The title was part of some smart CYA on the part of George Tenet. When things started to go south with the torture program in 2003, he wrote this document, ostensibly putting order to the torture program, but also making it clear the whole thing operated on Presidential authority. (The document, which should have been released to David Passaro in his criminal trial for torturing a detainee who subsequently died, was withheld, which prevented him from pointing out anything he did, he did with Presidential approval, so Tenet’s CYA didn’t help him at all.)
The judge in ACLU’s lawsuit to liberate torture documents, Alvin Hellerstein, decided the language should not be censored, and ordered the government release it. Then National Security Advisor Jim Jones wrote a secret declaration stating that it could not be disclosed. All the while, ACLU thought they were fighting to release a description of waterboarding, when in fact Hellerstein was trying to force the Administration to release the single detail that torture had been done on the President’s order.
But the Second Circuit overruled Hellerstein, declaring these 8 words a source and method (for the record, I guessed exactly what was behind the redaction so their secret was only useful for legal challenges).
That the torture program operated pursuant to a Finding (that is, as a covert op) had long been known thanks to blabby CIA types like John Rizzo. But it was formally declassified as part of the Torture Report. It got released today as part of a Jason Leopold lawsuit.
So there you have it. “Presidential Memorandum of Notification of 17 September 2001.” A secret Obama fought to the circuit court, now public for all the world to see.
It doesn’t feel so momentous, does it?
As part of the discussion in his book explaining how the CIA shifted from torture to killing, Mark Mazzetti tells the story of how the CIA balked at engaging in further torture after the Detainee Treatment Act.
After President Bush signed the bill into law, then-CIA Director Porter Goss wrote the White House saying the CIA would refuse to torture unless and until they got a guarantee they wouldn’t be prosecuted for doing it. In response, the Bush Administration sent Andy Card to the CIA to try to calm them down.
Card drove out to Langley intending to soothe the fears at CIA headquarters, but his visit was a disaster. Inside a packed conference room, Card thanked the assembled CIA officers for their service and their hard work but refused to make any firm declarations that agency officers wouldn’t be criminally liable for participating in the detention-and-interrogation program.
The room became restless. Prodded by his chief of staff, Patrick Murray, Porter Goss interrupted Card.
“Can you assure these people that the politicians will not walk away from the people who carried out this program?” Goss asked. Card didn’t answer the question directly. Instead, he tried to crack a joke.
“Let me put it this way,” he said. “Every morning I knock on the door of the Oval Office, walk in, and say, ‘Pardon me, Mr. President.’ And of course, the only person the president can’t pardon is himself.”
Card giggled after he said this, but his joke landed with a thud. The White House chief of staff, when asked whether President Bush would protect CIA officers from legal scrutiny, had suggested that the most they might be abel to rely on is a presidential pardon after the indictments and convictions were handed down. (127-128)
Goss effectively repeated a request the CIA had made, unsuccessfully, as early as July 13, 2002 (when, it should be said, Goss was ostensibly in charge of overseeing the program at the House Intelligence Committee, though there’s no reason to believe he knew about the earlier request): for an Administration guarantee that everyone involved in the torture program would be shielded from criminal consequences for kidnapping and torturing.
And in response, Card implied to these CIA officers and executives two things:
Now, Card wouldn’t have even tried such a joke unless he knew his audience knew that the torture program was based on a Presidential Finding — what we know to be the September 17, 2001 Gloves Come Off Memorandum of Notification.
There’s fairly clear evidence that CIA’s officers did know about it.
I’ve been in an car dealer service waiting room all morning, so I’m late to the story about Barack Obama telling Jello Jay Rockefeller he’s not as bad as Dick Cheney.
Sen. Jay Rockefeller (D-W.Va.) confronted the president over the administration’s refusal for two years to show congressional intelligence committees Justice Department Office of Legal Counsel memos justifying the use of lethal force against American terror suspects abroad.
In response to Rockefeller’s critique, Obama said he’s not involved in drafting such memos, the senators told POLITICO. He also tried to assure his former colleagues that his administration is more open to oversight than that of President George W. Bush, whom many Democratic senators attacked for secrecy and for expanding executive power in the national security realm.
“This is not Dick Cheney we’re talking about here,” he said, according to Democratic senators who asked not to be named discussing the private meeting.
Aside from the fact that — as I’ve pointed out — Obama is actually worse than the last year of the Bush Administration, when Acting OLC head Steven Bradbury was sharing OLC memos with Congress, I’m struck that Obama seems to forget he is the President, not the Vice President.
The comparison still is inapt. George Bush didn’t write any Executive Orders pretending to be transparent and his classification Executive Order effective empowered Dick Cheney to classify and instadeclassify at will (an authority that John Brennan seemed to use while he was in the White House).
But like Bush, Obama has people working for him who are as allergic to oversight as Dick Cheney. I pointed out yesterday, for example, that Obama’s Director of National Intelligence, James Clapper, thinks he shouldn’t even answer questions in open session and tried to stop publishing the number of people with security clearances.
Under Bush, DOD hid pictures of coffins; under Obama DOD just started hiding numbers of drone strikes.
Cheney went to the mat to hide who he had met with on his Energy Task Force. Obama’s National Security Council went to the mat to hide any mention that the President had authorized the torture program — and they hid it, they explained, because they were still using that very same authorization (though to do thinks like engage in targeted killings).
Obama seems to be hiding behind his own stated good intention (even while he admitted to Democratic Senators he would feel the way they do now if he were still in the Senate) just like Bush hid by his stated good intention that no one would leak the name of a CIA officer. Both, meanwhile, were either ignoring or pretending to ignore the sheer paranoia about secrecy of the men that work for them.
I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.
September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.
September 18, 2001: Congress passes the Authorization to Use Military Force.
November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.
Late 2008: Ruben Shumpert reported killed in Somalia.
June 24, 2009: Leon Panetta gets briefed on assassination squad program.
June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.
July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.
July 8, 2009: Silvestre Reyes announces CIA lied to Congress.
October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.
October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.
October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.
November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.
December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.
December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.
January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh Continue reading
In recent weeks, both Colleen McMahon and Ron Wyden have been hinting that there is more than one targeted killing memo (indeed, Wyden has been suggesting that for almost a year). Both also suggest the Administration may be relying on the President’s Article II authority–and not the Authorization to Use Military Force–in its drone program (or at least its strike(s) on Anwar al-Awlaki).
The attempted bombing of an airliner a few months later, on Dec. 25, stiffened the president’s resolve, aides say. It was the culmination of a series of plots, including the killing of 13 people at Fort Hood, Tex. by an Army psychiatrist who had embraced radical Islam.
Mr. Obama is a good poker player, but he has a tell when he is angry. His questions become rapid-fire, said his attorney general, Mr. Holder. “He’ll inject the phrase, ‘I just want to make sure you understand that.’ “ And it was clear to everyone, Mr. Holder said, that he was simmering about how a 23-year-old bomber had penetrated billions of dollars worth of American security measures.
When a few officials tentatively offered a defense, noting that the attack had failed because the terrorists were forced to rely on a novice bomber and an untested formula because of stepped-up airport security, Mr. Obama cut them short.
“Well, he could have gotten it right and we’d all be sitting here with an airplane that blew up and killed over a hundred people,” he said, according to a participant. He asked them to use the close call to imagine in detail the consequences if the bomb had detonated. In characteristic fashion, he went around the room, asking each official to explain what had gone wrong and what needed to be done about it.
“After that, as president, it seemed like he felt in his gut the threat to the United States,” said Michael E. Leiter, then director of the National Counterterrorism Center. “Even John Brennan, someone who was already a hardened veteran of counterterrorism, tightened the straps on his rucksack after that.”
David Axelrod, the president’s closest political adviser, began showing up at the “Terror Tuesday” meetings, his unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the president’s other aspirations and achievements.
In the most dramatic possible way, the Fort Hood shootings in November and the attempted Christmas Day bombing had shown the new danger from Yemen. Mr. Obama, who had rejected the Bush-era concept of a global war on terrorism and had promised to narrow the American focus to Al Qaeda’s core, suddenly found himself directing strikes in another complicated Muslim country.
The very first strike under his watch in Yemen, on Dec. 17, 2009, offered a stark example of the difficulties of operating in what General Jones described as an “embryonic theater that we weren’t really familiar with.”
It killed not only its intended target, but also two neighboring families, and left behind a trail of cluster bombs that subsequently killed more innocents. It was hardly the kind of precise operation that Mr. Obama favored. Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.
The sloppy strike shook Mr. Obama and Mr. Brennan, officials said, and once again they tried to impose some discipline.
In Pakistan, Mr. Obama had approved not only “personality” strikes aimed at named, high-value terrorists, but “signature” strikes that targeted training camps and suspicious compounds in areas controlled by militants.
But some State Department officials have complained to the White House that the criteria used by the C.I.A. for identifying a terrorist “signature” were too lax. The joke was that when the C.I.A. sees “three guys doing jumping jacks,” the agency thinks it is a terrorist training camp, said one senior official. Men loading a truck with fertilizer could be bombmakers — but they might also be farmers, skeptics argued.
Now, in the wake of the bad first strike in Yemen, Mr. Obama overruled military and intelligence commanders who were pushing to use signature strikes there as well.
“We are not going to war with Yemen,” he admonished in one meeting, according to participants.
His guidance was formalized in a memo by General Jones, who called it a “governor, if you will, on the throttle,” intended to remind everyone that “one should not assume that it’s just O.K. to do these things because we spot a bad guy somewhere in the world.”
The passage purports to explain how the Administration imposed limits on the drone program in response to the al-Majala cruise missile strike (remember, the al-Majala attack was launched from a ship, not a drone). The passage is a misleading mess–which I’ll describe at more length below.
Just as interesting, though, it leads up to the description of a James Jones memo laying out limits to–at a minimum–our strikes in Yemen. Jones’ memo may well be one of the things responsive to–at least–ACLU’s targeted killing FOIA which the Administration is so squeamish about releasing.
And the sloppiness of this passage makes that all the more interesting. The chronology it tells looks like this:
December 25, 2009 UndieBomb attack
November 5, 2009 Fort Hood attack
[unknown date] Axelrod at Terror Tuesdays
December 17, 2009 al-Majala attack
[unknown date] James Jones memo
Described in this way, the passage suggests that we identified a new risk in Yemen–a claim emphasized by this passage:
the Fort Hood shootings in November and the attempted Christmas Day bombing had shown the new danger from Yemen
In response, the passage suggests misleadingly, we launched the attack against al-Majala, which was a disaster. And in response Obama and the Moral Rectitude Drone Assassination Czar imposed some discipline.
The sloppy strike shook Mr. Obama and Mr. Brennan, officials said, and once again they tried to impose some discipline
But of course, that can’t be how it happened. While, within days of the Nidal Hasan attack, Pete Hoekstra had rushed to the press to expose Hasan’s communications with Anwar al-Awlaki, we also know that nothing in those communications showed Awlaki directed Hasan’s attack. And the December 25 attack surely can’t be the justification for the December 17 attack on al-Majala.
Moreover, the NYT conveniently doesn’t mention that the December 17 attack on al-Majala was followed by a December 24 attack on Awlaki and Nasir al-Wuhayshi. That allows them to avoid mentioning that on the day we first targeted Awlaki, the intelligence community believed him not to be operational. Which, in turn, also allows them to leave unclear whether the James Jones memo–written in response to a strike on December 17–was in operation yet when the US first tried to kill Awlaki on December 24.
This sloppy passage about “the sloppy strike” seems to cover up some other really key details. Continue reading
I have been pretty critical of Obama’s appointment of James Clapper to be Director of National Intelligence. And while I still have my concerns about Clapper’s close ties to the Intelligence Industrial Complex, I am heartened by Steven Aftergood’s report that Clapper continues to express a willingness to allow GAO to review intelligence functions.
DNI James R. Clapper expressed a considerably narrower view of what should be off-limits to GAO [than then National Security Advisor James Jones did in a letter sent in May] in public remarks (pdf) earlier this month: “I am more concerned or sensitive about GAO getting into what I would consider sort of the core essence of intelligence – that is, evaluating sources and methods, critiquing national intelligence estimates, doing this sort of thing, which I think strikes at the very essence of what the intelligence committees were established to do.”Even so, he suggested that individual GAO staff members could also pursue such highly sensitive matters if this was formally done under direction of the intelligence committees:
“Now, [if] they want to have the GAO assist, detail GAO staff to – if they have the subject matter experts – to the committees. I think that’s fine as long as it’s done under the auspices of the committees when you’re getting at the core essence of what intelligence is and does,” Gen. Clapper said.
Well see when DNI submits its guidance on GAO oversight to Congress next May. But I applaud, at least thus far, Clapper’s sustained willingness to allow Congress to rely on GAO’s skills as it tries to conduct oversight of the intelligence community.
Update: Typo in headline fixed.
In a an interview with me on intelligence reform on Saturday, Speaker Pelosi suggested that the White House should either accept real reform of the oversight function–including some version of House amendments on GAO review of intelligence programs and expanded intelligence briefing beyond the Gang of Four–or accept full responsibility if anything goes wrong with its intelligence programs, because the intelligence committee (or at least the House intelligence committee) cannot exercise effective oversight under the current rules.
Recent coverage on the intelligence reform routinely points out that Speaker Pelosi refuses to budge on these two issues. But it rarely explains why Pelosi is so adamant about these reforms. In our interview, Pelosi (and Jan Schakowsky, who was in the room) laid out some of the reasons: Pelosi discussed the times when Gang of Four members were briefed but could not tell others (including an oblique discussion of the games CIA played with their briefings of her on torture). Schakowsky reminded Pelosi that Congress did not know the intelligence “justifying” the Iraq War. The Speaker also described a time when expanding numbers of House staffers were read into a topic only briefed to the Gang of Four, even while the members of the committee were not briefed. Pelosi mentioned the investigation Schakowsky’s subcommittee did, which concluded that CIA had failed to inform the Intelligence Committee of five major incidents. Schakowsky described the resource and expertise limitations on the committee and explained how GAO could alleviate that. Pelosi described an unevenness between the way the White House treats non-compartmented intelligence requests from the Senate and the House–including deciding to prevent specific members from seeing particular intelligence.
And both women described the absurdity by which a quarter-million contractors can get Top Secret clearance but the members of Congress selected to conduct oversight over Executive Branch intelligence activities (including, in an ideal world, over those very same contractors) couldn’t get access to the same information the contractors got.
Pelosi and Schakowsky seemed thoroughly frustrated with the joke that has become of intelligence oversight, particularly since the Bush Administration found a bunch of new ways to game the system and now the Obama Administration has threatened to veto House efforts to eliminate the ways Bush succeeded in gaming the system.
And of course, we discussed all these complaints in the context of last week’s WaPo series and what Pelosi calls the “Leviathan” of the intelligence contracting world, in which, right now, Congress can’t conduct cost analysis of contractors or measure the efficacy of the outsourced programs.
Now, I’m pretty sympathetic with the frustration with the arrogance of Administrations that refuse to share information.
Nancy Pelosi: Now, not having to do with the difference between ranking and regular members, when I became Ranking Member, I was in the room all the time and this and that oh my god and then you can’t and members are taking votes and you’re thinking, ‘You don’t even know what you’re voting on.’
So but if you’re a Senator–and this is why the Senate doesn’t mind that much–if you’re a Senator and you want to go and get any information on intelligence–I’m not talking about highly compartmented–
Marcy Wheeler: Wiretapping and interrogation…
Pelosi: Well, it just depends on what they might be at any given time. I’m just talking about intelligence information. Intelligence. You’re a Senator [knocks on table] Here it is. You’re a House member, you have to have a vote of the Committee.
Schakowsky: Yes you do.
Pelosi: … to get it. Which you may or may not get. And which the Administration may or may not approve, depending on who it is and the rest of that. Continue reading
A number of you have been talking in threads about this WaPo article describing the NSC’s "expanded" power.
President Obama plans to order a sweeping overhaul of the National Security Council, expanding its membership and increasing its authority to set strategy across a wide spectrum of international and domestic issues.
The result will be a "dramatically different" NSC from that of the Bush administration or any of its predecessors since the forum was established after World War II to advise the president on diplomatic and military matters, according to national security adviser James L. Jones, who described the changes in an interview. "The world that we live in has changed so dramatically in this decade that organizations that were created to meet a certain set of criteria no longer are terribly useful," he said.
The new structure, to be outlined in a presidential directive and a detailed implementation document by Jones, will expand the NSC’s reach far beyond the range of traditional foreign policy issues and turn it into a much more elastic body, with Cabinet and departmental seats at the table — historically occupied only by the secretaries of defense and state — determined on an issue-by-issue basis. Jones said the directive will probably be completed this week.
I actually think this is a good thing–indication that Obama will not view national defense to be exclusively a military thing. How much better off will we be, for example, if Steven Chu is at the table with Bob Gates and James Jones and Hillary Clinton when they’re discussing energy issues and climate change? I’d like to have the Nobel Prize winning scientist participating, thank you, and this reorganization appears designed to do just that.
Today, Jones described some of these changes in a speech at the Munich Conference on Security Policy (via email). Here are the bits addressing changes to the NSC:
I would like to take just a moment to speak to you about his approach to national security and in fact international security and the role that I see the National Security Council playing. First and foremost the President’s strategic approach will be grounded in the real understanding of the challenges we face in the 21st century. We must simply better understand the environment that we are in. The President, if nothing else, is a pragmatist. Continue reading
I pointed out the other day that those worried about Obama’s foreign policy plans ought to be more focused on his National Security Advisor, reported to be retired Marine General James Jones, than Hillary at State.
And there are reasons to be concerned about Jones. For example, Jones currently leads a US Chamber of Commerce initiative to forge an energy consensus that espouses some questionable views (though I am thrilled about an NSA who has been focusing on energy in recent years).
Eli Lake offers a different view, focusing on Jones’ possible tension with Hillary as it relates to Middle East peace. Lake argues that Jones will be much more accommodating of (moderate) Palestinian views in any negotiations than Hillary.
Last November, Condoleezza Rice appointed [Jones] as her special envoy for Middle East security, with a particular emphasis on working with the Israel Defense Forces (IDF) and Palestinian security services. Last August, he drafted a report on security in the Palestinian territories that is said to have been highly critical of Israel’s policies in the territories and its attitude toward the Palestinian Authority’s security services. The White House and State Department opted not to publish the report.
In August, Israel’s leading newspaper, Ha’aretz, reported that the draft report challenged Israel’s conception of its security interests in the West Bank as being overly broad, and that the IDF in particular was too dismissive of the Palestinian security services.
In his interview with Inside the Pentagon, Jones said that the Palestinians should be granted increasing degrees of local sovereignty over the West Bank until an independent state is born–with an emphasis on giving the Palestinians experience with governance. On Sunday, Ha’aretz reported that Jones favors dispatching a NATO force to keep the peace in the interim. That’s a plan that the Israeli government would likely fiercely resist on the grounds that the Jewish state’s defense doctrine has always spurned the presence of foreign troops on its territory and that it could be a reprise of the disasters of the U.N. mission to Lebanon.
Now, consider his potential nemesis, Hillary Clinton. It is true that there is some doubt about where she ultimately lands on the Israel-Palestine question–confusion that followed her famous hug with Suha Arafat. Continue reading