Salon piece on the topic — that bulk collection for even just one topic means the collection of everything, as counterterrorism serves as the excuse to get all phone records in the US in the phone dragnet. Joel did not dispute that, explaining that PPD-28 only limits the use of data that has been bulk collected to these six purposes. PPD-28 does nothing to limit bulk collection itself. Though the fact that these limitations have forced a change in how the NSA operates is testament that they were using data collected in bulk for even more reasons before January.

The NSA is, then, aspiring to collect it all, around the world.

Which was a point confirmed in an exchange between Joel and Tye. Joel claimed we weren’t collecting nearly all of the Internet traffic out there, saying it was just a small fraction. Tye said that was disingenuous, because 80% of Internet traffic is actually things like Netflix. Tye stated that the NSA does collect a significant percentage of the remainder (he implied most, but I’d want to see the video before I characterize how strongly he said that).

Again, collect it all.

Our panel didn’t get around to talking about Section 309 of the Intelligence Authorization, which I examined here. The Section imposes a 5 year retention limit on US person data except for a number of familiar purposes — foreign intelligence, evidence of a crime, encryption, all foreign participants, tech assurance or compliance, or an Agency head says he needs to retain it longer (which requires notice to Congress). Justin Amash had argued, in an unsuccessful attempt to defeat the provision, that the measure provides affirmative basis for sharing US person content collected under EO 12333.

In a later panel at the CATO conference, DNI General Counsel Bob Litt said that the measure doesn’t change anything about what the IC is already doing.  →']);" class="more-link">Continue reading

The Emergency EO 12333 Fix: Section 309

In a last minute amendment to the Intelligence Authorization, the House and Senate passed a new section basically imposing minimization procedures for EO 12333 or other intelligence collection not obtained by court order. (See Section 309)

(3) Procedures.–

(A) Application.–The procedures required by paragraph (1) shall apply to any intelligence collection activity not otherwise authorized by court order (including an order or certification issued by a court established under subsection (a) or (b) of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803)), subpoena, or similar legal process that is reasonably anticipated to result in the acquisition of a covered communication to or from a United States person and shall permit the acquisition, retention, and dissemination of covered communications subject to the limitation in subparagraph (B).

(B) Limitation on retention.–A covered communication shall not be retained in excess of 5 years, unless–

(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence;

(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency;

(iii) the communication is enciphered or reasonably believed to have a secret meaning;

(iv) all parties to the communication are reasonably believed to be non-United States persons;

(v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and
the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the
date such retention is extended under this clause;

(vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional
intelligence committees on an annual basis; or

(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing–
(I) the reasons extended retention is necessary to protect the national security of the United States; (II) the duration for which the head of the element is authorizing retention;

(III) the particular information to be retained; and

(IV) the measures the element ofthe intelligence community is taking toprotect the privacy interests of UnitedStates persons or persons locatedinside the United States.

The language seems to be related to — but more comprehensive than — language included in the RuppRoge bill earlier this year. That, in turn, seemed to arise out of concerns raised by PCLOB that some unnamed agencies had not revised their minimization procedures in the entire life of EO 12333.

Whereas that earlier passage had required what I’ll call Reagan deadenders (since they haven’t updated their procedures since him) to come up with procedures, this section effectively imposes minimization procedures similar to, though not identical, to what the NSA uses: 5 year retention except for a number of reporting requirements to Congress.

I suspect these are an improvement over whatever the deadenders have been using But as Justin Amash wrote in an unsuccessful letter trying to get colleagues to oppose the intelligence authorization because of the late addition, the section provides affirmative basis for agencies to share US person communications whereas none had existed.

Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.

To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.

[snip]

In exchange for the data retention requirements that the executive already follows, Sec. 309 provides a novel statutory basis for the executive branch’s capture and use of Americans’ private communications. The Senate inserted the provision into the intelligence reauthorization bill late last night.

Which raises the question of what the emergency was to have both houses of Congress push this through at the last minute? Back in March, after all, RuppRoge was happy to let the agencies do this on normal legislative time.

I can think of several possibilities:

  • The government is imminently going to have to explain some significant EO 12333 collection — perhaps in something like the Hassanshahi case or one of the terrorism cases explicitly challenging the use of EO 12333 data and it wants to create the appearance it is not a lawless dragnet (though the former was always described as metadata, not content)
  • The government is facing new scrutiny on tools like Hemisphere, which the DOJ IG is now reviewing; if 27-year old data is owned by HIDTA rather than AT&T, I can see why it would cause problems (though again, except insofar as it includes things like location, that’s metadata, not content)
  • This is Dianne Feinstein’s last ditch fix for the “trove” of US person content that Mark Udall described that John Carlin refused to treat under FISA
  • This is part of the effort to get FBI to use EO 12333 data (which may be related to the first bullet); these procedures are actually vastly better than FBI’s see-no-evil-keep-all-data for up to 30 years approach, though the language of them doesn’t seem tailored to the FBI

Or maybe this is meant to provide the patina of legality to some other dragnet we don’t yet know about.

Still, I find it an interesting little emergency the intelligence committees seem to want to address.

SSCI Torture Report Key: They Knew It was Torture, Knew It Was Illegal

CryingJusticeOkay, here are the critical working documents:

The SSCI Torture Report

The Minority Response to SSCI Torture Report

Dianne Feinstein’s Statement

But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.

Here, from page 33 of the Report, is the language establishing the above:

…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.

My Yearly December Post on John Brennan Rolling DiFi on Torture Report

Brennan with TortureApproximately 358 days ago, I wrote a post titled,

Yup, John Brennan Rolled DiFi on the Torture Report

In it, I predicted,

Since I was right about John Brennan being completely untrustworthy about bringing an open mind to the evidence presented in the Torture Report, let me make another prediction based on this detail.

Committee aides said the panel hoped to finish work on an updated version of the report, taking note of CIA comments, by the end of the year. The committee could then vote to request declassification, which would allow the public to see the report, or at least parts of it.

What’s going to happen is the SSCI will water down the report, ignoring the clear implications of the evidence, in hopes of getting support for declassification. The Republicans on the committee, at least, still won’t vote to declassify it. Some section of the watered-down report will be released. And the historical record on torture will not reflect the clear evidence in the documentary record.

Dianne Feinstein could, of course, move to declassify the report in its current state.

But she won’t do that, and John Brennan knows it. You see, he knows DiFi wants to be loved by the spooks she oversees, and they could care less what she thinks of them, so long as they continue to hide the true nature of their organizations. And her desire to be loved by those she oversees makes her an easy mark.

When that post said, “by the end of the year”? That meant last year. 2013.

Didn’t happen.

Meanwhile, in recent days, we’ve learned that Brennan prevailed on one of the key fights between CIA and SSCI, succeeding in having the pseudonyms of pseudonyms redacted so we can’t track all the things Alfreda Bikowsky did, beyond the torture tourism we know she engaged in and the torture she subjected an innocent Khalid el-Masri to, before she got several more promotions at CIA.

And while I think today’s report, confirming that “Yup, John Brennan Rolled DiFi on the Torture Report,” adds another dynamic — that of CIA and the President and State publicly making clear that Dianne Feinstein will bear responsibility for any backlash over the revelations in the Torture Report, I think Brennan is still doing a victory lap.

Secretary of State John Kerry personally phoned Dianne Feinstein, chairman of the Senate Select Committee on Intelligence, Friday morning to ask her to delay the imminent release of her committee’s report on CIA torture and rendition during the George W. Bush administration, according to administration and Congressional officials.

[snip]

“What he raised was timing of report release, because a lot is going on in the world — including parts of the world particularly implicated — and wanting to make sure foreign policy implications were being appropriately factored into timing,” an administration official told me.  “He had a responsibility to do so because this isn’t just an intel issue — it’s a foreign policy issue.” 

“That’s a nice Torture Report you’ve got there, Dianne,” these men seem to be saying, “and we’ll happily take credit for your work. Unless something bad happens in which case expect us to throw you to the wolves.”

CIA (and NSA) always get Congress to back off oversight with threats like this — kudos to Senator Feinstein for remaining committed to releasing the report.

It’s just really really frustrating that we are here, a year later, with the men in charge still levying these kinds of threats. If the torture CIA did will cause blowback, then that’s CIA’s fault, George Bush’s fault. Dick Cheney’s fault.

On the USA Freedom Act’s Data Handshake

As I noted yesterday, part of the effort to pass the USA Freedom Act involved what I call a “data handshake:” A deal whereby all four major telecoms would keep call detail records 2 years, without a mandate to do so.

At Foreign Policy, I have more details on this — with a focus on how this works with the Business Records law that authorizes the phone dragnet.

The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.

The government has repeatedly told courts that under Section 215, the NSA can only ask telecoms for business records they already hold. Yet Feinstein seems to have revealed, perhaps unintentionally, that under the new law the telecom companies would be willing to hold records at least an extra six months just so the government could presumably spy on their customers, if necessary. And in order to keep the records available under the law, the companies would claim they were keeping the records for business reasons. By doing this orally, no records could be obtained under discovery in a customer lawsuit or leaked by an NSA whistleblower like Edward Snowden. The telecoms could claim that they are not agents of the nation’s spies, even after they seem to have agreed to a handshake deal making them into just that.

Compare agreeing to this data handshake with what Verizon said in June.

At a Senate hearing in June, Verizon’s Associate General Counsel Michael Woods explained that Verizon keeps call detail records for just 12 to 18 months. “We don’t have data five years back,” Woods explained in response to a question from Collins. “All collection would be from our ordinary business records.”

In June, Woods made clear that Verizon objected to holding call detail records longer. His written testimony insisted that “national security is a fundamental government function that should not be outsourced to private companies.” He described that if a telecom company were asked to “retain data for the use of intelligence agencies,” it would be serving as “an agent” of the government.

Now, as I conclude in my piece, the telecoms that agreed to the data handshakes were probably calculating, correctly, that their customers would be better off if they held the records for 6 months longer than they needed to given their business needs than having the government hold them at all. I get the logic behind this deal.

But it is indefensible. The law, as written, cannot oblige Verizon to hold these records. The reason it can’t is because the law was never intended to set up an intrusive dragnet. Had it done so –and hopefully if the government tries to do so now — then it would have been publicly debated. And the program’s inefficacy would have been a much bigger issue.

The strong-arming of telecoms, presumably including Verizon, into this data handshake ought to refocus efforts to find a better solution to get the government the coverage it actually needs, but without inventing dragnets that have not shown to be useful.

 

Dianne Feinstein Describes the Data Handshake

I’m going to transcribe some comments Dianne Feinstein made Tuesday night about how proponents of USA Freedom Act got around a data mandate requiring telecoms to keep data longer than they otherwise would. The short version? Rather than a data mandate, USA Freedom Act would have relied on a data handshake.

I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.  Senator Chambliss and I wrote a letter to the four big telecoms, and we asked them if they would hold the data. The answer came back from two, yes. And the answer came back from two, no. Since that time, the situation has changed — not in writing — but by personal testament from two of the companies, that they will hold the data for at least two years for business reasons. Now here’s the problem. The mandate that was inherent in the 215 Act is gone. But the fact is that the telecoms have agreed to hold the data. The President himself has assured me of this.

I’ll write more on this, which is legally unbelievably fascinating. But for now, I just wanted to post it.

The 2009 Last Ditch Attempt to Undercut the FISA Court

As I laid out in this timeline, sometime in fall 2009, the NSA submitted an end-to-end report describing the Internet dragnet. Then, weeks later, David Kris wrote Reggie Walton, admitting that the had been collecting data outside the categories approved by Colleen Kollar-Kotelly in 2004 — that is, admitting that the rosy picture NSA had painted in its end-to-end report was entirely false. Sometime shortly thereafter, DOJ decided not to submit its Internet dragnet reauthorization application, effectively shutting down the Internet dragnet on or around October 30, 2009 until John “Bates-Stamp” Bates reauthorized it sometime around July 2010.

Which is why I find the discussion of the PATRIOT reauthorization during precisely that time period so interesting.

On October 1 the Senate Judiciary Committee had its first open hearing on PATRIOT reauthorization.  At that point, an effort to require Section 215 have particular ties to terrorism got shut down in an action we now know served to preserve the phone dragnet. The discussion around it created the interest for a classified briefing. On October 7, they got that briefing. Also on October 7, the Obama Administration gave Jeff Sessions a bunch of changes they wanted off of what the bill had been on October 1.

On October 8, the Senate Judiciary Committee had another open hearing on PATRIOT reauthorization. The committee adopted Sessions changes over DiFi’s already watered down version of what Pat Leahy had originally pushed on October 1 (this is what elicited Russ Feingold’s concerns about SJC acting as the Prosecutors Committee). The changes limited Section 215 protections for libraries, fixed the gag order problem with NSLs with a non-fix that is similar to one included in USA Freedom Act. Most significantly, they watered down what would have been new minimization procedures for the PRTT authority (which were ultimately stripped in any case), making clear minimization procedures should only be adopted in exceptional circumstances. As I guessed correctly at the time, this was probably done to protect the PRTT dragnet that was collecting vast amounts of Internet metadata (as well as, contrary to Jeff Sessons’ claims in the hearing, content).

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

By asserting it had the authority to impose minimization procedures on the Internet dragnet, the FISC tried, utterly unsuccessfully, to prevent the NSA from illegally wiretapping Americans. When the FISC again asserted its authority to impose minimization procedures, NSA just took its toys and went overseas, where it didn’t have that meanie rubber stamp FISC to contend with.

I raise this not only because it suggests DOJ was making legislative efforts to undercut the FISC just as they discovered a huge problem with their Internet dragnet. But also because, in my opinion, the USA Freedom Act makes a similar effort to withdraw any claim the court might make to be able to impose and review compliance with minimization procedures. I don’t think it’s an Internet dragnet this time — as I’ll write later, I think it’s either location (which is fairly banal) or more interesting flow analyses. But I think Congress — with the support of civil liberties NGOs, this time — is still trying to undercut the way that FISC has best been able to impose some controls on the government’s spying.

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emptywheel @remesdh That's why this should be general rule. Both parties do it. No reason we should be surveilled if they're not.
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